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Klobucar v The Queen

Klobucar v The Queen

Case [2014] ACTCA 6 28 March 2014

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ANDROS STEVE KLOBUCAR v THE QUEEN
[2014] ACTCA 6 (28 March 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against conviction – whether finding of fact was open – whether conviction was unsafe and unsatisfactory because it was dependent upon testimony given five years after offence – whether trial judge’s recollection and assessment of testimony was compromised by delay in giving judgment.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – appeal against sentence – whether adequate weight given to principle of parity – whether sentence manifestly excessive – whether trial judge erred by using a tariff.

Criminal Code 2002 (ACT) ss 45, 600, 603
Supreme Court Act 1933 (ACT) s 37O

Haros v Linfox Australia Pty Ltd [2012] FCAFC 42
Hili v The Queen (2010) 242 CLR 520
Kelly v The Queen [2011] VSCA 10
Lowe v The Queen (1984) 154 CLR 606

M v The Queen (1994) 181 CLR 487

Markarian v The Queen [2005] HCA 25
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Monie v Commonwealth of Australia (2005) 63 NSWLR 729
Nguyen v The Queen [2013] ACTCA 11
Pavicevic v The Queen [2010] ACTCA 25
Postiglione v The Queen (1997) 189 CLR 295
R v Griggs [1999] FCA 1573
R vHillier (2007) 228 CLR 618
R v Pan [2005] NSWCCA 114
Tak Fat Wong v The Queen (2001) 207 CLR 584

WA v The Queen [2011] ACTCA 4

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 41 – 2013
No. ACTCA 63 – 2013
No. SCC 186 of 2010

Judges: Murrell CJ, Burns and Ross JJ
Court of Appeal of the Australian Capital Territory
Date: 28 March 2014

IN THE SUPREME COURT OF THE     )          No. ACTCA 41 – 2013
  )          No. ACTCA 63 – 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 186 of 2010
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANDROS STEVE KLOBUCAR
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Murrell CJ, Burns and Ross JJ
Date:  28 March 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ANDROS STEVE KLOBUCAR
Appellant

AND:THE QUEEN
Respondent

Judges:  Murrell CJ, Burns and Ross JJ
Date:  28 March 2014
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

The appeal

The appellant appeals against his conviction and sentence for the offence that on 21 August 2007 at Canberra in the Australian Capital Territory he procured Yaresul Silkeci to traffic in a controlled drug other than cannabis, namely methylamphetamine. The offence involves a contravention of ss 603 and 45 of the Criminal Code…

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 Klobucar v The Queen

Details

AGLC: Klobucar v The Queen [2014] ACTCA 6
Case: [2014] ACTCA 6
Decision Date: 28 March 2014

CaseChat Overview and Summary

The applicant, Klobucar, appealed against his conviction and sentence for an offence. The appeal was heard by the Court of Criminal Appeal of New South Wales.

The primary legal issues before the Court were whether the conviction was unsafe and unsatisfactory due to the passage of time between the offence and the testimony relied upon for conviction, and whether the trial judge's assessment of the evidence was compromised by a delay in delivering judgment. Additionally, the Court considered whether the sentence imposed was manifestly excessive, whether adequate weight had been given to the principle of parity, and whether the trial judge had erred by employing a tariff approach.

The Court of Criminal Appeal dismissed the appeal. It found that the conviction was not unsafe or unsatisfactory, implicitly determining that the delay in judgment did not compromise the trial judge's assessment of the evidence. Furthermore, the Court concluded that the sentence was not manifestly excessive and that the trial judge had not erred in their sentencing approach.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Klobucar v The Queen [2014] ACTCA 6

Most Recent Citation

Ning v McGrath [2015] ACTSC 163

Cases citing this decision · 11 of 11 shown

Director of Public Prosecutions v Mussa
[2025] ACTSC 342

…m [2020] ACTSC 15 ( McCallum ); R v Negah [2019] ACTSC 243; R v Hagan [2016] ACTSC 343 ( Hagan ); R v Nikro [2015] ACTSC 231 and Klobucar v The Queen [2014] ACTCA 6. These outcomes demonstrate that generally, periods of full- time imprisonment were imposed for trafficking offences, consistent with the maximum pen…
Director of Public Prosecutions v O'Keefe
[2024] ACTSC 210

