O’Sullivan v R [2021] NSWCCA 41

O’Sullivan v R [2021] NSWCCA 41

Leave under r 4 was refused because the trial judge's statement converted the prosecutor's silence into an asserted negative, but the error was minor and not material. The summing up was otherwise fair, balanced and impartial; the jury were repeatedly told that factual questions were for them; trial counsel did not raise the contrary point or object; and the error did not cause the applicant to lose a chance of acquittal reasonably open to him.

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Application for Leave to Appeal Against Conviction / Court of Criminal Appeal; Appeal From District Court Conviction on Count 4
Outcome
Leave to appeal refused under Criminal Appeal Rules (NSW), r 4; application for leave to appeal dismissed.
Legal Topics
['miscarriage of Justice' 'trial Judge Summing Up' 'misstatement of Prosecution Case' 'leave to Appeal' 'wounding With Intent to Cause Grievous Bodily Harm' 'criminal Appeal Rules (nsw), R 4']
['criminal Law' 'criminal Procedure' 'criminal Appeals'] ['miscarriage of Justice' 'trial Judge Summing Up' 'misstatement of Prosecution Case' 'leave to Appeal' 'wounding With Intent to Cause Grievous Bodily Harm' 'criminal Appeal Rules (nsw), R 4']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Conviction / Court of Criminal Appeal; Appeal From District Court Conviction on Count 4

Legal Issues

  1. 1 ['Whether the trial judge misstated the prosecution case in relation to count 4.' 'Whether any misstatement was significant in a material respect and caused a miscarriage of justice.' "Whether leave should be granted under Criminal Appeal Rules (NSW), r 4 where no objection was taken at trial to the judge's directions."]

Ratio Decidendi

Leave under r 4 was refused because the trial judge's statement converted the prosecutor's silence into an asserted negative, but the error was minor and not material. The summing up was otherwise fair, balanced and impartial; the jury were repeatedly told that factual questions were for them; trial counsel did not raise the contrary point or object; and the error did not cause the applicant to lose a chance of acquittal reasonably open to him.

Court Disposition

Leave to appeal refused under Criminal Appeal Rules (NSW), r 4; application for leave to appeal dismissed.

Orders

  • ['Refuse leave to appeal pursuant to Criminal Appeal Rules, r 4, with respect to the sole ground in the application for leave to appeal.' 'Dismiss the application for leave to appeal.']