Kayirici v R [2021] NSWCCA 127

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kayirici v R [2021] NSWCCA 127 Hearing dates: 26 October 2020 Decision date: 25 June 2021 Before: Hoeben CJ at CL at [1]; Harrison J at [2]; Ierace J at [3] Decision: (1) Refuse leave to appeal against conviction in relation to grounds 1, 2, 3, and 5. (2) Grant leave to appeal against conviction in relation to ground 4 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). (3) Allow the appeal against conviction. (4) Quash the conviction. Catchwords: CRIME – Appeals – Appeal against conviction – Break and enter and commit serious indictable offence – Receive stolen property knowing it to be stolen – Special verdict pursuant to s 121 Crimes Act 1914 (NSW) – Drive vehicle knowing police in pursuit, fail to stop and drive in manner dangerous to others – Where evidence of applicant's driver disqualification tendered – Whether trial judge erred in failing to discharge jury in circumstances where defence was on notice of evidence and evidence not objected to – Whether substantial miscarriage of justice – Whether leave to appeal required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – Appeals – Appeal against conviction – Where trial counsel sought to interpose expert witness despite failing to give notice of defence response – Where trial counsel sought to adjourn proceedings to allow expert witness to be called – Where trial judge refused adjournment application – Whether miscarriage of justice occasioned by trial judge's refusal to grant adjournment application CRIME – Appeals – Appeal against conviction – Where trial judge criticised defence counsel in summing-up – Where strong Crown case against applicant – Whether trial judge's summing up was unbalanced – Whether miscarriage of justice CRIME – Appeals – Appeal against conviction – Apprehension of bias – Where trial judge expressed his opinion of the case against the applicant in proceedings after conviction – Whether comments made by trial judge in proceedings after conviction evidenced an apprehension of bias Legislation Cited: Crimes Act 1900 (NSW), ss 51B, 112, 121, 188 Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW), ss 141, 143, 148 Evidence Act 1995 (NSW), s 135 Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: Amagwula v R [2019] NSWCCA 156 Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Medich v R [2021] NSWCCA 36 Miller v R (2015) 252 A Crim R 486; [2015] NSWCCA 206 MK v R [2018] NSWCCA 105 Picken v R [2007] NSWCCA 319 Potier v R [2015] NSWCCA 130 RWB v The Queen (2010) 202 A Crim R 209; [2010] NSWCCA 147 Category: Principal judgment Parties: Mustafa Kayirici (Applicant) Regina (Respondent) Representation: Counsel: Ms N Carroll (Applicant) Mr G Newton (Crown)