…262 CLR 428 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v The Queen [2017] NSWCCA 144 Klobucar v The Queen [2014] ACTCA 6 Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldroc…
R v Baxendale
[2018] ACTSC 260

…242 CLR 520 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 6 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Mun v R [2015] NSWCCA 234 R v Edigarov [2001] NSWCCA 426 R v HC [2018] ACTSC 49 R v Keyes [2016] ACTS…
R v Bandy
[2018] ACTSC 261

…en [2010] HCA 45; 242 CLR 520 Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Monfries v The Queen [2014] ACTCA 6 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Amosa [2015] ACTSC 34 R v Ang [2014] ACTCA 17 R v Bartlett [2016] ACTSC 390 R v Bartlett (No 2) […
R v Miller
[2018] ACTSC 244

…; 242 CLR 520 Johnston v The Queen [2017] NSWCCA 53 Legge v R [2007] NSWCCA 244 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Monfries v The Queen [2014] ACTCA 6 R v Hart ( Unreported, Supreme Court of the ACT, Refshauge J, 7 December 2012) R v Hemsley [2004] NSWCCA 228 R v Henry [1999] NSWCA 111; 46 NSWLR 346…
Scuderi v Raskurasingham
[2017] ACTSC 41 Para 1

…a hearing of the case and the magistrate’s decision I need to approach the appeal in the light of the principles summarised in Klobucar v The Queen [2014] ACTCA 6 at [25].…
R v Hagan
[2016] ACTSC 343 Para 1

…rien v The Queen [2015] ACTCA 47 ( O’Brien v The Queen ), Bui v The Queen [2015] ACTCA 5 ( Bui v The Queen) , Andros Steve Klobucar v The Queen [2014] ACTCA 6 ( Klobucar v The Queen ) and Jeremy Nguyen v The Queen [2013] ACTCA 11 ( Nguyen v The Queen) .…
Thompson v The Queen; The Queen v Thompson
[2016] ACTCA 12 Para 1

…In Klobucar v The Queen [2014] ACTCA 6, this Court, after quoting the above passages from M v The Queen , said at [22]:…
Thomson v R
[2015] ACTCA 16 Para 1

…181 CLR 487 ( M ) and considered in R v Hillier (2007) 228 CLR 618 ( Hillier ). Recently, the test was applied by this Court in Klobucar v The Queen [2014] ACTCA 6 at [21]–[22]. The test is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt about the guilt of…
Wsol v John James Memorial Hospital
[2015] ACTSC 378 Para 1

…In Klobucar v The Queen [2014] ACTCA 6 at [25], the Court of Appeal set out the principles to be applied in these circumstances as follow:…
Ning v McGrath
[2015] ACTSC 163 Para 1

…particularly where witness credit is important to the decision or, for another reason, one witness is preferred over another. In Klobucar v The Queen [2014] ACTCA 6 ( Klobucar ), the appellant argued that a delay of 16 months between trial and judgment in a judge alone criminal trial had caused a miscarriage of j…

View all 11 citing cases →

Cases cited in this decision · 16 of 16 shown

Nguyen v The Queen
[2013] ACTCA 11

…nister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Monie v Commonwealth of Australia (2005) 63 NSWLR 729 Nguyen v The Queen [2013] ACTCA 11 Pavicevic v The Queen [2010] ACTCA 25 Postiglione v The Queen (1997) 189 CLR 295 R v Griggs [1999] FCA 1573 R v Hillier (2007) 228 CLR 618 R v Pan [2…
Haros v Linfox Australia Pty Ltd
[2012] FCAFC 42 Para 1

…t the trial, there was no significant attack on the reliability of Mr Silkeci or any other witness. Like the case of Haros v Linfox Australia Pty Ltd [2012] FCAFC 42, where the judgment was delayed by 13 months, this case is not one in which the judgment depended on the judge’s observations of the demeanour of wit…
WA v The Queen
[2011] ACTCA 4 Para 1

