Carnaby v R [2021] NSWCCA 275

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Carnaby v R [2021] NSWCCA 275 Hearing dates: 3 November 2021 Decision date: 19 November 2021 Before: McCallum JA at [1]; Davies J at [2]; Adamson J at [3] Decision: In proceedings 2021/298644: (1) Application for release dismissed. In proceedings 2016/373162: (1) Grant leave to appeal in respect of all grounds save for ground 4. (2) Refuse leave in respect of ground 4. (3) Dismiss the appeal. Catchwords: CRIME — Appeals — Appeal against conviction — applicant represented by competent trial counsel before withdrawing his instructions — it was open to the trial judge to refuse a further adjournment in circumstances of delays in obtaining new counsel, the length of the trial to date and the applicant's ability to conduct the trial — it is a matter for the jury whether to accept or reject evidence of witnesses —no appeal lies against a verdict of not guilty — the obligation on the Crown to call or make available for cross-examination all relevant witnesses cannot apply to a witness who cannot be located — evidence of unsuccessful attempts to locate witnesses — applicant alleged unreasonable verdicts where inconsistencies in a witness' evidence — no fundamental inconsistency that ought to have caused the jury reasonable doubt as to the applicant's involvement — applicant is bound by forensic choice not to call witnesses — documents to be tendered agreed before trial counsel was dismissed — trial judge correct in not admitting evidence of a co-offender's previous conviction where circumstances of the conviction were unknown — none of the verdicts of guilty were unsafe, unreasonable or inconsistent — it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt — transcript shows the extent to which the trial judge sought to ensure the applicant obtained a fair trial — time taken by the jury was not unreasonably short or an indication that they did other than discharge their functions appropriately CRIME — Bail — Appeal bail — second application for release made by applicant for the purposes of preparing his appeal — appeal is to be dismissed — basis for bail being granted has fallen away — release application dismissed Legislation Cited: Bail Act 2013 (NSW), ss 18, 22 Crimes Act 1900 (NSW), ss 192E, 351A Evidence Act 1995 (NSW), ss 128, 137, 191 Cases Cited: Browne v Dunn (1893) 6 R 67 Carnaby v R [2021] NSWCCA 203 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 McInnis v The Queen (1979) 143 CLR 575; [1979] HCA 65 R v Birks (1990) 19 NSWLR 677 R v Suteski (2002) 56 NSWLR 182; [2002] NSWCCA 509 The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38 Category: Principal judgment Parties: Raymond Carnaby (Applicant) Regina (Respondent) Representation: Counsel: In person (Applicant) C Gleeson (Respondent)