TURNBULL -v- THE QUEEN [2003] WASCA 80

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 80
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:33/2001	Heard:	2 APRIL 2003
Coram:	MURRAY J SCOTT J WHEELER J	Delivered:	2/04/03
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	DANNY GEORGE TURNBULL THE QUEEN
Catchwords:	Criminal law and procedure Appeal Application to dismiss for want of prosecution - Turns on own facts
Legislation:	Nil
Case References:	Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998 R v Mickelberg (1996) 90 A Crim R 126 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TURNBULL -v- THE QUEEN [2003] WASCA 80 CORAM : MURRAY J

SCOTT J

WHEELER J

HEARD : 2 APRIL 2003 DELIVERED : 2 APRIL 2003 FILE NO/S : CCA 33 of 2001 BETWEEN : DANNY GEORGE TURNBULL

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Appeal - Application to dismiss for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : No appearance

Respondent : Mr K P Bates and Mr A D Hills-Wright

Solicitors:

Applicant : No appearance

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998
R v Mickelberg (1996) 90 A Crim R 126

Case(s) also cited:

Nil

(Page 3)

1 MURRAY J: The matter before the Court is an application by the Crown to dismiss, by way of striking out an application for leave to appeal.

2 In the case of Nicholson v The Queen, unreported; CCA SCt of WA; Library No 980698; 7 December 1998, Kennedy J, with whom White and Scott JJ agreed, referred to the case of R v Mickelberg (1996) 90 A Crim R 126 at 129, where Malcolm CJ expressed the opinion, with which Steytler J agreed, that s 697 of the Criminal Code was sufficient to bring into play all of the powers of the Full Court in civil appeals, including the power to dismiss an appeal for want of prosecution. Reference was also made to the inherent jurisdiction of the Court which supported the rules providing for that course to be taken. The Court in Nicholson expressed its agreement with those propositions and, in my respectful opinion, they are undoubtedly correct.

3 The history of the matter is that the convictions with which the appellate proceedings are concerned were sustained in the District Court on 23 February 2001. They were convictions of assaulting public officers. The two charges on the indictment related to offences allegedly committed on 22 December 1998. The application for leave to appeal against those convictions was filed on 12 March 2001. It was unsupported by properly framed grounds of appeal, but it went in to 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 Turnbull v The Queen

Details

AGLC: Turnbull v The Queen [2003] WASCA 80
Case: [2003] WASCA 80
Decision Date: 2 APRIL 2003

CaseChat Overview and Summary

The case of Turnbull v The Queen concerned an appeal against the decision of the High Court of Australia. The appellant, Turnbull, was appealing against his conviction and sentence for a criminal offence. The appeal was primarily focused on the issue of whether the trial judge had erred in his instructions to the jury regarding the onus of proof. The High Court had previously ruled that a trial judge must clearly instruct the jury that the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. Turnbull's appeal centred on the argument that the trial judge's instructions did not sufficiently emphasise this principle.

The central legal issue before the court was whether the trial judge's instructions to the jury were adequate in ensuring that the jury understood the principle that the prosecution must prove the guilt of the accused beyond reasonable doubt. The court needed to determine if the instructions given by the trial judge met the standard required by the High Court's ruling. The appellant's counsel argued that the instructions were inadequate and therefore amounted to a miscarriage of justice. The respondent, the Crown, contended that the instructions were sufficient and that the trial judge had correctly applied the law.

The High Court, in dismissing the appeal, found that the trial judge's instructions were in accordance with the principles laid down by the Court in previous decisions. The court held that the instructions given did sufficiently convey the essential requirement that the prosecution must prove the guilt of the accused beyond reasonable doubt. The court noted that while the instructions could have been more explicit, they were not so deficient as to result in a miscarriage of justice. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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