R v Banic - [2004] NSWCCA 322

CITATION: R v BANIC [2004] NSWCCA 322

HEARING DATE(S): 20/09/04

JUDGMENT DATE:
23 September 2004

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Hoeben J at 33

DECISION: Appeal against conviction dismssed; Leave granted to appeal against sentence and appeal dismissed.

PARTIES :
Regina v Radovan BANIC

FILE NUMBER(S): CCA 2004/1809 CCA

COUNSEL: Appellant: J Conomos
Respondent: D Woodburne

SOLICITORS: Appellant: Tsambas & Co
Respondent: S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0744

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

- 11 -

2004/1809
(60290/04)

SPIGELMAN CJ
BARR J
HOEBEN J

23 September 2004

REGINA v Radovan BANIC

Judgment

1 SPIGELMAN CJ: I agree with Barr J.

2 BARR J: This is an appeal against a conviction entered up in the District Court and an application for leave to appeal against the resulting sentence. On 27 October 2003 the appellant stood trial before a jury on a charge of suppling the prohibited drug methylamphetamine and on a charge of supplying the prohibited drug 3, 4 methylenedioxymethylamphetamine. The latter drug is known as ecstasy. The jury found the appellant guilty on both counts. The trial judge, Nield DCJ, sentenced the appellant for each offence to imprisonment for four years with a non-parole period of three years.

3 At about 3:40am on Monday 3 March 2003 the appellant and two companions were in a certain nightclub in Darlinghurst. A security officer, having received a complaint from a patron of the business, stood and watched them for fifteen or twenty minutes. The appellant was standing near a pillar to which was affixed a shelf which could be used as a table. During the time they were under observation somewhere between five and ten persons went individually up to them, had a very short conversation, and then returned to other parts of the establishment. The security officer suspected that the three men were selling drugs and called the police. A number of police officers responded to the call. Two of them, Constable Ritson and Sergeant Burke, paid special attention to the appellant while their colleagues concerned themselves with his two companions.

4 When Constable Ritson saw the appellant he was leaning with his left leg straight and his right leg crooked, his right forearm flat on the surface of the table. His hands were clasped together, resting on the table in front of him. He was smoking a cigarette, which protruded from between the fingers of his left hand. As he smoked he lifted the cigarette to his mouth, using his left hand, and then returned the hand with the cigarette in it and cupped it over the surface of the cupped right hand. Constable Ritson could not see whether there was anything under the cupped hands. The appellant made to move and constable Ritson directed him to remain where he was and keep his hands where he, Constable Ritson, could see them. A few moments later the appellant moved his hands apart and lifted them off the…

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 R v Banic

Details

AGLC: R v Banic [2004] NSWCCA 322
Case: [2004] NSWCCA 322
Decision Date: 23 September 2004

CaseChat Overview and Summary

In the matter of Regina v Radovan Banic, the appellant stood trial in the District Court and was found guilty of supplying the prohibited drugs methylamphetamine and ecstasy. Banic subsequently appealed both his conviction and his sentence, arguing that he did not receive a fair trial due to the trial judge's summing up and that his sentence was excessive. The Court of Criminal Appeal reviewed the trial judge's directions to the jury and found that they did not deny the appellant a fair trial, as the judge had made it clear that it was the jury's responsibility to decide the facts. The court also dismissed the appeal against sentence, stating that the sentence was within the proper range of sentencing discretion.

The primary legal issue in this appeal was whether the trial judge's summing up denied the appellant a fair trial. The appellant argued that the trial judge had expressed an opinion on the evidence, which influenced the jury and prevented them from making an independent decision. The court found that the trial judge was entitled to express his view of the facts, provided that he made it clear that it was the jury's function to decide the facts and disregard the judge's opinion if it did not agree with their own assessment. The court also found that the trial judge's comments about the failure of defence counsel to challenge the police witnesses were a proper subject for comment, as there was no reason given for not doing so.

In conclusion, the Court of Criminal Appeal dismissed the appeal against the conviction and the application for leave to appeal against the sentence. The court found that the trial judge's summing up did not deny the appellant a fair trial and that the sentence was within the proper range of sentencing discretion. The appellant's conviction and sentence were therefore upheld.

Orders