Orman v The Queen - [2019] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0134

FARUK ORMAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2019
DATE OF JUDGMENT:	26 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 163
JUDGMENT APPEALED FROM:	[2009] VSC 538 (Weinberg J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Petition of mercy – Referral to Court of Appeal – Appellant convicted of murder after trial by jury – Counsel for appellant had encouraged presentation of principal evidence against him – Fundamental breach of duty – Subversion of right to fair trial – Crown concession properly made – Substantial miscarriage of justice – Conviction quashed – Unjust to order re-trial – Verdict of acquittal entered – Criminal Procedure Act 2009 ss 276(1)(c), 277(1) and 327.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood with Ms C M Lloyd	Galbally Rolfe
For the Respondent	Ms K E Judd QC, Director of Public Prosecutions with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions
For the Chief Commissioner of Victoria Police	Dr I Freckelton QC with Mr J Bayly	Victorian Government Solicitors Office

MAXWELL P
NIALL JA
EMERTON JA:

On 29 September 2009, Faruk Orman was found guilty by a Supreme Court jury of the murder of Victor Peirce. He was sentenced to 20 years’ imprisonment, and a non-parole period of 14 years was fixed.

On 21 September 2010, this Court refused his application for leave to appeal against that conviction and, in February 2011, the High Court refused special leave to appeal.

On 4 February this year, Mr Orman filed a petition of mercy with the Attorney-General, seeking a referral to this Court pursuant to s 327 of the Criminal Procedure Act 2009. He provided detailed submissions and evidence in support of the petition in April and May 2019. Among other things, the petition alleged that he was denied a fair trial because of the conduct of Nicola Gobbo and her role as a human source for Victoria Police.

On 25 June this year, the Attorney-General advised the Chief Justice that she had decided to refer the whole case to the Court of Appeal. That means, under s 327(2) of the Criminal Procedure Act, that the Court of Appeal ‘must hear and determine the case as if it were an appeal’.

Following that referral, Mr Orman filed an application for bail pending the hearing and determination of the appeal. The bail application first came before the Court on 10 July 2019, and was adjourned to 2 August 2019. Subsequently, the Director of Public Prosecutions requested that the matter be brought on at an earlier date.

The bail application was supported by an affidavit of Mr Orman’s solicitor, which included a number of allegations about Ms Gobbo’s conduct. In a written response filed on 24 July, the Director has indicated that the Crown does not accept the factual basis for…

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 Orman v The Queen

Details

AGLC: Faruk Orman v The Queen [2019] VSCA 163
Case: [2019] VSCA 163
Decision Date: 26 July 2019

CaseChat Overview and Summary

Orman v The Queen concerned a criminal appeal against a conviction for murder. The appellant, Orman, sought to appeal his conviction on the basis of a fundamental breach of duty by his trial counsel, which was alleged to have subverted his right to a fair trial. The Court of Appeal was referred to the case under the Criminal Procedure Act 2009. The central legal issues revolved around whether the appellant's trial counsel's actions constituted a fundamental breach of duty, whether this breach resulted in a substantial miscarriage of justice, and whether a re-trial would be just in the circumstances.

The Court of Appeal considered whether the appellant's trial counsel had indeed committed a fundamental breach of duty by encouraging the presentation of principal evidence against him, which would have been an egregious error. The court found that such conduct amounted to a fundamental breach of duty. Furthermore, the court determined that this breach had indeed led to a substantial miscarriage of justice, as it undermined the fairness of the trial. Consequently, the conviction was quashed. Given the gravity of the breach and the potential for prejudice in a re-trial, the court concluded that it would not be just to order a re-trial. Instead, the court entered a verdict of acquittal for the appellant.

The court's decision was grounded in the need to uphold the integrity of the criminal justice system and to ensure that the appellant received a fair trial. The court found that the Crown's concession of a substantial miscarriage of justice was appropriate, and that ordering a re-trial would not remedy the unfairness caused by the counsel's conduct. The court entered a verdict of acquittal under the provisions of the Criminal Procedure Act 2009, reflecting its determination that the appellant should not face another trial under the current circumstances.

Orders