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Obierzynski v The Queen

Obierzynski v The Queen

Case [2019] NSWCCA 103 7 June 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Obierzynski v R [2019] NSWCCA 103
Hearing dates: 6 May 2019
Date of orders: 07 June 2019
Decision date: 07 June 2019
Before: Macfarlan JA at [1]
Harrison J at [2]
Hamill J at [2]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – conviction appeal – where applicant convicted of having taken and driven a motor vehicle without the consent of the owner in circumstances of aggravation – whether trial judge erred in circumstantial evidence direction to the jury – whether trial judge erroneously minimised the lack of identification of the applicant as the important issue in the applicant’s response to the Crown case – whether trial judge should have excluded parts of the ERISP in which the police purported to identify the applicant in CCTV footage – whether verdict is unreasonable – appeal dismissed
CRIME – sentence appeal – where applicant sentenced to imprisonment of 7 years with non-parole period of 5 years – whether sentence manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 154C
Cases Cited: Atai v R [2014] NSWCCA 210
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Mundarra Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
South v R [2007] NSWCCA 117
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category: Principal judgment
Parties: Zachary Obierzynski (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/273391
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 June 2017

Before:

King DCJ

Judgment

MACFARLAN JA: Having conducted an independent assessment of the nature and quality of the evidence at the trial and on sentence, I am of the opinion that the orders proposed by Harrison and Hamill JJ should be made, for the reasons that their Honours give.
HARRISON & HAMILL JJ: The applicant was tried before King DCJ and a jury in the District Court of New South Wales with his co-accused Mikolaj Nowak commencing on 14 March 2017. They were charged…

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 Obierzynski v The Queen

Details

AGLC: Obierzynski v The Queen [2019] NSWCCA 103
Case: [2019] NSWCCA 103
Decision Date: 07 June 2019

CaseChat Overview and Summary

The appeal was against a conviction and sentence for taking and driving a motor vehicle without the owner's consent, in circumstances of aggravation. The applicant, the appellant, was convicted of the offence and sentenced to imprisonment of seven years, with a non-parole period of five years. The appeal against conviction challenged the sufficiency of the evidence and the adequacy of the directions to the jury. The appeal against sentence challenged the length of the sentence imposed.

The issues before the court were whether the trial judge erred in the circumstantial evidence direction to the jury, whether the trial judge erroneously minimised the lack of identification of the applicant as the important issue in the applicant’s response to the Crown case, and whether the trial judge should have excluded parts of the evidence in which the police purported to identify the applicant in CCTV footage. The court also considered whether the verdict was unreasonable and whether the sentence was manifestly excessive.

The court found that there was no error in the trial judge's direction to the jury, and that the jury was adequately directed on the principles of circumstantial evidence. The court found that the trial judge did not minimise the lack of identification of the applicant as the important issue in the applicant’s response to the Crown case, and that the trial judge was correct to admit the evidence of identification. The court found that the verdict was not unreasonable, and that the sentence was not manifestly excessive. The appeal against conviction and sentence was dismissed.

No orders were made in relation to the appeal.

Orders