Regina v Demiroz [2003] NSWCCA 146

New South Wales Court of Criminal Appeal

CITATION : Regina v Demiroz [2003] NSWCCA 146 revised - 02/09/2008 HEARING DATE(S) : 26 May 2003 JUDGMENT DATE : 26 May 2003

JUDGMENT OF : Sheller JA at 68 & 70; Hidden J at 69; Carruthers AJ at 1 DECISION : Appeal allowed, convictions quashed, new trial ordered on all counts.

CATCHWORDS : Criminal law - evidence - identification of accused in issue - whether judge erred in not giving directions and warning on identification evidence - mandatory requirements of s 116 of the Evidence Act considered Crimes Act 1900, ss112(2); 154A(1)(b) LEGISLATION CITED : Criminal Appeal Act 1912 s6(1) Evidence Act, ss 128; 165(1)(b); 165(2) Domican v The Queen (1992) 173 CLR 555 CASES CITED : Mraz v The Queen (1955) 93 CLR 493 R v Bruno (CCA, unreported, 19/6/97) R v Clarke (1997) 97 A Crim R 414 PARTIES : Regina v Muammer (aka Paul) Demiroz FILE NUMBER(S) : CCA 60406/02 COUNSEL : Appellant - A. Francis Crown - M. Grogan SOLICITORS : Appellant - Heenan & Company Crown - S.E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0306 FILE NUMBER(S) : LOWER COURT His Honour Judge Viney QC JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60406/02

SHELLER AJ HIDDEN J CARRUTHERS AJ

Monday, 26 May 2003 REGINA v Muammer (aka Paul) DEMIROZ Judgment 1 CARRUTHERS AJ: Muammer Demiroz (also known as Paul Demiroz and to whom I shall refer as the appellant) appeals against his convictions at the Penrith District Court on 7 June 2002 upon two counts of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900 (hereinafter the Act) and one count of drive vehicle taken without consent of owner under s 154A(1)(b) of the Act. 2 On 3 June 2002 the appellant was arraigned at the Penrith District Court before his Honour Judge Viney QC and a jury of twelve upon an indictment containing three counts in the following terms: "1) That he on or about 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely that he knew that persons were present in the dwelling house at the time, did break and enter the dwelling house of Joseph Lee situated at 34 Dudley Street and while in the said dwelling did steal certain property, namely a black handbag containing credit cards, cheque books and other personal items; a set of keys and a 68 centimetre Sony television, the property of Joseph and Cam Lee. 2) That he on 10 May 2001 at Lidcombe in the State of New South Wales in circumstances of aggravation, namely, that he knew that a person was present in the dwelling house at the time did break and enter the dwelling house of Joseph Villegas situated at 294 Vaughan Street and while in the said dwelling did steal certain property, namely a Tanada brand acoustic guitar, a Sony DVD player, a Hanimex tripod; a Canon video recorder and a polaroid Joy Cam in a carry case the property of Joseph Villegas. 3) That he on or about 10 May 2001 at Lidcombe in the State of New South Wales did drive a conveyance, namely a Toyota Tarago registration number AEI 85S knowing that the said conveyance had been taken without the consent of the owner." 3 On 7 June 2002 his Honour sentenced the appellant as follows: In respect of each of counts 1 and 2 the appellant was sentenced to a term of imprisonment for eight years to commence on 8 March 2002 and to expire on 7 March 2010. A non-parole period of five years was specified to expire on 7 March 2007. In respect of count 3 the appellant was sentenced to a term of imprisonment for a fixed term of three years to commence on 8 March 2002 and to expire on 7 March 2005.