Turner v R 14 February 2008

The applicant sought an extension of time within which to appeal and within which to apply for leave to appeal against a jury’s finding of guilt of one count of possessing a commercial quantity of cannabis (2.3356 kg) and a sentence of 2 years imprisonment with a non-parole period of 12 months.

As to conviction the proposed grounds were that the learned trial judge:

1. Erred by failing to give the jury any direction, or alternatively any proper direction, in accordance with the decision of the High Court in Azzopardi v R (2001) CLR 50, in relation to the election of the applicant not to give evidence on oath at the trial.

2. Erred by failing to give any warning, or alternatively any adequate warning, in accordance with the decision of the New South Wales Supreme Court in R v OGD (1997) 45 NSWLR 744, to the effect that there may be reasons which were unknown to them as to why the applicant remained silent and did not give evidence.

3. Erred in admitting evidence of the circumstances of the finding of the sum of $23,550.00 which such evidence was highly prejudicial and had previously been excluded as evidence in the trial in the exercise of the discretion of another judge of this Honourable Court.

4. Erred in failing to put, or alternatively adequately put, the defence case to the jury during the course of his summing up.

5. Erred in his directions to the jury in relation to the onus on the prosecution to prove its case beyond reasonable doubt and in particular failed to make it clear, or sufficiently clear to the jury, that the onus remained on the prosecution at all times to prove its case beyond reasonable doubt.

6. Erred in the way in which he formulated his directions to the jury on the burden of proof.

Both applications were opposed by the Crown.

As to sentence the proposed grounds were that the learned sentencing judge erred:

1. In imposing a sentence that was manifestly excessive in all the circumstances.

2. In not suspending the sentence of imprisonment which he imposed.

3. In rejecting the evidence of the applicant given during the sentencing process.

4. In giving the “greatest weight to punishment, denunciation and deterrence” and in failing to give proper and adequate weight to other factors relevant to the sentencing process.

All the applications were refused.

The applicant subsequently applied to have the applications heard and determined by the Court of Criminal Appeal constituted by three judges pursuant to s.429(2) of the Criminal Code.

The applications which were listed for re-hearing on 18 August 2008, were never heard as the applicant filed a Notice of Discontinuance of all applications on 31 July 2008.ring as at 30 June 2005.