…That passage from M v The Queen was endorsed in Hillier (a circumstantial evidence case) by Gummow, Hayne and Crennan JJ. In WA v The Queen [2011] ACTCA 4, which was not a circumstantial evidence case but one concerned with the credibility of the complainant, this Court noted the importance of the passage in M v…
Kelly v The Queen
[2011] VSCA 10 Para 1

…This Court in Pavicevic v The Queen [2010] ACTCA 25 applied the law as enunciated in Lowe, Postiglione and Pan . More recently, in Kelly v The Queen [2011] VSCA 10 the Victorian Court of Appeal affirmed the principle of parity.…
Hili v The Queen
[2010] HCA 45 Para 1

…encing court must carefully examine all the circumstances underpinning any past sentence upon which it intends to rely for guidance: Hili v The Queen (2010) 242 CLR 520 ( Hili ).…
Pavicevic v The Queen
[2010] ACTCA 25 Para 1

…This Court in Pavicevic v The Queen [2010] ACTCA 25 applied the law as enunciated in Lowe, Postiglione and Pan . More recently, in Kelly v The Queen [2011] VSCA 10 the Victorian Court of Appeal affirmed the principle of parity.…
Monie v Commonwealth of Australia (No 2)
[2008] NSWCA 15 Para 1

…cts upon the traditionally recognised advantage held by a trial judge of having the opportunity to see and hear the witnesses give their evidence. In Monie v Commonwealth of Australia (2005) 63 NSWLR 729 there had been a 17 month delay in delivering judgment in a civil trial. At [43], Hunt AJA (with whom Bryson JA agreed) set out the appr…
Markarian v The Queen
[2005] HCA 25 Para 1

…that her Honour departed from the proper approach of “instinctive synthesis” that was endorsed by the High Court in Markarian v The Queen [2005] HCA 25 ( Markarian ) and instead adopted the mathematical or “two-stage approach” that was criticised in Tak Fat Wong v The Queen (2001) 207 CLR 584.…
Monie v the Commonwealth
[2005] NSWCA 25 Para 1

…sed advantage held by a trial judge of having the opportunity to see and hear the witnesses give their evidence. In Monie v Commonwealth of Australia (2005) 63 NSWLR 729 there had been a 17 month delay in delivering judgment in a civil trial. At [43], Hunt AJA (with whom Bryson JA agreed) set out the approach that sho…
R v Pan
[2005] NSWCCA 114 Para 1

…In R v Pan [2005] NSWCCA 114 Johnson J at [34] ( Pan ) noted that the test for determining whether there was a legitimate sense of grievance is objective not subjective; whether a reasonable mind looking at what has happened overall would see that the offender’s grievance is justified.…
Wong v The Queen
[2001] HCA 64 Para 1

…05] HCA 25 ( Markarian ) and instead adopted the mathematical or “two-stage approach” that was criticised in Tak Fat Wong v The Queen (2001) 207 CLR 584.…
The Queen v Griggs
[1999] FCA 1573 Para 1

…Similarly, in R v Griggs [1999] FCA 1573 at [18] (citations omitted) Miles J stated:…
Postiglione v the Queen
[1997] HCA 26 Para 1

…Referring to Lowe , in Postiglione v The Queen (1997) 189 CLR 295 ( Postiglione ) Dawson, Gaudron and Kirby JJ endorsed the proposition that equal justice requires that, as between co-offenders, there should not be a marked disparity in sentence that “gives rise to a justifiable sense of grievance” and, that any sent…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 1

…st be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291:…
M v the Queen
[1994] HCA 63 Para 1

…The High Court in M v The Queen (1994) 181 CLR 487 at 493–494 (citations omitted) ( M v The Queen ) set out the principles to be applied by appellate courts when no affirmative error has been established but the verdict is said to be unsafe or unsatisfactory:…
Lowe v R
[1984] HCA 46 Para 1

…In Lowe v The Queen (1984) 154 CLR 606 at 623 ( Lowe ), Dawson J, with whom Wilson J agreed, summarised the parity principle as follows:…

Legislation cited in this decision · 1

Supreme Court Act 1933 (ACT)
37O 2 mentions (from Para 1)