Mesterovic v R [2016] NSWCCA 140

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mesterovic v R [2016] NSWCCA 140 Hearing dates: 6 July 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Before: Bathurst CJ at [1]; Ward JA at [1]; Payne JA at [1] Decision: Leave to appeal is refused under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on all grounds. Catchwords: CRIMINAL LAW – appeal – conviction and sentence –applicant convicted of knowingly taking part in the cultivation by enhanced indoor means and for a commercial purpose of a number of cannabis plants, being not less than the small quantity but less than the commercial quantity, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) – whether the primary judge gave undue weight to the Crown case and failed properly to describe the applicant's case in his summing up – whether evidence concerning the smell of cannabis plants should not have been admitted in circumstances where that evidence had not been foreshadowed prior to the trial – whether the applicant suffered a miscarriage of justice as a result of advice from his barrister that he not give evidence in his own defence – whether the primary judge erred in imposing a two-year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether to admit new evidence on the appeal Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10 Criminal Appeal Act 1912 (NSW), s 5 Criminal Appeal Rules, r 4 Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 43 Evidence Act 1995 (NSW), s 136 Cases Cited: R v Birks (1990) 19 NSWLR 677 Rasic v R [2009] NSWCCA 202 Category: Principal judgment Parties: Applicant: Andrija Mesterovic Respondent: Regina Representation: Counsel: Applicant: Self represented Respondent: N Noman SC