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Cioban v R

Cioban v R

Case [2003] NSWCCA 304 21 October 2003

Appeal

Criminal Liability

Sentencing

Admissibility of Evidence

Unsworn Statement

Reasonable Verdict

Excessive Self-Defence

Criminal Law

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Reported Decision:
139 A Crim R 265

New South Wales

Court of Criminal Appeal

CITATION: CIOBAN v REGINA [2003] NSWCCA 304

HEARING DATE(S): 25 August 2003

JUDGMENT DATE:
21 October 2003

JUDGMENT OF: Mason P at 1; Hidden J at 74; Smart AJ at 75

DECISION: 1. Appeal upheld in part; 2. Set aside the conviction under s33A of the Crimes Act 1900 and in lieu thereof enter a verdict of acquittal.; 3. Leave to appeal against sentence granted.; 4. Appeal against sentence allowed.; 5. In lieu of the sentence imposed the appellant is sentenced to imprisonment for 6 years 6 months starting on 17 June 2002 and ending on 16 December 2008 with a non-parole period of 4 years starting on 17 June 2002 and ending on 16 June 2006. The first date on which the appellant is eligible for release on parole is 17 June 2006.

CATCHWORDS: Criminal law - appeal against convictions - manslaughter - maliciously discharging firearm with intent to do grievous bodily harm - hearsay evidence - unsworn statement - where deponent did not attend trial - whether warning to jury ought to have been given - where no warning sought - Evidence Act s165 - unreasonable verdict - where jury did not see key witness - Sentencing - excessive self defence - whether sentence manifestly excessive

LEGISLATION CITED: Crimes Act 1900

CASES CITED: Longman v The Queen (1989) 168 CLR 79
Mendham and Foster (1993) 71 A Crim R 382
R v Baartman [2000] NSWCCA 298
R v Cioban [2002] NSWSC 972
R v Stewart (2001) 52 NSWLR 301
Williams v R (2000) 119 A Crim R 490

PARTIES :
Gheorge CIOBAN (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 60116 of 2003

COUNSEL: S J Odgers SC (Appellant)
P W Miller (Respondent)

SOLICITORS: The Law Practice (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70008 of 2002

LOWER COURT
JUDICIAL OFFICER : Studdert J

CCA 60116 of 2003
SC 70008 of 2002

MASON P
HIDDEN J
SMART AJ
Tuesday, 21 October 2003

Gheorge CIOBAN v R

Judgment

1 MASON P: The appellant was tried in the Supreme Court on an indictment charging him with the murder of Samuel Ekavati (Count 1) and with maliciously discharging a firearm with intent to do grievous bodily harm (Count 2). Both offences were alleged to have been committed within a short time of each other at Kings Cross in the early morning of 6 January 2000. The event giving rise to the second count was said to have occurred first.

2 Following a trial before Studdert J and a jury the appellant was found not guilty of murder but guilty of manslaughter on Count 1; and guilty on Count 2. Manslaughter had been left to the jury on the bases of excessive self-defence (Crimes Act 1900, s421); unlawful and dangerous act; and provocation.

3 A sentence of imprisonment for 18 months, dating from when the appellant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cioban v R

Details

AGLC: Cioban v R [2003] NSWCCA 304
Case: [2003] NSWCCA 304
Decision Date: 21 October 2003

CaseChat Overview and Summary

The case of Cioban v R involved the appellant, Cioban, who was convicted of manslaughter and maliciously discharging a firearm with intent to do grievous bodily harm. The appeal was heard by the High Court of Australia, with the respondent being the Crown, represented by the Director of Public Prosecutions. The central issue was whether the trial judge should have warned the jury about the unsworn statement of a witness who did not attend the trial and whether the sentence imposed was manifestly excessive.

The court was required to determine if the trial judge should have issued a warning to the jury regarding the hearsay evidence contained in an unsworn statement. The appellant argued that the statement contained significant evidence that was not available to the jury, and that a warning was necessary under section 165 of the Evidence Act. The court examined whether the absence of such a warning could have led to an unreasonable verdict. Furthermore, the court assessed whether the sentence imposed for the offences was manifestly excessive, particularly in light of the appellant's claim of excessive self-defence.

The High Court held that the trial judge did not err in failing to warn the jury about the unsworn statement. The court determined that there was no request for such a warning, and the appellant did not demonstrate that the absence of the warning led to an unreasonable verdict. Regarding the sentence, the court found that it was not manifestly excessive, considering all the circumstances, including the appellant's plea of excessive self-defence. The appeal was ultimately dismissed.

No further orders were made by the court.

Orders