Mesterovic v The Queen - [2016] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mesterovic v R [2016] NSWCCA 140
Hearing dates: 6 July 2016
Date of orders: 15 July 2016
Decision date: 15 July 2016
Before: Bathurst CJ at [1]; Ward JA at [1]; Payne JA at [1]
Decision:
Leave to appeal is refused under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on all grounds.

Catchwords: CRIMINAL LAW – appeal – conviction and sentence –applicant convicted of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the primary judge gave undue weight to the Crown case and failed properly to describe the applicant’s case in his summing up – whether evidence concerning the smell of cannabis plants should not have been admitted in circumstances where that evidence had not been foreshadowed prior to the trial – whether the applicant suffered a miscarriage of justice as a result of advice from his barrister that he not give evidence in his own defence – whether the primary judge erred in imposing a two-year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether to admit new evidence on the appeal
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
Criminal Appeal Act 1912 (NSW), s 5
Criminal Appeal Rules, r 4
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 43
Evidence Act 1995 (NSW), s 136
Cases Cited: R v Birks (1990) 19 NSWLR 677
Rasic v R [2009] NSWCCA 202
Category: Principal judgment
Parties: Applicant: Andrija Mesterovic
Respondent: Regina
Representation:
Counsel:
Applicant: Self represented
Respondent: N Noman SC
Solicitors:
Applicant: Self represented
Respondent: Solicitor for Public Prosecutions

File Number(s): 2014/6815
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

4 June 2015

Before:

Frearson SC DCJ

File Number(s):

2014/6815

Judgment

THE COURT: On 1 June 2015, the applicant Andrija Mesterovic was arraigned in the District Court on an indictment containing one count of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW).
On 4 June 2015, the applicant was found guilty after a three day trial. On the same day, Frearson SC DCJ recorded a conviction and imposed a two year good behaviour bond, with no conditions, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Relevant facts

On 8 January 2014, officers of the NSW police performed surveillance at an address in Kingsford. At about 3 pm on that day the applicant and Mr Milan Belopoljac approached the front of…

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 Mesterovic v The Queen

Details

AGLC: Mesterovic v The Queen [2016] NSWCCA 140
Case: [2016] NSWCCA 140
Decision Date: 15 July 2016

CaseChat Overview and Summary

In the case of Mesterovic v The Queen, the applicant, Mesterovic, appealed against his conviction and sentence for knowingly participating in the cultivation of cannabis plants by enhanced indoor means for commercial purposes. The case was heard in the New South Wales Court of Criminal Appeal. The central issues in the appeal were whether the primary judge had given undue weight to the Crown's case and inadequately described the applicant's case during the summing up, whether evidence about the smell of cannabis plants should have been excluded due to its lack of prior disclosure, whether the applicant's decision not to testify was influenced by incorrect advice from his barrister, whether the imposition of a two-year good behaviour bond was appropriate, and whether new evidence should be considered on appeal.

The court considered the arguments regarding the primary judge's summing up and concluded that there was no error in the summing up process. The court found that the evidence concerning the smell of cannabis plants, which was not foreshadowed before the trial, was admissible as it did not prejudice the applicant's defence. The court also determined that the applicant's decision not to give evidence was made with proper legal advice and did not constitute a miscarriage of justice. Regarding the sentencing, the court held that the two-year good behaviour bond was a suitable sentence under the relevant statutory provisions. The court rejected the application to admit new evidence on the appeal.

The appeal was ultimately dismissed. The court confirmed the conviction and sentence, finding no basis for the relief sought by the applicant. The court's decision underscored the importance of proper legal advice and the court's discretion in assessing evidence and sentencing. The applicant's conviction and sentence remained unchanged.

Orders