Rossi v The Queen - [2013] HCATrans 107

[2013] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M102 of 2012

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

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 MAY 2013, AT 2.12 PM

MR L.C. CARTER: May it please the Court, I appear with my learned friend, MR M.D. STANTON, for the applicant. (instructed by Spicer Lawyers)

MR B.L. SONNET: If the Court pleases, I appear on behalf of the respondent. (instructed by Office of Public Prosecutions)

KIEFEL J: Yes, Mr Sonnet. Yes, Mr Carter.

MR CARTER: Your Honours, in our submission, it is in the interests of justice that special leave be granted in this case because the applicant’s conviction was returned at a trial where two substantial errors occurred, and indeed were accepted to have occurred by the Court of Appeal. The Court of Appeal, in our submission, ought to have held that the applicant did not have a fair trial according to law and that there had been a significant denial of procedural fairness, resulting in an order for a retrial. In our submission, the Court of Appeal made three errors in arriving at the conclusion that there was no substantial miscarriage and they reflected in the grounds set out in the draft notice of appeal at appeal book 725.

The first ground involves, in our submission, error of principle, and your Honours may have noted that judgment in this matter was delivered on 21 September 2012, shortly prior to this Court’s decision in Baini v The Queen (2012) 293 ALR 472. May we take your Honours to appeal book 720, to the concluding sections of the reasons of Justice Buchanan, with whom the other members of the court agreed. Having identified at paragraph 27 that the question was whether there was:

a substantial miscarriage of justice within the meaning of s 276(1)(b) of the Criminal Procedure Act 2009.

His Honour continued, and if I could take your Honours to the end of paragraph 28:

The task for this Court is not to predict what the jury may have done but to decide whether a substantial miscarriage of justice has actually occurred.

His Honour there identifies specifically the judgment of this Court in Weiss v The Queen (2005) 224 CLR 300, at paragraph 41. Your Honours have that authority at number 1. The statutory task explained in Weiss did not deal with the Criminal Procedure Act, it dealt with the Victorian version of the common form of criminal appeal provision. At paragraph 41 of the joint reasons in Weiss, page 316, the Court states “That task”, that is the statutory task under 568:

is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it…

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: [2013] HCATrans 107
Decision Date

CaseChat Overview and Summary

The case of Rossi v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Rossi, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The High Court then granted special leave to appeal from the decision of the Court of 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 provocation. Specifically, the court had to consider whether there was sufficient evidence of provocation to warrant such a direction, and if not, whether the absence of such a direction had led to a miscarriage of justice.

Kiefel and Keane JJ found that the evidence presented at trial did not support a finding of provocation. Their Honours reasoned that the defence of provocation requires evidence that the act causing death was done in the heat of passion caused by a sudden provocation, and that the provocation was such as to make an ordinary person act as the accused did. In this instance, the conduct relied upon by the appellant as provocation was not sufficiently immediate or severe to meet this threshold, and therefore, the trial judge was not obliged to leave the defence to the jury. The High Court concluded that there was no error in the trial judge's charge and dismissed the appeal.

Orders