Huseyin Kuvanci v Shane Scott - [2004] ACTSC 16

HUSEYIN KUVANCI v SHANE SCOTT
[2004] ACTSC 16 (7 April 2004)

APPEAL – conviction by Magistrate – recklessly inflict grievous bodily harm.
EVIDENCE – hearsay – admissibility under Evidence Act 1995 (Cth) – out of court representation to police officer – evidence admissible – Evidence Act, s 66(2).

Evidence Act 1995 (Cth), s 59, s 66

Crimes Act 1900, s 20

R v Tillott (1995) 38 NSWLR 1

R v Esposito (1998) 45 NSWLR 442

Turrise v R [2003] ACTCA 23

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 75 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 7 April 2004

IN THE SUPREME COURT OF THE  )
  )  No SCA 75 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:HUSEYIN KUVANCI
Appellant

AND:SHANE SCOTT
Respondent

ORDER

Judge:  Connolly J
Date:  7 April 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against conviction and sentence be dismissed and the Magistrate’s orders be confirmed.

This is an appeal against conviction and sentence from a decision by Magistrate Campbell on 10 November 2003 to convict the appellant, Huseyin Kuvanci, of one count of recklessly inflict grievous bodily harm, and to sentence him to 18 months imprisonment with a non-parole period of 12 months.

The appellant was charged that in the early hours of the morning of Sunday, 3 November 2002 he recklessly inflicted grievous bodily harm on Kidane Belay, a taxi driver, outside the premises situated at 57 Franklin Street, Manuka. The prosecution case was that the appellant and a friend, Mr Paul Fiorenza (the co-accused), travelled in Mr Belay’s taxi from a Civic nightclub to the premises at 57 Franklin Street, Manuka where they were staying, and that an argument developed between the taxi driver and the appellant over whether or not the appellant and his friend had spat in the taxi. The prosecution case was that the appellant then struck Mr Belay who fell to the ground and sustained a serious head injury.

The incident occurred shortly after Canberra Cabs had installed photographic devices in taxis. Some days after the attack The Canberra Times published photographs of the two passengers who were last in the taxi before Mr Belay was found lying in the street. The appellant says that his employer called him into the site office the following Wednesday and showed him the photograph in the newspaper, identifying him and his friend, and that as a consequence he and his friend went to the police to clear their names. He acknowledged that he was a passenger in the taxi, but denied any wrongdoing. He said that they travelled from Civic to Manuka, then paid the fare and departed.

There are four grounds of appeal -

(i)The simultaneous conduct of administrative and judicial proceedings resulted in a miscarriage of justice.
(ii)The evidence did not support a finding of guilt beyond reasonable doubt.
(iii)Her Worship erred in admitting evidence of a hearsay representation.
(iv)The sentence imposed was manifestly excessive.

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: [2004] ACTSC 16
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Justice Connolly dismissed an appeal by Huseyin Kuvanci against his conviction and sentence for recklessly inflicting grievous bodily harm on Kidane Belay, a taxi driver. The appeal was based on four grounds: the simultaneous conduct of administrative and judicial proceedings, the sufficiency of the evidence, the admissibility of a hearsay statement, and the severity of the sentence. The court found that the magistrate correctly excluded recovered memory evidence and properly admitted the hearsay statement. The magistrate's reasoning in finding the appellant guilty beyond reasonable doubt was sound, and the sentence imposed was not manifestly excessive given the seriousness of the offence and the appellant's criminal history. The appeal was dismissed, and the magistrate's orders were confirmed.

Orders