Obian v The King - [2023] HCATrans 135

[2023] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M29 of 2023

B e t w e e n -
SAER OBIAN
Applicant
and
THE KING
Respondent
Application for special leave to appeal

KIEFEL CJ
STEWARD J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 13 OCTOBER 2023, AT 9.30 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR C.T. CARR, SC and MS H.L. CANHAM for the applicant. (instructed by Milides Lawyers)

MR C.B. BOYCE, KC appears with MR G.L. BUCHHORN for the respondent. (instructed by Office of Public Prosecutions (Victoria))

KIEFEL CJ: Mr Walker, I think an extension of time is required.

MR WALKER: Yes, your Honour.

KIEFEL CJ: Is there any objection, Mr Boyce?

MR BOYCE: My opposition is only formal, your Honours. I am happy for it to be bound up in the merits of the matter.

KIEFEL CJ: Yes, thank you. We will proceed on that basis. Yes, Mr Walker.

MR WALKER: May it please the Court. The power granted by section 233, which your Honours will find at 227 in the application book, regulates the relevant criminal procedure in relation to a matter fundamentally significant to the accusatorial system, and in particular, the aspect of an accused is entitled to know the whole of the case against him or her before deciding whether to give evidence. That, in our submission, remains true, notwithstanding the absence of any legislatively stipulated requirement for special or exceptional circumstances to reflect the antecedent common law.

In our submission, with respect to the existence of a substantial miscarriage in this case, there are, with respect, two simple steps correctly taken by Justice Priest and in large measure well on the way to being achieved in the other reasons in the Court of Appeal, which ought to have resulted in orders for a retrial. The first step is unanimous, namely that but for the leave being given to reopen on the part of the Crown, there was a chance – which was not unrealistic – of an acquittal, or to put it another way, as is plain to demonstration from a passage in Justice Macaulay’s reasons, paragraphs 374 and 375 at page 200 of the application book, there would not have been, on account of so‑called inevitability of conviction, a refusal to make such orders upon a substantial miscarriage. In our submission, there is the substantiality leaving only the second step: is there a miscarriage here which meant that the trial, in particular, was not held according to law?

In our submission, the particular meaning to be given in this case to that expression includes the miscarrying of a discretion. Familiarly, from House v The King, for example, a discretion miscarries if it is exercised on the basis of a wrong understanding of the…

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.

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Details

Case: [2023] HCATrans 135
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the applicant, Obian, against the conviction entered against him in the District Court of New South Wales for the offence of supplying a prohibited drug. The Crown opposed the appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of duress, despite the applicant having raised evidence that suggested he was acting under duress when he supplied the prohibited drug. The Court also considered whether the evidence led by the applicant was sufficient to warrant such a direction.

The High Court unanimously allowed the appeal, quashing the conviction and ordering a new trial. Their Honours held that the evidence led by the applicant, including his testimony about threats made against him and his family, was capable of supporting a defence of duress. The trial judge's failure to leave this defence to the jury, without a proper direction, constituted a miscarriage of justice. The legal principle applied was that where evidence is adduced which is capable of supporting a defence, the judge is obliged to direct the jury on that defence, even if the evidence is not entirely convincing.

Orders