Versi v The Queen - [2014] HCATrans 81

[2014] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S296 of 2013

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

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2014, AT 12.01 PM

MR D.F. JACKSON, QC: Your Honours, I appear with my learned friend, MR J.C. CONDE, for the applicant. (instructed by Nyman Gibson Stewart)

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

KIEFEL J: Yes, Mr Jackson.

MR JACKSON: Your Honours, we need an order that compliance with rule 41.02.01 be dispensed with.

KIEFEL J: Extension of time. Yes. Is there any problem?

MR PICKERING: There is no issue.

KIEFEL J: Yes, you have that order.

MR JACKSON: Your Honour, may I take a moment to deal with the basic circumstances before I go to the two matters with which I wish to address orally? The applicant was tried on four, but convicted on two, charges of sexual assault; they were called counts 2 and 3. They differed in severity. Count 2 carried a maximum penalty of two years’ imprisonment, count 3, 10 years. The nature of the case in respect of those two counts appears at page 179, and your Honours will see in paragraph 6 of our submissions in‑chief. Now, your Honours, in relation to count 2, evidence was admitted as coincidence evidence of a suggested sexual assault on another child some years before; that evidence we have summarised in paragraph 9 of the summary of argument at page 180.

KIEFEL J: This is the stepdaughter from a previous marriage?

MR JACKSON: Yes, your Honour. Your Honours, the trial judge’s ruling as to the admissibility of that evidence appears at pages 196 to 199. May I take your Honours in particular to the ultimate ruling, which is at page 199, about line 49? Your Honours will see that his Honour said, “The evidence is admissible in respect of count 2 . . . as coincidence evidence”. The directions as to its use to the jury are set out at page 180 in paragraph 10 of the written submissions where we have set them out in toto.

Now, your Honours, we have summarised – and this is the last introductory thing I wanted to say – we have summarised the points which we seek to make at page 181 in paragraphs 11 to 14 of our written submissions and, your Honours, the two matters with which I wish to deal orally are these. First, did the Court of Criminal Appeal err in holding that the evidence of SD1 ‑ that is the stepdaughter from the first marriage ‑ was properly admitted and, secondly, did the Court of Criminal Appeal err in its view that the verdicts on counts 2 and 3 were not unreasonable. There is…

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 Versi v The Queen

Details

AGLC: Versi v The Queen [2014] HCATrans 81
Case: [2014] HCATrans 81
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Mr. Versi, for the offence of assault occasioning actual bodily harm. The prosecution alleged that Mr. Versi had assaulted a police officer during an arrest. The appeal was heard by Kiefel and Keane JJ of the High Court of Australia.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of lawful justification for the use of force by the appellant in resisting arrest. Specifically, the court considered whether the jury should have been instructed that they could acquit Mr. Versi if they found that the force used by the police officer was excessive and therefore unlawful, and that Mr. Versi's actions were a reasonable response to that unlawful force.

Their Honours observed that the common law permits a person to resist an unlawful arrest, and that the degree of force that may be lawfully used in such resistance is limited to what is reasonably necessary in the circumstances. They held that where the lawfulness of an arrest is in issue, and the accused relies on the unlawleness of the arrest as a defence to a charge of assaulting an officer, the jury must be instructed on the principles governing the use of force in resisting unlawful arrest. The trial judge's directions in this instance were found to be insufficient in that regard, as they did not adequately explain to the jury the circumstances in which the use of force against a police officer could be justified.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of New South Wales for a retrial.

Orders