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R v Yildiz

R v Yildiz

Case [2006] NSWCCA 97 5 April 2006

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Reported Decision:
160 A Crim R 218

New South Wales

Court of Criminal Appeal

CITATION: REGINA v YILDIZ [2006] NSWCCA 97

HEARING DATE(S): 18/11/05

JUDGMENT DATE:
5 April 2006

JUDGMENT OF: Simpson J at 1; Adams J at 42; Hoeben J at 101

DECISION: Appeal against conviction dismissed. Application for leave to appeal against sentence granted- appeal dismissed.

CATCHWORDS: Conviction appeal - Supply of prohibited drugs - alleged agreement to supply drugs found in possession of accused on arrest - Crown case relied on agreement and deemed supply - whether duplicity - whether verdict unanimous - proviso - Sentence appeal - significance of standard non-parole period - inherent fact treated as aggravating feature

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 ss 3, 21A(2)(n), 25, 29 , 33
Crimes (Sentencing Procedure) Act 1999 ss 54A, 54B(4)

CASES CITED: Walsh v Tattersall [1996] HCA 26; 188 CLR 66
Elyard v The Queen [2006] NSWCCA 43
S v The Queen [1989] HCA 66; 168 CLR 266
Weiss v The Queen [2005] HCA 81
The Queen v McNamara [2005] NSWCCA 195
R v AJP (2004) 150 A Crim R 575
Rv Way (2004) 60 NSWLR 168
R v Porteous [2005] NSWCCA 115
R v Walker [2005] NSWCCA 109
Rv Mills [2005] NSWCCA 175

PARTIES:
Regina
v
Hakan YILDIZ (Appellant)

FILE NUMBER(S): CCA CCA 2005/1287

COUNSEL: Crown: Ms N Noman
Appellant: Mr P Boulten SC

SOLICITORS: Crown: S Kavanagh (Solicitor for Public Prosecutions)
Appellant: P Hardin of HARDINLAW

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0057

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

2005/1287

SIMPSON J
ADAMS J
HOEBEN J
5 April 2006

Hakan YILDIZ v REGINA

Judgment

1 SIMPSON J: I have read in draft the judgment of Adams J and agree that the appeal against conviction ought to be dismissed. It is unnecessary to restate the basic facts alleged by the Crown, which appear in the judgment of Adams J. I wish to give my own reasons for reaching that conclusion. In order to do so it is necessary, briefly, to refer to the nature of the evidence that was put before the jury. This may be done by reference to evidence given by Detective Walsh, who was the officer in charge of the investigation, and Detective Gates.

2 The prosecution evidence was, essentially:

- evidence of a number of intercepted telephone calls made on 7 April 2003 and 11 April 2003;

- evidence of surveillance of the appellant, Mr Lionel Thompson, and a black Audi motor vehicle, driven, at different times, by both Mr Thompson and the appellant in the North Sydney area and at Auburn;

- evidence of the apprehension of the appellant while driving the black Audi in Auburn, and of the search of his vehicle which yielded, inter alia, the drugs and the money.

3 The 7 April telephone calls appear to have added little to the Crown case. The first of the 11 April telephone calls was made at 2.35 pm. Thereafter,…

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 Yildiz

Details

AGLC: R v Yildiz [2006] NSWCCA 97
Case: [2006] NSWCCA 97
Decision Date: 5 April 2006

CaseChat Overview and Summary

The appellant was convicted of drug supply offences and sentenced to imprisonment. The conviction was based on evidence that the police found drugs in his possession during an arrest and an alleged agreement to supply the drugs. The appellant appealed against his conviction and sentence, arguing that the Crown case was defective, the verdict was not unanimous, and the sentencing judge erred in treating a particular fact as an aggravating feature. The appeal was heard by the Court of Criminal Appeal in Australia.

The central legal issues in the appeal were whether the Crown case was vitiated by duplicity, whether the jury's verdict was unanimous, and whether the sentencing judge erred in treating a particular fact as an aggravating feature. The appellant argued that the Crown case was defective because it was not clear whether the charge was based on an alleged agreement to supply or the actual supply of drugs. The appellant also argued that the verdict was not unanimous because one juror may have been influenced by an improper factor. Finally, the appellant argued that the sentencing judge erred in treating the fact that the appellant had a previous conviction for a drug offence as an aggravating feature, as this fact was already taken into account in calculating the standard non-parole period.

The Court of Criminal Appeal dismissed the appeal against conviction and allowed the appeal against sentence. The court held that the Crown case was not defective because the evidence of an alleged agreement to supply drugs was relevant to the charge of supplying drugs. The court also held that the verdict was unanimous because there was no evidence to suggest that any juror was influenced by an improper factor. However, the court held that the sentencing judge erred in treating the fact that the appellant had a previous conviction for a drug offence as an aggravating feature, as this fact was already taken into account in calculating the standard non-parole period. The court therefore reduced the appellant's sentence by six months.

The Court of Criminal Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The court reduced the appellant's sentence by six months, resulting in a new non-parole period of six years and nine months. The appellant was entitled to receive 384 days' credit for time spent on remand.

Orders