OBLACH v REGINA [2005] NSWCCA 440 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
4 November 2005
JUDGMENT DATE:
15 December 2005
JUDGMENT OF:
Spigelman CJ at 1; Sully J at 72; Hulme J at 84.
DECISION:
1 Appeal against conviction dismissed; 2 Appeal against sentence allowed; 3 Sentence imposed by Ainsley-Wallace DCJ on 17 December 2004 quashed; 4 Remit the proceedings to the District Court for further consideration on sentence.
CATCHWORDS:
CRIMINAL LAW – Appeal – Conviction – Duress – Proper interpretation of s10.2 Commonwealth Criminal Code – meaning of “reasonably believes” – Whether trial judge erred by directing jury to have regard to objective belief of the accused – Whether proper to have regard to the circumstances as perceived by the accused - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not having regard to evidence of threats - WORDS & PHRASES – “reasonably believes”
LEGISLATION CITED:
Commonwealth Criminal Code: Ch 2; ss 10.2, 10.3, 10.4 Crimes Act 1900: s418 Criminal Appeal Rules: r 4 Queensland Criminal Code: s31 Western Australian Criminal Code: s31
SJ Odgers SC (Appellant) W Abraham QC (Respondent)
SOLICITORS:
Legal Aid Commissioner (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
04/11/0356
LOWER COURTJUDICIAL OFFICER:
Ainslie-Wallace DCJ
- 18 -
2005/1291
SPIGELMAN CJ SULLY J HULME J
Thursday 15 December 2005
Renato OBLACH v REGINA
The Appellant was charged with importing a trafficable quantity of cocaine into Australia and was found guilty. At trial, the Appellant had relied upon the duress provisions contained in s10.2 of the Commonwealth Criminal Code as removing his criminal responsibility.
Section 10.2 provides:
“10.2(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless and offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.”
The sole ground of appeal against conviction related to the correctness of the trial judge’s directions to the jury in respect of s10.2. In particular,…
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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AGLC
R v Oblach [2005] NSWCCA 440
Case
[2005] NSWCCA 440
Decision Date
CaseChat Overview and Summary
In the case of R v Oblach, the respondent appealed against both his conviction and sentence. The nature of the dispute involved the interpretation of section 10.2 of the Commonwealth Criminal Code, specifically the phrase "reasonably believes," and whether the trial judge correctly directed the jury to consider the accused's objective belief regarding the duress defence. Additionally, the appeal addressed whether the sentencing judge appropriately considered evidence of threats during the sentencing phase.
The court was required to decide whether the trial judge erred in directing the jury to consider the objective belief of the accused, rather than the circumstances as perceived by the accused. It was also necessary to determine whether it was proper for the jury to consider the accused's objective belief in the context of duress, and to clarify the meaning of "reasonably believes" within the statutory framework. Furthermore, the court had to assess whether the sentencing judge erred by not considering evidence of threats during sentencing.
The court found that the trial judge did not err in directing the jury to consider the objective belief of the accused. The court emphasised that the phrase "reasonably believes" within the statutory context required an objective assessment of the accused's belief. The court held that it was appropriate to consider the circumstances as they would appear to a reasonable person in the accused's position, rather than the subjective perception of the accused. This approach ensured consistency and predictability in the application of the duress defence. Regarding sentencing, the court found no error in the sentencing judge's approach, as the evidence of threats had already been considered in the context of the duress defence during the trial.
The final orders of the court involved the affirmation of the respondent's conviction and sentence. The appeal was dismissed, and the respondent's conviction and sentence were upheld.