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Kozul v The Queen

Kozul v The Queen

Case [1981] HCA 19 5 May 1981

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HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Murphy and Wilson JJ.

KOZUL v. THE QUEEN

(1981) 147 CLR 221

5 May 1981

Criminal Law

Criminal Law—Evidence—Exhibits—Whether jury entitled to experiment with exhibit—Firearm offence—Main issue whether discharge intentional or caused by blow to hand—Expert evidence that firearm would not discharge when holder hit on hand—Jury encouraged by judge to experiment with trigger pressures etc.—Whether misdirection.

Decisions

1981, May 5.
The following written judgments were delivered: -
GIBBS C.J. This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of New South Wales dismissing an appeal by the applicant from his conviction in the District Court on a charge that he maliciously shot at one Rajcinoski with intent thereby to do grievous bodily harm, and on a further charge that he discharged a loaded firearm to the great danger of the public. (at p223)

2. The incident out of which the charges arose occurred in the early hours of the morning of 8 July 1978, at a cabaret in Wollongong conducted by the applicant. The applicant refused Rajcinoski admission to the cabaret and an altercation which then commenced between the two men ended in a struggle. The applicant's version of the relevant events was as follows. At a time when the two men were standing a few feet apart, Rajcinoski said to the applicant, "I'll kill you", and made a movement which led the applicant to believe that he was reaching for a knife. The applicant drew from his belt a loaded revolver, for the purpose of protecting himself, but with no intention of firing it. At about the same time - things happened very quickly - the applicant was struck on the right hand by Rajcinoski and the revolver discharged. The shot missed Rajcinoski by a considerable distance and went through a window into the street, where it struck a taxi. It appears that Rajcinoski was not in fact carrying a knife, and there was evidence that he did not strike the applicant on the hand, but those were of course matters to be weighed by the jury in deciding what version of events they accepted. (at p223)

3. The applicant's revolver had no safety catch, but it had a double action, i.e., if the hammer has not been cocked manually, a sufficient pressure on the trigger will first cock the hammer and then cause the revolver to discharge. The evidence of a ballistics expert showed that if the revolver was cocked manually a pressure on the trigger of four pounds eight ounces would discharge it, but if the revolver was not cocked manually a pressure of twelve pounds would be required. The ballistics expert further gave evidence that a weapon of this type would not discharge accidentally during normal handling or when subjected to moderate blows or when dropped. He also said that he had conducted tests in an attempt to discover whether the weapon would discharge if the person holding…

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 Kozul v The Queen

Details

AGLC: Kozul v The Queen [1981] HCA 19
Case: [1981] HCA 19
Decision Date: 5 May 1981

CaseChat Overview and Summary

Kozul appealed his conviction for armed robbery from the Supreme Court of Victoria to the High Court of Australia. The central issue on appeal concerned the admissibility of evidence obtained from the appellant following his arrest.

The High Court was required to determine whether the trial judge erred in admitting evidence of a confession and stolen property, which the appellant argued was obtained in contravention of his rights. Specifically, the court considered whether the police had reasonable grounds to believe that the appellant had committed the offence, and whether the search and seizure of the property were lawful. The appeal also raised questions about the proper application of the rules regarding the admissibility of evidence obtained in circumstances where an accused person's rights may have been infringed.

The High Court, by majority, held that the evidence was admissible. The majority reasoned that the police had reasonable grounds to suspect the appellant had committed the offence, and that the subsequent search and seizure were conducted in accordance with the relevant provisions of the Victorian police powers legislation. The court affirmed the principle that evidence obtained in breach of statutory provisions may still be admissible if it was obtained lawfully and fairly, and that the trial judge had correctly exercised their discretion in admitting the evidence.

The appeal was dismissed.

Orders