Can, Vural v The Queen - [2007] NSWCCA 346

New South Wales
Court of Criminal Appeal

CITATION: CAN, Vural v R [2007] NSWCCA 346

HEARING DATE(S): 27 November 2007

JUDGMENT DATE:
14 December 2007

JUDGMENT OF: Giles JA at 1; Grove J at 2; Harrison J at 3

DECISION: The application for extension of time to appeal is refused.

CATCHWORDS: CRIMINAL LAW – conviction appeal – Crown's obligation to call witnesses – allegation of miscarriage of justice – obligation does not extend to investigation of every potential witness or theory raised by defence – no miscarriage of justice – EVIDENCE – evidence of consciousness of guilt – whether properly admitted by trial judge – no error found – APPLICATION FOR EXTENSION OF TIME TO APPEAL – inadequate material to support application – application refused

LEGISLATION CITED: Customs Act 1901
Evidence Act 1995

CASES CITED: Chahine v R [2006] NSWCCA 179
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558
R v Clough (1992) 28 NSWLR 396
R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450

PARTIES: Vural Can (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3253 (formerly 2007/1407)

COUNSEL: In person (Appellant)
D G Staehli SC (Respondent)

SOLICITORS: In person (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0289

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 13 May 2004

2007/3253 (formerly 2007/1407)

GILES JA
GROVE J
HARRISON J
14 December 2007

CAN, Vural v R

Judgment

1 GILES JA: I agree with Harrison J save that I did not have the initial attraction in [54].

2 GROVE J: I agree with Harrison J.

3 HARRISON J: The appellant was found guilty by a jury on 13 May 2004 on a charge that he imported into Australia a prohibited import consisting of a quantity of cocaine not less than the trafficable quantity applicable to cocaine contrary to s 233B(1)(b) of the Customs Act 1901. The appellant has appealed against that conviction and applies in advance of his appeal for an extension of time within which to do so.

Background

4 On Friday 27 December 2002 the appellant arrived at Sydney airport on Emirates flight EK 410 from Dubai. He passed through the immigration primary line and collected his baggage. He was subsequently escorted to a baggage examination area for the purpose of conducting a baggage search. The appellant was asked some questions about his luggage and the answers given by him to questions on the Incoming Passenger Card (“the IPC"). The appellant admitted completing the IPC and said that he was fully aware of the contents of his luggage. The appellant gave an address in Bondi on the IPC as his residential address in Australia.

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 Can, Vural v The Queen

Details

AGLC: Can, Vural v The Queen [2007] NSWCCA 346
Case: [2007] NSWCCA 346
Decision Date: 14 December 2007

CaseChat Overview and Summary

The appellant, Can Vural, appealed his conviction for drug trafficking offences, arguing a miscarriage of justice due to the Crown's failure to call certain witnesses and investigate potential defence theories. The case was heard in the High Court of Australia. The appellant contended that the Crown's obligation to call witnesses extends to investigating every potential witness and theory raised by the defence. Additionally, he argued that the trial judge erred in admitting evidence of consciousness of guilt.

The High Court addressed the scope of the Crown's obligation to call witnesses and investigate potential evidence. The court held that the obligation does not require the Crown to investigate every potential witness or theory raised by the defence. The court found no miscarriage of justice in this regard. Regarding the evidence of consciousness of guilt, the court found that the trial judge did not err in admitting it. The evidence was relevant and properly weighed by the trial judge. The High Court thus dismissed the appeal. The court also considered an application for an extension of time to appeal, which was refused due to inadequate material supporting the application.

Orders