R v Demiroz - [2003] NSWCCA 146

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Demiroz [2003] NSWCCA 146 revised - 02/09/2008

FILE NUMBER(S):
60406/02

HEARING DATE(S): 26 May 2003

JUDGMENT DATE: 26/05/2003

PARTIES:
Regina v Muammer (aka Paul) Demiroz

JUDGMENT OF: Sheller JA Hidden J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/0306

LOWER COURT JUDICIAL OFFICER: His Honour Judge Viney QC

COUNSEL:
Appellant - A. Francis
Crown - M. Grogan

SOLICITORS:
Appellant - Heenan & Company
Crown - S.E. O'Connor

CATCHWORDS:
Criminal law
evidence
identification of accused in issue
whether judge erred in not giving directions and warning on identification evidence
mandatory requirements of s 116 of the Evidence Act considered

LEGISLATION CITED:
Crimes Act 1900, ss112(2); 154A(1)(b)
Criminal Appeal Act 1912 s6(1)
Evidence Act, ss 128; 165(1)(b); 165(2)

DECISION:
Appeal allowed, convictions quashed, new trial ordered on all counts.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60406/02
SHELLER AJ
HIDDEN J
CARRUTHERS AJ
Monday, 26 May 2003

REGINA v Muammer (aka Paul) DEMIROZ

Judgment

CARRUTHERS AJ: Muammer Demiroz (also known as Paul Demiroz and to whom I shall refer as the appellant) appeals against his convictions at the Penrith District Court on 7 June 2002 upon two counts of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900 (hereinafter the Act) and one count of drive vehicle taken without consent of owner under s 154A(1)(b) of the Act.
On 3 June 2002 the appellant was arraigned at the Penrith District Court before his Honour Judge Viney QC and a jury of twelve upon an indictment containing three counts in the following terms:
“1)That he on or about 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely that he knew that persons were present in the dwelling house at the time, did break and enter the dwelling house of Joseph Lee situated at 34 Dudley Street and while in the said dwelling did steal certain property, namely a black handbag containing credit cards, cheque books and other personal items; a set of keys and a 68 centimetre Sony television, the property of Joseph and Cam Lee.
2)That he on 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely, that he knew that a person was present in the dwelling house at the time did break and enter the dwelling house of Joseph Villegas situated at 294 Vaughan Street and while in the said dwelling did steal certain property, namely a Tanada brand acoustic guitar, a Sony DVD player, a Hanimex tripod; a Canon video recorder and a polaroid Joy Cam in a carry case the property of Joseph Villegas.
3)That he on or about 10 May 2001 at Lidcombe in the State of New South Wales did drive a conveyance, namely a Toyota Tarago registration number AEI 85S knowing that the said conveyance had been taken without the consent of the owner.”
On 7 June 2002 his…

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 Demiroz

Details

AGLC: R v Demiroz [2003] NSWCCA 146
Case: [2003] NSWCCA 146
Decision Date: 26 May 2003

CaseChat Overview and Summary

In the case of R v Demiroz, the defendant was charged with various criminal offences following an incident that occurred in Melbourne. The primary dispute in the case was whether the trial judge had correctly handled the identification evidence provided against the defendant, specifically whether the judge had erred in not providing adequate directions and warnings regarding the reliability of the identification evidence. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the trial judge had erred in the way they handled the identification evidence provided against the defendant and whether the mandatory requirements of section 116 of the Evidence Act 2008 (Vic) were adequately fulfilled. The court had to consider whether the judge's failure to provide specific directions and warnings about the identification evidence was a significant error that affected the fairness of the trial and the reliability of the verdict.

The court found that the trial judge had not adequately fulfilled the mandatory requirements of section 116 of the Evidence Act. This section requires the trial judge to give directions and warnings about the potential unreliability of identification evidence, particularly when the identification is based on a witness's observation under poor conditions or when the witness had limited opportunity to observe the accused. The court held that the trial judge's failure to provide such directions and warnings constituted a significant error, which potentially undermined the reliability of the identification evidence and affected the fairness of the trial. Consequently, the court allowed the appeal, quashed the conviction, and ordered a retrial.

Orders