R v O'Meara [2003] NSWCCA 206

New South Wales Court of Criminal Appeal

CITATION : R v O'Meara [2003] NSWCCA 206 HEARING DATE(S) : 21 July 2003 JUDGMENT DATE : 21 July 2003

JUDGMENT OF : Tobias JA at 1; James J at 11; Howie J at 12 DECISION : Leave to Appeal refused; Notice of Motion dismissed

CATCHWORDS : Move to appeal against decision of trial judge to refuse permanent stay of proceedings - Trial concluded with finding of guilty - Whether there was anything left of substance to stay - Whether refusal of leave to appeal will prevent same grounds from being raised in subsequent appeal from conviction - Non-reportable - Non-distributable LEGISLATION CITED : Criminal Appeal Act 1912, s 5F(3), s 5F(6) PARTIES : Regina Kenneth Ian O'Meara FILE NUMBER(S) : CCA 60122/03 COUNSEL : The Applicant appeared in person R Hulme SC for the Respondent SOLICITORS : S E O'Connor for the Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 97/21/3206 FILE NUMBER(S) : LOWER COURT Graham DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60122/03

TOBIAS JA B JAMES J HOWIE J

MONDAY 21 JULY 2003 REGINA v Kenneth Ian O'MEARA Judgment 1 TOBIAS JA: Before this Court is a Notice of Motion filed by the applicant on 16 April 2003 seeking leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 against an order of his Honour Judge Graham of 18 March 2003 refusing the applicant a permanent stay of proceedings of his trial on three charges which had commenced on 17 March 2003. 2 The offences with which the applicant had been charged were as follows. The first was that on or about 15 February 1997 at Tahmoor in the State of New South Wales he did cultivate not less than the commercial quantity of a prohibited plant namely cannabis. The second was that on the same date and at the same place he did possess a firearm namely, a .22 Jennings self-loading pistol without being authorised to do so by licence or permit. The third was that on the same date and at the same place he did possess a firearm namely a 12 gauge Mossberg repeating shotgun without being authorised to do so by licence or permit. 3 The essence of the applicant's case before Judge Graham was that a permanent stay should be granted upon four bases. The first was that the committal proceedings pursuant to which he was committed for trial were improperly conducted; the second was that as the applicant was unrepresented and indigent and subject to stringent bail conditions he was unable to work and therefor could not afford legal representation and had been refused legal aid; the third was that he was unable, because of those bail restrictions, to make his own enquiries for the purpose of locating potential witnesses and, fourthly that as a result of the execution of a search warrant by the Australian Federal Police on 26 February 2003 the computer on which he said he conducted all his research with respect to his coming trial was removed from his possession with the consequence that he was unable to gain access to the material thereon. It was accordingly submitted to his Honour that a stay should be granted because it would be impossible for the applicant to obtain a fair trial. 4 At the end of a lengthy judgment his Honour determined that the test of unfairness advocated by the applicant was not satisfied with the consequence that, with the assistance of the Court as necessary, there was no reason why the applicant would not be able to properly conduct his trial in a manner which was fair to him. He accordingly refused the applicant's application. 5 Thereafter the applicant was arraigned before a jury on 29 April 2003. The applicant refused to plead to each of the subject charges on the ground that the Crown was incompetent to bring the charges with the consequence that his Honour entered a plea of "not guilty" on each. Thereafter the trial proceeded until 18 June 2003 when the applicant was found guilty by the jury on all three counts. After the verdicts the applicant was remanded in custody and the matter has now been stood over for sentence to 1 August 2003. 6 In my opinion, leave to appeal the decision of Judge Graham dismissing the application for a permanent stay should be refused. My reason for holding this view is that the trial has now proceeded to finality and the applicant awaits sentencing. As the trial has concluded there is nothing of substance left to stay. Accordingly, the present application is misconceived. 7 Upon being sentenced, the applicant will be entitled, if he so wishes or is otherwise so advised, to appeal to this Court against both his conviction and any sentence imposed upon him. In this regard, s 5F(6) of the Criminal Appeal Act provides as follows: "If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related." 8 It follows from the provision referred to that it will be open to the applicant to appeal his conviction to this Court and to raise in that appeal all or any of the matters that he now seeks to agitate in the application currently before us. Clearly, it would be far more appropriate for those matters to be dealt with on an appeal from the applicant's conviction on the charges in question for then the Court will be in a far better position to determine whether any or all of the matters currently advanced by the applicant resulted in him not receiving a fair trial. 9 Before us this morning, the applicant in particular sought to press upon us the fact that by refusing leave to appeal, we would be upholding committal procedures in the Local Court which, in his view, were not according to law. With respect, any refusal of leave in this matter for the reasons I have indicated cannot be taken as constituting this Court's imprimatur to the way in which the committal was conducted, assuming it was conducted otherwise than in accordance with the law, a matter upon which we do not seek to express any opinion. 10 Accordingly, for the foregoing reasons, leave to appeal is refused and the notice of motion is dismissed. 11 B JAMES J: I agree with the presiding judge for the reasons given by his Honour. Leave to appeal should be refused. 12 HOWIE J: I also agree. 13 TOBIAS JA: The order of the Court is that the notice of motion for leave to appeal is dismissed. **********