Stoeski v The Queen - [2015] HCATrans 19

[2015] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S280 of 2014

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

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 12.44 PM

MR H.K. DHANJI, SC: Your Honours, I appear with my learned friend, MS G.E.L. HUXLEY, for the applicant. (instructed by William O’Brien & Ross Hudson Solicitors)

MR J.H. PICKERING, SC: I appear for the respondents, your Honours. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, Mr Dhanji.

MR DHANJI: Thank you, your Honours. Your Honours, the applicant requires an extension of time.

BELL J: Is that opposed?

MR PICKERING: No, your Honour.

BELL J: Yes, very well.

MR DHANJI: Thank you, your Honour. Your Honours, if I could begin by taking your Honours to the application book at page 114, a decision of the Court of Criminal Appeal, and in particular to paragraph 46. These are the reasons given by her Honour Justice Adamson, with whom the Chief Judge at Common Law, Justice Hoeben, and Justice Bellew agreed. What her Honour said at paragraph 46 was this:

The assessment of objective seriousness of an offence and the weight to be given to such an assessment are pre‑eminently within the discretion of the sentencing judge –

and her Honour referred to authority of some longstanding in New South Wales in relation to that principle. Your Honours, in our submission, that statement is wrong.

BELL J: Mr Dhanji, as I understand your submissions, you take no issue with House v The King and the long line of cases that follow it.

MR DHANJI: I would not be so bold.

BELL J: We are looking at a discretionary judgment.

MR DHANJI: Yes.

BELL J: A discretionary judgment involving what sometimes is described as an instinctive synthesising of competing, often conflicting considerations resulting in a conclusion that is not the single correct sentence, but within, if you like, a range of sentences for that offender and that offence.

MR DHANJI: Yes.

BELL J: In those circumstances, if the appellate court considers that the assessment of the objective seriousness of the offence which feeds into the discretionary conclusion was one that was open, why does the appellate court trouble itself to form its own assessment? It is looking for discretionary error and it is accepted that there is a range in which one might characterise the objective seriousness of a given offence, is there not?

MR DHANJI: I understand what your Honour puts, but the answer, with respect, is this, and that is – or if I can begin by perhaps going back to House v The King, what was said in House v The King – and I appreciate this is trite for your Honours – but in the third category the question is if…

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 Stoeski v The Queen

Details

AGLC: Stoeski v The Queen [2015] HCATrans 19
Case: [2015] HCATrans 19
Decision Date

CaseChat Overview and Summary

In *Stoeski v The Queen*, the Court of Appeal of the Supreme Court of Victoria considered an appeal against a conviction for murder. The appellant, Stoeski, had been found guilty of murder by a jury and sentenced to a term of imprisonment. The appeal concerned the trial judge's directions to the jury regarding the defence of provocation.

The central legal issue before the Court of Appeal was whether the trial judge had erred in law by failing to adequately direct the jury on the subjective element of provocation, specifically concerning the appellant's state of mind and whether the provocation was such as to cause an ordinary person to lose self-control. The appeal also raised questions about the proper application of the High Court's decision in *Osland v The Queen* to the facts of the case.

The Court of Appeal analysed the evidence presented at trial and the judge's summing up. It concluded that the trial judge's directions on provocation were insufficient, particularly in relation to the subjective test. The Court found that the jury may not have fully understood that they were required to consider whether the appellant, in his particular circumstances, had lost self-control as a result of the provocation, rather than simply whether an ordinary person would have done so. The Court applied the principles established in *Osland* regarding the interplay between the objective and subjective elements of provocation.

Consequently, the Court of Appeal allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders