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Court of Criminal Appeal 18 December 2015

Turner v R

[2015] NSWCCA 322

Assault & violence
CRIMINAL LAW CONVICTION APPEAL NO MISCARRIAGE OF JUSTICE CRIMINAL LAW SENTENCE APPEAL 244 CLR 120 ESTABLISHED

Citation: Turner v R [2015] NSWCCA 322
Court: Court of Criminal Appeal, New South Wales
Date: 18 December 2015
Judges: Meagher JA; Hall J; Schmidt J

Background

The applicant was convicted by a jury in the District Court in March 2009 of wounding a fellow boarding house resident with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW). The incident occurred on 29 May 2008 at a boarding house in Kirrawee, where both men lived in adjacent rooms. The applicant was sentenced to seven years and three months imprisonment with a non-parole period of five years.

The core factual dispute at trial centred on where the glassing occurred and in what circumstances. The victim gave evidence that the applicant attacked him in the hallway without provocation. The applicant's account was that the victim burst through his door and he struck out in self-defence. The wounding itself was not in dispute, as the applicant had formally admitted that the victim was wounded by a glass held by him.

After filing a notice of intention to appeal in July 2009, the applicant proceeded without legal representation and, over several years, accumulated more than 50 grounds of appeal supported by approximately 4,500 handwritten pages of submissions. The Court directed him to consolidate his grounds into a single document of no more than 20 typed pages, which ultimately produced 22 grounds.

  • Whether prosecution evidence was improperly obtained or manufactured, including allegations of police fabrication and corruption
  • Whether the prosecution's conduct amounted to an abuse of process
  • Whether the trial miscarried because certain prosecution witnesses were not called
  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the sentence was affected by the error identified in Muldrock v The Queen [2011] HCA 39, relating to the treatment of standard non-parole periods

Decision

The Court (Meagher JA, with Hall J and Schmidt J agreeing) dismissed each of the 22 grounds of appeal after working through them in turn. The applicant's allegations of police corruption, fabrication of evidence, prosecutorial misconduct, perjury by witnesses, and breach of duty by his trial counsel were all rejected. The Court found no impropriety on the part of police or the prosecution had been established.

On the question of whether the verdict was unreasonable, the Court applied the test from M v R (1994) 181 CLR 487 as restated in MFA v R (2002) 213 CLR 606, requiring an independent assessment of the sufficiency and quality of the evidence. The Crown case rested principally on the victim's evidence, which was supported by forensic material including a glass fragment found in the hallway, DNA-consistent stains on the door and hallway wall, and the evidence of another resident who found the parties being separated in the hallway. The Court concluded it was satisfied, having assessed that evidence, that the applicant was guilty of the offence charged.

On the sentence appeal, the applicant sought to rely on the Muldrock ground, which arises where a sentencing judge treated the standard non-parole period as a fixed or dominant benchmark rather than as a statutory guidepost. The Court refused leave to appeal against sentence, finding no error of that kind was established on the record.

All three judges expressed agreement that the applicant was guilty of the offence of which he had been convicted.

Orders Made

  • Time extended to file notices of appeal against conviction and application for leave to appeal against sentence, to 12 June 2014
  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • In dismissing the conviction appeal, the Court applied the well-established M v R test, independently assessing the sufficiency and quality of the evidence rather than deferring to the jury's verdict alone.
  • Forensic and physical evidence, including DNA-consistent material in the hallway and a glass fragment found there, can provide strong corroboration of a complainant's account when the location of an assault is genuinely disputed.
  • Broad, unparticularised allegations of police corruption, evidence fabrication, and prosecutorial misconduct will not succeed without material capable of substantiating them; the Court found none of the applicant's extensive allegations established.
  • A Muldrock error requires a demonstrated misapplication of the standard non-parole period as a fixed benchmark at sentencing; absence of such error on the record will result in leave to appeal against sentence being refused.
  • Where a self-represented appellant files voluminous and repetitive material, the Court retains power to direct consolidation of grounds into a manageable document, and will address the appeal by reference to those reformulated grounds.

Legislation and Cases Referenced

Legislation
- 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
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Government Information (Public Access) Act 2009 (NSW)

Cases
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Ratten v The Queen [1974] HCA 35; 131 CLR 510
- R v Ignjatic (1993) 68 A Crim R 333