Giardini v The Queen - [1993] HCATrans 298

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1993
B e t w e e n -
SANDRO GIARDINI

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

Giardini

8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 9.47 AM

MR J.R.A. DOWD, OC:

I appear for the applicant, if it

please the Court, with my learned junior,

MR J.A. COOMBS. (instructed by Roderick Storie)

MR R.O. BLANCH, OC:

May it please the Court, I appear for

the Crown with my learned friend, MR P.J.P. POWER.
(instructed by S.E. O'Connor, Solicitor for Public
Prosecutions (New South Wales)).

MASON CJ: Yes.

MR DOWD:

If the Court please, I have summarized the matters

to be put by the appellant, and some additional
further arguments which I hand up; I have four
copies of that; I will give my learned friend a
copy.

MASON CJ: Yes, thank you.

MR DOWD:

If I may say at the outset, the first two grounds

involve matters of general principle that
automatically attract, it is submitted, the

jurisdiction of this Court. The third matter is
the Jones v Reg issue, which is the supervisory
jurisdiction of this Court and, in part, and
perhaps if I may deal with that matter first, where
the Court of Criminal Appeal has failed to deal
with the matter placed before the Court of Criminal Appeal, it is a substantive matter, then this Court
has an obligation to examine that matter and to
send it back to that court.
There is a second principle that if Jones v

Reg, a clear statement of this Court, is not being
followed, then it is incumbent upon this Court, it
is submitted, to place the matter back - to restate
the necessity for the court to deal with matters
argued before it. In short, on the third matter,
which relates to Parker's case, it was stated by
myself at the hearing before the Court of Criminal

Appeal, that Mr Boulten was misled; my learned
junior had spoken to him; the court was apprised of
that fact; there was no suggestion at that hearing
by the court or otherwise that Mr Boulten was not
misled by, in fact, what Judge Court had said, and
in fact -

MASON CJ: But, Mr Dowd, I fail to understand how he could

have been misled when you read what the sentencing
judge said.

MR DOWD:

Yes, to some extent in a trial - to use the

expression, a nod is as good as a wink - it is
ambiguous what His Honour said at that stage, and
Mr Boulten - and I take it Your Honours have seen

Giardini

8/10/93

the affidavit which has been filed by
Mr Boulten - - -

MASON CJ: Yes, we have read the affidavit.

MR DOWD:

We had an issue of fact…

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 Giardini v The Queen

Details

AGLC: Giardini v The Queen [1993] HCATrans 298
Case: [1993] HCATrans 298
Decision Date

CaseChat Overview and Summary

The applicant, Giardini, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal. The Crown was the respondent. The dispute concerned the applicant's contention that his legal representation at trial was prejudiced by being misled by the trial judge's remarks, which he argued prevented a proper argument regarding sentencing.

The legal issues before the High Court included whether the Court of Criminal Appeal had failed to adequately deal with the matters placed before it, and whether the principles established in *Jones v Reg* concerning the supervisory jurisdiction of the High Court were being followed. Specifically, the applicant argued that his counsel was misled by the trial judge's ambiguous statements, leading to a failure to properly argue the sentencing aspect of the case.

The applicant's counsel submitted that the trial judge's words were open to an interpretation that counsel could reasonably have believed the sentence would not be imposed cumulatively. This, it was argued, constituted being misled, and the Court of Criminal Appeal had not sufficiently addressed this substantive issue. The Chief Justice questioned whether every instance of counsel being misled, regardless of justification, necessitated a reconsideration. The applicant clarified that the argument applied to situations where counsel was genuinely misled within the context of a particular trial, supported by a plausible interpretation of the trial judge's remarks.

Orders