Regina v Turk - [2001] NSWCCA 547

CITATION: REGINA v TURK [2001] NSWCCA 547

FILE NUMBER(S): CCA 60684/00

HEARING DATE(S): 10 August 2001

JUDGMENT DATE:
10 August 2001

PARTIES :

Regina
Andrew Mark Turk

JUDGMENT OF: Spigelman CJ at 1, 23; Grove J at 2; Einfeld AJ at 3

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70006/00

LOWER COURT JUDICIAL
OFFICER : Bell J

COUNSEL : C B Craigie (Appellant)
R A Hulme (Crown)

SOLICITORS: D J Humphreys (Appellant)
S E O'Connor (Crown)

CATCHWORDS: CRIMINAL LAW - murder - appeal against conviction - whether direction on provocation required - where no evidence of loss of self-control - whether summing up incomplete because particular evidence not referred to.

LEGISLATION CITED: Crimes Act

CASES CITED:
Mancini v Director of Public Prosecutions [1942] AC 1
Moffa v The Queen (1976-1977) 138 CLR 601
R v Hall [2001] NSWCCA 202

DECISION: Appeal dismissed.

60684/00

SPIGELMAN CJ
GROVE J
EINFELD AJ
Friday 10 August 2001

REGINA v ANDREW MARK TURK

Judgment

1 SPIGELMAN CJ: I agree with Einfeld AJ.

2 GROVE J: I also agree.

3 EINFELD AJ: The Appellant appeals against his conviction for murder said to have been committed on 11 March 1999 in Nyngan.

4 The victim was Kevin William Forester. The conviction took place at the hands of a jury on 11 October 2000 after a trial before her Honour Justice Bell, and a jury at Dubbo which commenced a week earlier.

5 On 13 October her Honour sentenced the Appellant to eighteen years imprisonment to commence on the day after the crime. She specified a non-parole period of fourteen years and fixed the first date for eligibility for release on parole as 11 March 2013.

6 The date 11 March for the offence is of some significance. In an incident on 12 February, just one month earlier, the Appellant was apparently dragged out of a car by the deceased and assaulted in a relatively minor but humiliating way.

7 On 6 March, just five days before the crime, the Appellant was noted as requesting information about the whereabouts of the deceased, but although a place where he might be found was identified, nothing happened.

8 Earlier, on the evening of 11 March, the deceased was at the home of the Appellant’s then female companion. The police watched the deceased thereafter and regarded him as potentially violent but did not apprehend him.

9 The deceased then went to the home of a Mr and Mrs Rogers in Cannonbar Street, Nyngan. The deceased arrived and shortly after assaulted the Appellant causing his nose to bleed and him to stagger and fall. The deceased went to the kitchen to seek a knife and returned to stand over the Appellant on the floor, threatening him with a knife. Mrs Rogers yelled at the two men to leave. Her evidence was that the deceased was the aggressor in the encounter and had not been provoked by the Appellant in any way. The Appellant was later heard on the same…

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 Regina v Turk

Details

AGLC: Regina v Turk [2001] NSWCCA 547
Case: [2001] NSWCCA 547
Decision Date: 10 August 2001

CaseChat Overview and Summary

The case of Regina v Turk was heard in the court, which examined an appeal against a conviction for murder. The defendant, Turk, sought to overturn his conviction on the basis of alleged errors in the trial judge's directions to the jury regarding provocation and the completeness of the summing up. The prosecution argued that Turk had unlawfully killed the victim, and Turk maintained his innocence, claiming self-defence.

The central legal issues in the appeal were whether the trial judge should have directed the jury on the possibility of provocation when there was no evidence of a loss of self-control, and whether the summing up was incomplete due to the omission of specific evidence. The defence contended that the absence of a direction on provocation was critical, as it potentially misled the jury about the availability of this defence. Additionally, Turk argued that the summing up was flawed because it failed to address particular evidence that the defence believed could have supported a verdict of not guilty.

The court examined whether the trial judge's failure to direct the jury on provocation, in the absence of any evidence suggesting a loss of self-control, constituted a significant error. The court found that as there was no basis in the evidence for a provocation direction, the trial judge's omission was not an error of law. Regarding the summing up, the court assessed whether the omission of certain evidence from the summing up was material. It concluded that the evidence in question did not affect the jury's ability to reach a verdict, and thus, the summing up was not incomplete. The appeal was dismissed as the errors alleged did not impact the fairness or outcome of the trial.

No further orders were made by the court as the appeal was dismissed. The conviction for murder was upheld, and Turk's sentence remained unaltered.

Orders