Bingul v Regina - [2009] NSWCCA 239

New South Wales
Court of Criminal Appeal

CITATION: Bingul v Regina [2009] NSWCCA 239

HEARING DATE(S): 10 June 2009

JUDGMENT DATE:
18 September 2009

JUDGMENT OF: Allsop P at 1; Price J at 80; Harrison J at 81

DECISION: 1. Appeal against conviction dismissed.
2. Leave to appeal against sentence granted.
3. Appeal against sentence dismissed.

CATCHWORDS: EVIDENCE - admissibility and relevancy – tendency evidence – global objection to tendency evidence on basis of prejudice– no requirement that trial judge examine each piece of evidence individually when counsel did not deal with the objection in that fashion - EVIDENCE - admissibility and relevancy – tendency evidence – jury directions – adequacy of directions of what use could be made of tendency evidence – adequacy of directions in relation to other criminal activity and bad character - CRIMINAL LAW – appeal against sentencing – factors against leniency - Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A – effect of offences committed after offence under sentencing – drug offences - totals accumulated to get to commercial quantity from separate supplies – whether sentence manifestly excessive – leave to appeal granted – appeal dismissed - Crime (Sentencing Procedure) Act 1999 (NSW) – s 21A - Evidence Act 1995 (NSW) – s 97 – s 101

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CATEGORY: Principal judgment

CASES CITED: B v The Queen [1992] HCA 68; 175 CLR 599
BRS v The Queen [1977] HCA 47; 191 CLR 275
Bull v The Queen [2000] HCA 24; 201 CLR 443
Donnini v The Queen [1972] HCA 71; 128 CLR 114
Hutton v R [2008] NSWCCA 99
R v AMT [2005] NSWCCA 151
R v Boney (unreported 22 July 1991 NSW Court of Criminal Appeal)
R v Chin [2003] NSWCCA 267
R v Hamzy (1994) 74 A Crim R 341
R v Hutchins (1958) 75 WN (NSW) 75
R v Kennedy (unreported 29 May 1990 NSW Court of Criminal Appeal)
R v MAK and MSK [2006] NSWCA 381; 167 A Crim R 159
R v RN [2005] NSWCCA 413

PARTIES: Haci Ali Bingul
The Crown

FILE NUMBER(S): CCA 13527/2007

COUNSEL: C T Loukas (Appellant)
N Noman (Respondent)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/00978

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 20 March 2008

13527/2007

ALLSOP P
PRICE J
HARRISON J
Friday 18 September 2009

HACI ALI BINGUL v R

Headnote

The appellant was indicted and faced trial before a jury on 11 counts, 10 of which concerned the supply of drugs. The events giving rise to the charges spanned the period between 13 March 2006 and 19 May 2006.

At the trial the Crown gave notice under s 101 of the Evidence Act 1995 (NSW) in order to lead, as tendency evidence, a series of taped conversations of the appellant which occurred on dates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bingul v Regina

Details

AGLC: Bingul v Regina [2009] NSWCCA 239
Case: [2009] NSWCCA 239
Decision Date: 18 September 2009

CaseChat Overview and Summary

The matter of Bingul v Regina was heard in the Court of Appeal in New South Wales. The case involved an appeal by the defendant, Mr Bingul, against both his conviction and sentence. The primary issue before the court was the admissibility of certain tendency evidence and the adequacy of jury directions concerning the use of such evidence, as well as the appropriateness of the sentence imposed.

The legal issues the court needed to address were the admissibility of tendency evidence in criminal trials and the appropriate standards for jury directions regarding its use. Specifically, the court had to consider whether the trial judge should have examined each piece of evidence individually in light of a global objection to the evidence's admission. Additionally, the court examined whether the jury directions adequately explained the permissible uses of tendency evidence and whether they sufficiently addressed concerns about other criminal activity and bad character evidence.

The court held that it was not necessary for the trial judge to individually examine each piece of evidence when the objection to the evidence's admissibility was raised in a global manner. The court also determined that the jury directions were sufficient, as they provided a clear understanding of how the tendency evidence could be used and included appropriate warnings about the risks of considering other criminal activity and bad character. Regarding the sentence, the court concluded that while the cumulative quantity of drugs indicated a serious offence, the sentence imposed was not manifestly excessive. Therefore, the appeal was dismissed.

In light of the court's findings, the final orders confirmed the conviction and sentence as determined by the trial court, with the court of appeal finding no basis to alter either. The appeal was dismissed, and the original sentence remained in place.

Orders