O'Meara v R [2006] NSWCCA 131

New South Wales Court of Criminal Appeal

CITATION: O'Meara v R [2006] NSWCCA 131

16 May 2005 25 May 2005 HEARING DATE(S): 27 July 2005 28 July 2005 6 September 2005 7 September 2005

JUDGMENT DATE: 28 April 2006

JUDGMENT OF: Simpson J at 1; Buddin J at 254; Hall J at 255

DECISION: (i) appeal against convictions dismissed; (ii) leave granted to appeal against sentences; (iii) each appeal against sentence dismissed.

CATCHWORDS: appeal against conviction - charge of cultivate no less than commercial quantity of cannabis - two charges of unauthorised possession of firearm - appellant unrepresented at trial and on appeal - application for stay of proceedings - appellant unrepresented and indigent - application refused - appellant refused leave to appeal - grounds of appeal - appeal against refusal of stay - pre-trial voir dire - pre-trial procedures - - whether court should have held inquiry into appellant's fitness to be tried - appellant's medical fitness to continue with trial - appellant complains of voir dire being held in absence of jury - items taken from appellant's home in execution of two search warrants - bail conditions - evidence of identification of appellant - evidence alleged to have been illegally or improperly obtained - seizure of items in execution of search warrant - trespass to property - validity of search warrant - validity of certificate of identification of cannabis plants - evidence that shotgun was previously stolen - evidence of appellant's possession of police badge - evidence before jury in error - irregularity - no consequences - no miscarriage of justice - whether evidence illegally or improperly obtained - no such evidence - juror ineligibility - ground abandoned - alleged improper relationship between members of jury and members of prosecution team - no impropriety established - ground abandoned - execution of bench warrants during course of trial - alleged by appellant to have been observed by some jury members - ground abandoned - double jeopardy - certificate of dismissal of count of goods in custody - amendment of indictment - power to grant leave to amend indictment - separate trial of counts - abuse of process - official amnesty with respect to possession of firearms - firearms legislation repealed and replaced by time of trial - effect of repeal - prerepeal operation preserved by s30 Limitation Act 1987 - asserted bias of trial judge - post conviction remarks - no bias or reasonable apprehension of bias established - complaint about summing up - directions with respect to failure of accused person to give evidence - directions with respect to failure to call a witness - directions concerning firearms amnesty - verdict asserted to be unsafe and unsatisfactory - whether jury properly sworn - validity of indictment - whether appellant charged on indictment with offences that could only be prosecuted summarily - whether appellant initially charged under Firearms Act 1996 or Firearms Act 1989 - application for leave to appeal against sentence - comparable offender - whether irrelevant or unsubstantiated circumstances taken into account on sentencing - whether prior convictions wrongly taken into account - no error - appeal against conviction dismissed - leave granted to appeal against sentences - each appeal dismissed