Tuncbilek v The Queen - [2012] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tuncbilek v R [2012] NSWCCA 224
Hearing dates: 12/09/2012
Decision date: 24 October 2012
Jurisdiction: Criminal
Before: McClellan CJ at CL at [1]
Johnson J at [2]
Garling J at [3]
Decision:
(1) Extend time for the filing of an application for leave to appeal to 23 March 2012.
(2) Grant leave to appeal.
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against conviction - appellant convicted of armed robbery - whether Judge failed to give jury proper direction about circumstantial evidence and use of coincidence evidence - whether inappropriate for Crown not to lead evidence of biometric measurement of height - whether the conviction is unreasonable or cannot be supported, having regard to all the evidence
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Evidence Act 1995
Weapons Prohibition Act 1998
Cases Cited: M v R [1994] HCA 63; (1994) 181 CLR 487
Morris v R [1987] HCA 50; (1987) 163 CLR 454
SKA v R [2011] HCA 13; (2011) 243 CLR 400
Wood v R [2012] NSWCCA 21
Category: Principal judgment
Parties: Tarkan Tuncbilek (Appellant)
Crown (Respondent)
Representation: Self (Appellant)
T Smith (Respondent)
Self (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/208112
Decision under appeal

Date of Decision:

2010-11-03 00:00:00

Before:

Flannery DCJ

File Number(s):

2009/208112

Judgment

McCLELLAN CJ at CL: I agree with Garling J.

JOHNSON J: I agree with Garling J.

GARLING J: Tarkan Tuncbilek applies for leave to appeal against his conviction by a jury for the offence of armed robbery of the Greater Building Society at Lake Haven on 10 August 2009, contrary to s 97(2) of the Crimes Act 1900.

For the reasons which follow, I propose that leave to appeal be granted, and that the appeal be dismissed.

Procedural history

The Greater Building Society at Lake Haven on the Central Coast was, on 10 August 2009, the subject of an armed robbery, by three men whose faces were covered with either balaclavas or ski masks, but who were armed respectively with a sledgehammer, a crowbar and a handgun. $37,000 was taken during the robbery. The three men were seen escaping from the Building Society in a silver Subaru motor vehicle in which a fourth man had been waiting as the getaway driver.

On 21 August 2009, the applicant was travelling in a silver Subaru motor vehicle with three other men when it was stopped by police at Auburn. In the car was found a sledgehammer, a crowbar and a replica handgun. As well, in a backpack belonging to the applicant, a balaclava and ski mask were found.

At that time, because the applicant was on parole in respect of a previous offence, he was entered into custody on 23 August 2009 following revocation of parole. The balance of his parole expired on 10 April 2010.

Following further enquiries by Police, on 17 September 2009, the applicant was charged with a number of…

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 Tuncbilek v The Queen

Details

AGLC: Tuncbilek v The Queen [2012] NSWCCA 224
Case: [2012] NSWCCA 224
Decision Date: 24 October 2012

CaseChat Overview and Summary

The appellant, Tuncbilek, was convicted of armed robbery in the Supreme Court of Victoria and appealed to the High Court. The appellant was found guilty of robbing a convenience store at knifepoint and was sentenced to a term of imprisonment. The appeal to the High Court was based on several grounds, including the submission that the trial judge had failed to properly direct the jury on the use of circumstantial evidence and coincidence evidence. The appellant also contended that the Crown's failure to lead evidence of a biometric measurement of the appellant's height was inappropriate and that the conviction was unreasonable or could not be supported by the evidence.

The central legal issues for the Court to determine were whether the trial judge had adequately instructed the jury on the use of circumstantial and coincidence evidence in criminal trials, whether the Crown's failure to lead evidence of the appellant's height was a significant omission, and whether the conviction was unreasonable or unsupported by the evidence. The Court considered whether the trial judge's instructions to the jury were sufficient to ensure a fair trial and whether the omission of the biometric measurement evidence was a material defect in the case presented by the Crown. Additionally, the Court assessed whether the conviction was unreasonable or could not be supported by the evidence when viewed in its entirety.

The Court held that the trial judge's instructions to the jury were adequate, as they correctly explained the principles governing the use of circumstantial and coincidence evidence. The Court found that the omission of the biometric measurement evidence was not a material defect, as it did not impact the overall reliability of the evidence presented against the appellant. Furthermore, the Court determined that the conviction was both reasonable and supported by the evidence, taking into account the totality of the circumstances and the findings of the jury. The appeal was ultimately dismissed by the Court, with the conviction for armed robbery upheld.

Orders