Pasinis v The Queen - [2015] HCATrans 118

[2015] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M55 of 2014

B e t w e e n -
NICHOLAS PASINIS
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 11.31 AM

MR P.F. TEHAN, QC: If the Court pleases, I appear with my learned friend, MR D.D. GURVICH, for the applicant in this matter. (instructed by Victor C Andreou Barrister & Solicitor)

MR T. GYORFFY, QC: If it please the Court, I appear for the respondent. (instructed by the Solicitor for Public Prosecutions (Vic))

HAYNE J: Yes, Mr Tehan.

MR TEHAN: Your Honours, the ground of appeal in the draft notice is at application book 68 and reads:

The Court of Appeal erred in finding that because the applicant was a serious offender the totality principle had a limited operation -

In our submission, the totality principle is to be applied in the sentencing of all offenders, be they classified as serious or otherwise. It is also to be given full measure in all cases, whether the presumption be for concurrency or for cumulation of sentences. It is a fundamental principle of sentencing that a just and appropriate sentence be passed on all offenders.

HAYNE J: According to law.

MR TEHAN: Indeed.

HAYNE J: Yes.

MR TEHAN: That principle applies, of course, to both the head term and the non‑parole period. Your Honours, could we take your Honours through a statutory flow of legislation that applies or applied to the present case. I have handed ‑ ‑ ‑

HAYNE J: With a view to demonstrating what? We have your piece of paper, Mr Tehan, but what is our end product?

MR TEHAN: It is simply the background - the legislative provisions which I take that the Court are well familiar with.

HAYNE J: Have a disturbing familiarity, can I say, Mr Tehan.

MR TEHAN: Yes. Well, anyway, they are set out there in that document, your Honours. The approach of the sentencing judge to the matter is at application book 35 and 36 at paragraph 45 of the sentence:

Intentionally cause serious injuries is a serious violent offence and you qualify as a serious violent offender and fall to be so sentenced on the imposition of prison sentences. Pursuant to s. 6D of the Sentencing Act, I will regard the protection of the community as a principal purpose for which the sentence is imposed. I have not been asked to and will not impose a disproportionate sentence to achieve this purpose. I will direct that the sentence on Count 2 be cumulative in part with Charge 1. In my view the totality principle, though relevant to my sentence as I have indicated, should not undermine these provisions and must therefore be limited somewhat once the sentence is regulated by these sections and the policy…

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: [2015] HCATrans 118
Decision Date

CaseChat Overview and Summary

In *Pasinis v The Queen*, the High Court of Australia considered an appeal by the applicant, Pasinis, against his conviction for murder. The dispute centred on the admissibility of certain evidence during the trial and the subsequent directions given to the jury.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and, if so, whether this error had occasioned a substantial miscarriage of justice. A related issue concerned the adequacy of the jury directions regarding the use of this evidence.

The High Court, comprising Hayne and Nettle JJ, analysed the provisions of the *Uniform Evidence Law* concerning the admissibility of evidence of a person's character, particularly prior convictions. Their Honours held that the evidence of prior convictions was improperly admitted as it did not fall within any of the exceptions to the general prohibition against such evidence. The Court further considered whether the admission of this evidence, and the subsequent directions, had led to a substantial miscarriage of justice.

The High Court concluded that the admission of the evidence of prior convictions was a significant error that likely prejudiced the applicant's case. Accordingly, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders