O'Grady v R [2012] NSWCCA 62

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Grady v R [2012] NSWCCA 62 Hearing dates: 30 September 2011 Decision date: 13 April 2012 Before: Whealy JA Hislop J Latham J Decision: Appeal against conviction dismissed Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: RPS v R [2000] HCA 3 ; 199 CLR 620 Azzopardi v The Queen [2001] HCA 25 ; 205 CLR 50 Dyers v R [2002] HCA 45 Category: Principal judgment Parties: Andrew William O'Grady - (Appellant) Regina - (Crown Respondent) Representation: Counsel G Wendler - (Appellant) M Cinque - (Crown Respondent) Solicitors Saba El-Hanania Lawyers - (Appellant) S Kavanagh Solicitors for Public Prosecutions - (Crown Respondent) File Number(s): 2009/9964 Decision under appeal Date of Decision: 2010-09-17 00:00:00 Before: HG Murrell SC DCJ File Number(s): 2009/9964

Judgment 1WHEALY JA : I agree with Latham J and with the order proposed by her Honour. 2HISLOP J : I agree with Latham J. 3LATHAM J : The appellant appeals against his conviction before a jury on one count of specially aggravated break enter and steal in company, pursuant to s 112(3) of the Crimes Act 1900. The circumstances of special aggravation were constituted by the wounding of the victim of the offence, who was the occupant of the relevant apartment. The offence carries a maximum penalty of 25 years imprisonment. There is no appeal against sentence. 4The Crown case against the appellant consisted principally of evidence from a co-offender (Mr Puha) and the presence of the appellant's fingerprint and palm print on the inside of the front door to the apartment. The appellant did not give or call evidence on his behalf. 5There are two grounds of appeal that are inter-related. The second ground of the appeal maintains that there has been a miscarriage of justice occasioned by the closing address of the trial advocate, in that it was submitted that there was no innocent explanation for the presence of the fingerprint and palm print. This, it is said, constituted a contravention of the prohibition against any comment by the Crown to the effect that an accused failed to give evidence : s 20 Evidence Act 1995. 6The first ground of the appeal claims that the trial judge erred in purportedly repeating the Crown's submission to the jury that they might more readily accept the prosecution case in the absence of an explanation for the presence of the fingerprint and palm print. 7Both grounds call for a consideration of the case against the appellant and the context within which these remarks were made.