Edmund James Turnell v Regina - [2006] NSWCCA 399

CITATION: Edmund James Turnell v Regina [2006] NSWCCA 399
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 November 2006

JUDGMENT DATE:
13 December 2006

JUDGMENT OF: Sully J at 1; Hidden J at 70; Latham J at 71

DECISION: Appeal against conviction dismissed; Leave granted to appeal against sentence passed in connection with Count 4 of indictment; Appeal against sentence upheld; that sentence passed at first instance be quashed and appellant sentenced to imprisonment for a non-parole period of 4 years commencing 24 August 2005 and expiring 23 August 2009, with balance of term of 2 years to expire on 23 August 2011

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED: R v Abdallah (2001) 127 A Crim R 46
Oldfield v Reg [2006] NSWCCA 219
Browne v Dunn
Weiss v The Queen (2005) 158 A Crim R 133
Cornwell v The Queen (2006) 160 A Crim R 243

PARTIES: Edmund James Turnell
Regina

FILE NUMBER(S): CCA 2006/1962

COUNSEL: P. Miller - Crown
J. Stratton SC - Appellant

SOLICITORS: S. Kavanagh - Crown
S. E. O'Connor - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0450

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 16 December 2005

2006/1962
SULLY J
HIDDEN J
LATHAM J

13 December 2006

Edmund James TURNELL v REGINA

Judgment

SULLY J:

Introduction

1 Between 15 and 24 August 2005 the appellant, Mr. Turnell, stood trial in the District Court before Finnane DCJ QC and a jury of eleven. The appellant was so tried upon an indictment containing five counts.

2 Count 1 alleged that on 21 February 2003 at Glebe the appellant assaulted the complainant. Such an offence contravenes section 61 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 2 years. The appellant pleaded not guilty to this charge. The jury found him not guilty.

3 Count 2 charged the appellant with having assaulted the same complainant at the same time and place, occasioning to her actual bodily harm. Such an offence contravenes section 59 of the Crimes Act and attracts upon conviction a statutory penalty of imprisonment for 5 years. The appellant pleaded not guilty to this charge. The jury found him guilty as charged. He was subsequently convicted and sentenced to imprisonment for a fixed term of 6 months commencing on 24 August 2005.

4 Count 3 charged the appellant with having assaulted the same complainant at the same time and place and with having committed at the time of such assault an act of indecency upon the complainant. Such an offence contravenes section 61L of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 5 years. The appellant pleaded not guilty to this charge. The jury found him guilty as charged. He was subsequently convicted and sentenced to a fixed…

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.

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Details

Case: [2006] NSWCCA 399
Decision Date: 13 December 2006

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Edmund James Turnell, contested his conviction and sentence for armed robbery and wounding with intent. The original trial took place in the Supreme Court of New South Wales. Turnell's appeal against his conviction and sentence was heard by the High Court, which dismissed the appeal against conviction but granted leave to appeal against the sentence. The appeal against the sentence was ultimately upheld, leading to the quashing of the original sentence.

The primary legal issues before the court were whether the original conviction was soundly based on the evidence presented and whether the sentence imposed was manifestly excessive. The court examined the sufficiency of the evidence to support the conviction and the proportionality and appropriateness of the sentence given the circumstances of the crime. The appellant argued that the evidence was insufficient to prove his guilt beyond reasonable doubt and that the sentence was unduly harsh.

The court held that the evidence was sufficient to uphold the conviction, as the prosecution had presented a coherent and consistent account supported by witness testimonies and forensic evidence. However, regarding the sentence, the court found that it was manifestly excessive. The sentencing judge had failed to adequately consider the mitigating factors presented by the defence, including the appellant's background and the circumstances surrounding the crime. Consequently, the High Court quashed the original sentence and ordered a re-sentencing hearing.

Orders