Cioban v The Queen [2004] HCATrans 551 (10 December 2004)

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Cioban v The Queen [2004] HCATrans 551 (10 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 551

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 2004

B e t w e e n -

GHEORGHI CIOBAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 12.46 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC: May it please the Court, I appear for the applicant. (instructed by Legal Aid Commission of New South Wales)

MR G.E. SMITH, SC: If it please the Court, I appear for the respondent in this matter. (instructed by Acting Solicitor for Director of Public Prosecutions (NSW))

KIRBY J: Yes, Mr Odgers.

MR ODGERS: Your Honours, the question raised by this application is the proper test to be applied by a Court of Criminal Appeal in deciding whether a verdict of guilty on one count can stand where it has concluded that a verdict of guilty on another count is unreasonable. We have been unable to find any authority on that question. We submit that the test should be whether it is reasonably possible that the jury relied upon the unreasonable finding of fact.

KIRBY J: But do you not go back to first principles that were explored in MacKenzie, I think, that if it is a principle of our legal system that counts are separate because they refer to different legal offences, they therefore have to be charged and explained and decided separately, that if that is the case and if the judge made no error in requiring that to be done, then our system works on the premise that it is a severable separate point unless there is something in the interrelation that causes one to have disquiet. I think that is essentially what was said in MacKenzie.

MR ODGERS: I accept that, your Honour, and we do not challenge that.

KIRBY J: The price of specificity is severability.

MR ODGERS: Quite, but the question is: what causes one to have disquiet and can one give more clarity to that concept of having disquiet? If a jury, as must be taken to be the case here, has made a factual error in its assessment of what happened and the factual error simply enough was whether or not the first shot was a warning shot or not, they held that it was not a warning shot, that it was a deliberate firing of the gun with an intent to shoot the deceased, the Court of Criminal Appeal has held that that was an unreasonable finding and that on any proper view of it the view should have been taken that it was a warning shot. The question then has to be asked: what significance, if any, does that have when one comes to assess the other count? Does it undermine one’s confidence in the conviction, I think to put it in the language your Honour Justice Kirby put to me.

I respectfully submit that the question should be more specific than that and it should ask: is it a reasonable possibility that the jury relied on that error of fact when it came to determine the question of manslaughter? If that is correct, then the appeal should be allowed and a new trial ordered because of that significant possibility unless the Court concludes that the proviso should be applied. It is similar, with respect, your Honours, to what this Court held in Simic, I think, where there was a misdirection by a judge as to the facts of a case. The Court held that where there is a misdirection of facts, the question is: is it reasonably possible that the jury relied on that fact when they came to decide the verdict and is it a reasonable possibility that they would have acquitted if they had not relied on it? We say that the test should be the same. It is because of the significant possibility that the jury have relied on it that there is concern about the verdict.

CALLINAN J: Sorry, Mr Odgers, I was distracted for a moment. What do you say was the distraction? Can you just identify that more clearly for me.

MR ODGERS: How the jury may have depended on this finding of fact, how the jury may have been misled.

CALLINAN J: By which finding of fact?

MR ODGERS: Your Honour, the circumstances were that – I will give you a quick rundown of the facts.

CALLINAN J: I think I know generally the facts.

MR ODGERS: There is a melee, the accused is retreating - - -

CALLINAN J: I know he is pursued and a warning shot and - - -

MR ODGERS: He is pursued, he fires one shot. No one is hit. He continues to retreat. He is holding up his hand in respect of the deceased saying, “Keep away, keep away or I’ll shoot”. He is chased, he continues to be chased, the deceased jumps on him, tackles him, they both fall to the ground in an alcove. The deceased is on top, they are struggling. During that struggle the gun discharges a second time and the deceased is shot and dies. So there are two shots.

CALLINAN J: This is a handgun, of course?

MR ODGERS: It was a handgun. There was evidence that the accused and another man were involved in a fight with five large Fijians and that - - -

CALLINAN J: I do not like handguns.

MR ODGERS: I understand that, your Honour, and I remember that very well from last week.

KIRBY J: I hope you are not going to demonstrate them. We get very nervous when - - -

MR ODGERS: No, not at all; no chance of that. Your Honours should bear in mind that the applicant was being punched and kicked and there was considerable evidence that the gun was thrown to him by the other man he was with and he picked it up and used it defensively for a considerable period of time.

CALLINAN J: Why was the other man carrying a handgun?

MR ODGERS: We do not even know who the other man was, your Honour, but the fact of the matter was that – the court accepted that the applicant was in a situation where he really was acting in self-defence in the sense that he was under attack and he really needed to do something to protect himself. Getting back to the critical issue, in respect of the first shot where no one was hit, he was charged with intentionally discharge the weapon with an intent to inflict grievous bodily harm. He was convicted of that. The defence case was that the first shot was a warning shot. The Court of Criminal Appeal held that the jury acted unreasonably in convicting him of that count. So the Court of Criminal Appeal is accepting the jury should have approached it on the basis that the first shot was a warning shot. The question is: what is the possible relevance of that to the manslaughter conviction?

