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Doklu v The Queen

Doklu v The Queen

Case [2010] NSWCCA 309 16 December 2010

Appeal

Admissibility of Evidence

Jury Act

Majority Verdict

Criminal Law

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Reported Decision: 208 A Crim R 333

New South Wales

Court of Criminal Appeal

CITATION: Doklu v R [2010] NSWCCA 309

HEARING DATE(S): 2 September 2010

JUDGMENT DATE:
16 December 2010

JUDGMENT OF: Macfarlan JA at 1; Simpson J at 83; Hall J at 89

DECISION: (1) Grant leave under rule 4 Criminal Appeal Rules to rely upon Ground 4 in the Notice of Appeal; and
(2) Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - conviction appeal - whether evidence of admissions by appellant that he attempted to kill his wife wrongly admitted - Criminal Procedure Act s 281 - whether at the time when an admission was made the appellant was or could reasonably have been suspected by police officers of having committed an offence - whether reasonable excuse that tape recording not made - Evidence Act s 85 - whether admission made in circumstances where truth of admission unlikely to be adversely affected - Evidence Act s 90 - whether trial judge exercised discretion wrongly by admitting evidence - whether any relevant unfairness - relevance of appellant's physical condition - whether appellant capable of understanding questioning - CRIMINAL LAW - conviction appeal - Jury Act - majority verdict - whether trial judge's direction that majority verdict possible in some circumstances undermined effect of Black v R direction concerning need for jury to try its utmost to reach unanimous verdict - advisability of mentioning possibility of majority verdict before necessary to do so

LEGISLATION CITED: Bankruptcy Act 1924 (Cth)
Crimes Act 1900
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Jury Act 1977

CATEGORY: Principal judgment

CASES CITED: Black v R [1993] HCA 71; (1993) 179 CLR 44
Em v R [2007] HCA 46; (2007) 232 CLR 67
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Hanna v R [2008] NSWCCA 173; (2008) 73 NSWLR 390
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1965 – 1966) 115 CLR 266
R v Keenan Mundine [2008] NSWCCA 55
R v Moussa [2001] NSWCCA 427; (2001) 125 A Crim R 505
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
RJS v Regina [2007] NSWCCA 241; (2007) 173 A Crim R 100

TEXTS CITED: Criminal Trials Courts Bench Book, Judicial Commission of New South Wales

PARTIES: Mehmet Doklu (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/8731

COUNSEL:
P David (Appellant)
J A Girdham (Respondent)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/8731

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 23 September 2009

2007/8731005

MACFARLAN JA
SIMPSON J
HALL J
16 DECEMBER 2010

Mehmet DOKLU v R

Judgment

1 MACFARLAN JA: At the conclusion of a trial in September 2008 a jury, by a majority verdict, found the appellant guilty of attempting on 26 August 2006 “to administer a poison namely, Chlorpyrifos, to Semra Doklu [his wife] with intent to murder the said…

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 Doklu v The Queen

Details

AGLC: Doklu v The Queen [2010] NSWCCA 309
Case: [2010] NSWCCA 309
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Doklu v The Queen involved an appeal against a conviction by the appellant, Doklu, who was convicted of an attempted murder. The primary issue before the court was whether the evidence of admissions made by Doklu to police officers should have been admitted. Specifically, the court needed to determine if the admissions were made at a time when Doklu could reasonably have been suspected of having committed an offence, as required by the Criminal Procedure Act s 281. The court also considered whether there was a reasonable excuse for the police officers not recording the admissions, under Evidence Act s 85, and whether the admissions were made in circumstances where the truth of the admission was unlikely to be adversely affected, under Evidence Act s 90. The court examined whether the trial judge exercised his discretion wrongly by admitting the evidence, and whether any unfairness resulted from this decision.

The court held that the trial judge did not exercise his discretion wrongly in admitting the evidence of the admissions. The court found that at the time of the admissions, Doklu could reasonably have been suspected of having committed an offence, and that there was a reasonable excuse for not recording the admissions. Furthermore, the court determined that the admissions were made in circumstances where the truth of the admission was unlikely to be adversely affected. The court also concluded that there was no unfairness in the admission of the evidence, considering Doklu's physical condition and his capability to understand the questioning. In addition, the court found that the trial judge's direction that a majority verdict was possible in some circumstances did not undermine the effect of the direction concerning the need for a jury to try its utmost to reach a unanimous verdict. The court also noted that the advisability of mentioning the possibility of a majority verdict before it was necessary to do so did not impact the trial's fairness.

Orders