Turner v R - [2015] NSWCCA 322

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turner v R [2015] NSWCCA 322
Hearing dates: 18 September 2015
Decision date: 18 December 2015
Before: Meagher JA at [1];
Hall J at [74];
Schmidt J at [81]
Decision:
(1) Extend time to file notices of appeal against conviction and leave to appeal against sentence to 12 June 2014.
(2) Dismiss the appeal against conviction.
(3) Refuse leave to appeal against sentence.

Catchwords:
CRIMINAL LAW – conviction appeal – whether prosecution evidence improperly obtained or manufactured – whether conduct of prosecution case abuse of process – whether trial miscarried because prosecution witnesses not called – no impropriety on the part of police or prosecution established in relation to conduct of trial – no miscarriage of justice
CRIMINAL LAW – sentence appeal – whether error of the kind identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 established
Legislation Cited: Crimes Act 1900 (NSW), s 33
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Criminal Procedure Act 1986 (NSW), ss 68, 75
Evidence Act 1995 (NSW), s 184
Government Information (Public Access) Act 2009 (NSW)
Cases Cited: Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Ignjatic (1993) 68 A Crim R 333
Ratten v The Queen [1974] HCA 35; 131 CLR 510
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Donovan Bruce Turner (Applicant)
Regina (Crown)
Representation:
Counsel:
Applicant (in person)
H Baker (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/16941
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

27 March 2009, 24 June 2009

Before:

Frearson DCJ

File Number(s):

2008/11/1112

Judgment

MEAGHER JA: On 27 March 2009 the applicant was found guilty, following a trial in the District Court before his Honour Judge Frearson SC and a jury, of wounding Troy Clough with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW). That offence occurred on 29 May 2008 in a boarding house at Kirrawee. The applicant was sentenced on 24 June 2009 to imprisonment for 7 years and 3 months, with a non-parole period of 5 years. That non-parole period expired on 26 March 2014 and the applicant was released on parole on 26 March 2015.
On 17 July 2009, the applicant filed a notice of intention to appeal against his conviction and sentence. The time for which that notice had effect was extended until 26 February 2010. There have been no further applications for an extension of that time. Since late 2009, the applicant has been self represented and has filed a large volume of material in support of his appeal. On 12…

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.

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Details

Case: [2015] NSWCCA 322
Decision Date: 18 December 2015

CaseChat Overview and Summary

Turner appealed against his conviction and sentence. Turner was convicted of various offences, including robbery, following a trial. Turner sought to appeal his conviction and sentence on various grounds. Turner alleged that the prosecution evidence was improperly obtained or manufactured. He also argued that the conduct of the prosecution case amounted to an abuse of process and that the trial miscarried because the prosecution did not call certain witnesses. Turner further alleged that his sentence was excessive. Turner's appeal against his conviction was dismissed. Turner's appeal against his sentence was also dismissed. The court found that there was no impropriety on the part of the police or prosecution in relation to the conduct of the trial and that there was no miscarriage of justice. The court also found that there was no error of the kind identified in Muldrock v The Queen that would warrant a reduction in Turner's sentence. The court held that the appeal against the conviction and sentence should be dismissed.

Orders