NICIFORO -v- THE QUEEN [2000] WASCA 318

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 318
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:91/2000	Heard:	15 AUGUST 2000
Coram:	WALLWORK J PARKER J McKECHNIE J	Delivered:	31/10/00
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal allowed Order for retrial
PDF Version

Parties:	NAZZARENO NICIFORO THE QUEEN
Catchwords:	Criminal law Self defence Direction to jury No new principles
Legislation:	Criminal Code (WA), s 248
Case References:	Boughey v The Queen (1986) 161 CLR 10 Van den Hoek v The Queen (1986) 161 CLR 158 Domican v The Queen (1992) 173 CLR 555 R v Matthews & Ford [1972] VR 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NICIFORO -v- THE QUEEN [2000] WASCA 318 CORAM : WALLWORK J

PARKER J

McKECHNIE J

HEARD : 15 AUGUST 2000 DELIVERED : 31 OCTOBER 2000 FILE NO/S : CCA 91 of 2000 BETWEEN : NAZZARENO NICIFORO

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law - Self defence - Direction to jury - No new principles

Legislation:

Criminal Code (WA), s 248

Result:

Appeal allowed

Order for retrial

(Page 2)

Representation:

Counsel:

Applicant : Mr J D Allanson

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Butcher Paull & Calder

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Boughey v The Queen (1986) 161 CLR 10
Van den Hoek v The Queen (1986) 161 CLR 158

Case(s) also cited:

Domican v The Queen (1992) 173 CLR 555
R v Matthews & Ford [1972] VR 3

(Page 3)

1 WALLWORK J: I agree with the reasons for judgment of McKechnie J and to the orders proposed by his Honour.

2 PARKER J: I have had the advantage of reading in draft the reasons to be published by McKechnie J. His Honour has set out the essential evidence and the issues raised in this application for leave to appeal. I will not, therefore, go over these matters again.

3 The jury had to be directed by the trial Judge with respect to two offences. The first was that charged in the indictment, ie unlawfully causing grievous bodily harm with intent to do so. The applicant was acquitted of this offence. The second offence of unlawfully causing grievous bodily harm was open as a matter of law as a lesser alternative to the offence charged. The distinction between the two offences was the element of intention. The jury returned a verdict of guilty of this alternative offence.

4 When the jury was charged his Honour dealt with a number of issues, including self-defence, on the basis that his directions about those issues applied to both offences. Self-defence, of course, would operate to make lawful the assault of the applicant by which the grievous bodily harm was caused to the victim Worthington. It therefore relates to the element of unlawfulness which applied to both offences.

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 Niciforo v The Queen

Details

AGLC: Niciforo v The Queen [2000] WASCA 318
Case: [2000] WASCA 318
Decision Date: 31 OCTOBER 2000

CaseChat Overview and Summary

In the case of Niciforo v The Queen, the appellant, a criminal defendant, sought to appeal his conviction for murder on the basis that the trial judge had misdirected the jury in relation to the defence of self-defence. The matter was heard in the High Court of Australia. The central issue before the court was whether the trial judge had erred in his directions to the jury regarding the applicable principles of self-defence and whether this constituted a miscarriage of justice.

The court considered whether the trial judge had failed to properly instruct the jury on the principles of self-defence, specifically whether the judge had correctly outlined the objective test for determining the reasonableness of the defendant's belief in the need for self-defence. The court examined the trial judge's directions in the context of the evidence presented and the legal principles applicable to the defence of self-defence. It was determined that the trial judge had not adequately explained the objective nature of the test for self-defence, which was critical to the jury's assessment of the appellant's claim.

The High Court held that the trial judge's direction to the jury had indeed been deficient in failing to properly articulate the objective standard for assessing the reasonableness of the appellant's belief in the need for self-defence. This misdirection was considered to be a significant error that potentially impacted the jury's determination of the appellant's defence. Consequently, the court concluded that the error was not a minor one and warranted the allowance of the appeal and the ordering of a retrial to ensure a fair trial. The appeal was thus allowed, and a retrial was ordered to provide the appellant with an opportunity to have his case heard afresh, with proper directions to the jury on the issue of self-defence.

Orders

Orders of the court

Appeal allowed

Order for retrial

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.