R v O'SULLIVAN [2001] NSWSC 772

New South Wales Supreme Court

CITATION : R v O'SULLIVAN [2001] NSWSC 772 FILE NUMBER(S) : SC 70067/01 HEARING DATE(S) : JUDGMENT DATE : 7 September 2001

PARTIES : Regina Michael John O'Sullivan JUDGMENT OF : Hulme J at 1

COUNSEL : SOLICITORS : Crown: Mr Warren Abadee Applicant: Conditsis & Associates CATCHWORDS : Section 474D Application DECISION : The matter is to be referred to the Court of Criminal Appeal

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: S70067/01

Friday, 7 September 2001

HULME J Michael John O'SULLIVAN JUDGMENT

HIS HONOUR :

1 On 4 July 2001, Michael O'Sullivan caused to be filed an application under Sections 474D and 474E of the Crimes Act seeking an enquiry into convictions and sentences imposed on him and that that enquiry be referred to the Court of Criminal Appeal. 2 The offences of which the Applicant was convicted were:- (1) Supply a prohibited drug (heroin) in contravention of Section 25(1) of the Drugs Misuse and Trafficking Act 1985 and (2) Administer a prohibited drug contrary to Section 12(1) of the Drugs Misuse and Trafficking Act 1985. 3 The convictions occurred on 17 January 1992 at the Gosford Local Court and were confirmed by the District Court at Gosford on 5 June 1992. 4 At the Local Court the Applicant was sentenced to 6 months imprisonment on the first charge and 3 months imprisonment on the second. 5 On his appeal to the District Court the sentences were changed. In respect of the first offence, a 2 year deferred sentence was imposed and in respect of the second, 10 months imprisonment to be served by way of periodic detention was imposed on the second. 6 To the charges, the Applicant pleaded guilty. His Notice of Appeal to the District Court asserted that he was not guilty but that aspect of his appeal was abandoned and only an appeal on sentence proceeded with. 7 In an Affidavit filed in support of the application, Mr O'Sullivan has asserted that his initial plea was entered because he took the view he would not be able to successfully defend the charges. In fact he had written out a confession to the first of the offences. He asserts that he did so because of threats against him by particularly a Detective Eade. Although, as I have said, the confession relates only to the first charge, I have no difficulty in accepting that if Mr O'Sullivan's evidence to which I have referred is true, it would have induced him to plead to the second offence also. 8 Notes of a solicitor engaged by Mr O'Sullivan in connection with the District Court appeal show that at an initial conference Mr O'Sullivan desired to appeal against the convictions. In his Affidavit, Mr O'Sullivan says he was advised that he didn't have any chance of succeeding in an appeal against the convictions and it may be inferred that this and the matters to which I have referred above, were the cause of the appeal being limited to the question of sentence. 9 The conduct of Detective Eade, including that involving Mr O'Sullivan, appears to have been the subject of a deal of evidence before the Police Royal Commission. Although neither that evidence nor any part of the Commission's reports referring to Detective Eade has been placed before me, Mr O'Sullivan asserts that Detective Eade was dismissed from the Police service on 9 January 1996 on the grounds of misconduct and, on 18 May 2001, convicted of the following offences:- (1) Inciting, solicit and procure the supply of prohibited drugs (Drug Misuse and Trafficking Act s27), and (2) Knowingly give false testimony (Royal Commission Act 1923, s21). 10 In 1998 Mr O'Sullivan submitted to the New South Wales Police Service Internal Affairs Command a draft copy of a petition pursuant to Section 100B (now Section 100G) of the Justices Act. In a response of 15 February 1999, Detective Inspector Champion observed that having reviewed the material in the Petition he was of the view that on a balance of probability, there would be some cause to challenge the evidence and processes resulting in Mr O'Sullivan's conviction, particularly given that there was substantial evidence of similar misconduct by Detective Eade. The response also referred to there being evidence of corrupt activities on the part of the Gosford Drug Unit. Mention is also made of three other police officers who were apparently involved in the charging of Mr O'Sullivan. Although the statements concerning these officers do not provide any positive evidence of misdeeds on their part, the statements also provide no grounds for concluding that they were honest. Detective Inspector Champion said that the Special Crime and Internal Affairs would support a review of Mr O'Sullivan's conviction being conducted pursuant to Section 100G of the Justices Act. 11 In due course the Attorney General's Department directed that Mr O'Sullivan's convictions be referred back to the Local Court in accordance with the provisions Section 100B of the Justices Act. 12 In due course that occurred. On 4 May 2001, Mr J L Swanson Magistrate delivered his decision. His Worship recorded that while on the material placed before him, there might be proper grounds for the annulment of the convictions and penalties imposed by the District Court, it was inappropriate for him to make any such orders because the ultimate convictions and sentences were those of the District and not the Local Court. 13 A copy of Mr O'Sullivan's application to this court was in accordance with the usual practice submitted to the Crown Solicitor's Office. By letter of 10 August 2001, the Crown Solicitor has indicated that the Attorney General supports the application that the relevant convictions be referred to the Court of Criminal Appeal. 14 The matters to which I have referred clearly show that, within Section 474E(2) of the Crimes Act "there is a doubt or question as to the convicted person's guilt" and that it is appropriate to refer the matters to the Court of Criminal Appeal. 15 Accordingly, I refer to the Court of Criminal Appeal the following convictions of, and sentences imposed upon, Mr Michael O'Sullivan:-