Kizildag v R [2013] NSWCCA 125

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kizildag v R [2013] NSWCCA 125 Hearing dates: 10 May 2013 Decision date: 24 May 2013 Before: Macfarlan JA at [1]; Fullerton J at [2]; Adamson J at [3] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - incompetence of counsel - whether reasonable explanation for conduct of counsel - whether miscarriage of justice - whether fair chance of acquittal lost Legislation Cited: - Crimes Act 1900, s 97(1), s 154C(2) - Criminal Appeal Act 1912, s 6(1) Cases Cited: - Nudd v The Queen [2006] HCA 9; 80 ALJR 614 - TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Category: Principal judgment Parties: Ali Kizildag (Appellant) Regina (Respondent) Representation: Counsel: GF Jauncey (Appellant) PG Ingram (Crown) Solicitors: Jack Rigg Solicitors (Appellant) Director for Public Prosecutions (Crown) File Number(s): 2010/119545 Publication restriction: Nil Decision under appeal Date of Decision: 2011-05-24 00:00:00 Before: Payne DCJ File Number(s): 2010/119545

Judgment 1MACFARLAN JA: I agree with Adamson J. 2FULLERTON J: I agree with Adamson J.

Introduction 3ADAMSON J: The appellant appeals against his conviction in respect of the following two counts following a trial by jury before Payne DCJ in the District Court at Parramatta: (1)Aggravated taking with assault and driving a motor car contrary to s 154C(2) of the Crimes Act 1900 (NSW); and (2)Armed robbery contrary to s 97(1) of the Crimes Act. 4The notice of appeal filed on 27 September 2012 sets out nine grounds of appeal. None of these grounds was pressed. The appellant's amended final submissions filed on 1 November 2012 contain a single ground: a miscarriage of justice was occasioned by the incompetence of counsel. 5The alleged incompetence was said to arise from the failure by trial counsel to cross-examine an eyewitness to the second count about her identification of the appellant in an identification parade.