Cioban v The Queen - [2004] HCATrans 551

[2004] HCATrans 551

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 2004

B e t w e e n -
GHEORGHI CIOBAN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 12.46 PM

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC: If it please the Court, I appear for the respondent in this matter. (instructed by Acting Solicitor for Director of Public Prosecutions (NSW))

KIRBY J: Yes, Mr Odgers.

MR ODGERS: Your Honours, the question raised by this application is the proper test to be applied by a Court of Criminal Appeal in deciding whether a verdict of guilty on one count can stand where it has concluded that a verdict of guilty on another count is unreasonable. We have been unable to find any authority on that question. We submit that the test should be whether it is reasonably possible that the jury relied upon the unreasonable finding of fact.

KIRBY J: But do you not go back to first principles that were explored in MacKenzie, I think, that if it is a principle of our legal system that counts are separate because they refer to different legal offences, they therefore have to be charged and explained and decided separately, that if that is the case and if the judge made no error in requiring that to be done, then our system works on the premise that it is a severable separate point unless there is something in the interrelation that causes one to have disquiet. I think that is essentially what was said in MacKenzie.

MR ODGERS: I accept that, your Honour, and we do not challenge that.

KIRBY J: The price of specificity is severability.

MR ODGERS: Quite, but the question is: what causes one to have disquiet and can one give more clarity to that concept of having disquiet? If a jury, as must be taken to be the case here, has made a factual error in its assessment of what happened and the factual error simply enough was whether or not the first shot was a warning shot or not, they held that it was not a warning shot, that it was a deliberate firing of the gun with an intent to shoot the deceased, the Court of Criminal Appeal has held that that was an unreasonable finding and that on any proper view of it the view should have been taken that it was a warning shot. The question then has to be asked: what significance, if any, does that have when one comes to assess the other count? Does it undermine one’s confidence in the conviction, I think to put it in the language your Honour Justice Kirby put to…

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 The Queen

Details

AGLC: Cioban v The Queen [2004] HCATrans 551
Case: [2004] HCATrans 551
Decision Date

CaseChat Overview and Summary

The case of *Cioban v The Queen* concerned an appeal to the High Court of Australia by the applicant, Mr. Cioban, against his conviction for murder. The dispute arose from the applicant's assertion that the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation.

The central legal issue before the High Court was whether the jury's verdict of guilty of murder was unsafe and unsatisfactory due to the alleged misdirection on provocation. Specifically, the court had to consider whether the evidence presented at trial was capable of supporting a finding that the applicant had acted under provocation, and if so, whether the jury had been properly instructed on the elements of this defence.

The High Court, comprising Kirby and Callinan JJ, ultimately dismissed the appeal. Their Honours found that while the defence of provocation was raised, the evidence did not establish a sufficient evidentiary basis to warrant a detailed direction to the jury on that defence. The nature of the applicant's actions and the surrounding circumstances, as presented at trial, were considered by the court to be inconsistent with the requirements of the provocation defence as established in Australian criminal law. The court concluded that the trial judge's directions, when viewed in their entirety, were adequate in the circumstances and that the verdict was not unsafe or unsatisfactory.

Orders