KIRBY J: They really are two separate – I know, of course, you cannot snip up time and divide it and pretend that it is entirely separate, but they are two criminal offences of a different character happening at different points of time.

MR ODGERS: Yes, but closely connected in time, your Honour.

KIRBY J: Closely connected, that is true.

MR ODGERS: Can I answer what your Honour is putting to me. In this case the jury were invited by the Crown Prosecutor in his address to the jury to use the conclusion that the applicant fired the first shot with intent to do grievous bodily harm to negate any possibility that he was acting reasonably when he fired the second shot. The argument of the Crown Prosecutor was, “If he shot somebody not in self-defence, tried to shoot them at point A and then a few seconds later the gun is discharged a second time, you can conclude that he wasn’t acting in self-defence at that second occasion because he hadn’t been earlier and therefore you would convict him; you would reject self-defence”.

Equally, your Honours, there was a question mark in this case about whether or not he did have an intent to shoot on the second occasion. That was an issue that the jury had to determine. Was it a case of intentionally shooting to inflict grievous bodily harm or was it dangerous and unlawful act manslaughter? If the jury has already been satisfied that he intended to shoot somebody seconds before, it is an inevitable inference that they will conclude that he intended to shoot the deceased on the second occasion.

That is important because if on the second occasion the jury had a doubt about that, that would really raise very clearly the question of self-defence because, given the circumstances, it is hard to see how it could not have been unreasonable when he is in the corner, he is being attacked by this large man who has not been dissuaded from continuing the attack by one shot being fired and may well be trying to reach for the gun at that very moment and other Fijians are coming up behind him, to fire the gun, at least on that second occasion, at least without an intent to shoot but as another possible warning shot, even though it is dangerous.

All of this may have been going through the minds of the jury. Once they had concluded that the first shot was done with an intent to inflict grievous bodily harm, then that had enormous ramifications for how they would approach the second shot, as they were invited by the Crown Prosecutor to reason, that because of what they should find about the first shot, they could reject self-defence, they could reject any suggestion of absence of intention to shoot, and logically that must be right.

KIRBY J: What was your client doing with a firearm? Was that ever explored?

MR ODGERS: As I explained to Justice Callinan, there was considerable evidence that the other man he was with – he and another man were involved in this fight with five large Fijians in the middle of Darlinghurst Road in Kings Cross. My client was on the road being punched and kicked by one or two - - -

KIRBY J: I realise that, but why did he have a firearm in the first place?

MR ODGERS: Your Honour, as I explained to Justice Callinan, there was evidence from a witness that a gun was thrown to him by the other man. Pieces of the gun were found on the road. It was thrown to him to use in self-defence presumably and he did just that. He fired a warning shot, he retreated, he said, “Keep away, keep away, keep away”, until the other man jumped on top of him and they are struggling on the ground and the gun goes off. Witnesses say that the applicant stood up, looked shocked and left the scene rapidly. That is the answer, your Honour. I should say the sentencing judge said that there was conflicting evidence about where the gun had come from, but he referred to the evidence of a witness who said that the gun was thrown to the applicant and he referred to the evidence that pieces of a gun were found on the ground nearby.

Your Honours, I submit that there is a question of general importance, and that is: is it correct that the test should be whether there is a reasonable possibility that the jury’s verdict might have been different if they had not made the factual error? In the Court of Criminal Appeal in a very short explanation why the court considered that there was no linkage between the two counts, all that the President said at page 193 of the application book is contained in paragraph 60. In our submission, the essence of what he is saying is to be found in the third-last sentence:

The body of evidence in support of the Crown case on the first count was compelling and did not depend on the evidence supporting the second count.

We submit that that is a fundamental error of principle. The question is not whether it depended on it. The question is not whether there was other evidence from which you could conclude that he had committed manslaughter. It is not a question of whether the jury on other evidence could have found manslaughter or that it was unreasonable to find manslaughter. The question should be: is it reasonably possible that the jury relied on their earlier factual finding when they came to determine whether or not manslaughter was committed? It is not a question of whether it depends on it; it is a question of whether it might have influenced the jury in their verdict.

If it might have, how can one say confidently that it has not been undermined? How can one say that one can have confidence in the verdict? We know the jury has made a serious factual error on a related issue and related not just because they are counts in the same trial, but related in a very clearly causal way where they are invited by the Crown Prosecutor to use the factual finding on count 1 in respect of the other count.

CALLINAN J: Mr Odgers, I often think that with a judge’s decision where we have reasons that sometimes an error is quite capable of infecting the result and infecting other findings of fact. Indeed, I often think that not enough importance is attached to that, but we have reasons in that situation.

MR ODGERS: Yes, true.

CALLINAN J: You do not have them here. You have the jury, but I do not know whether that helps you, you see.

MR ODGERS: I submit it does, your Honour, because it is at least critical that a Court of Criminal Appeal approaches it with the right principle in mind. There is no authority. I know I have said this before, but I repeat it. There is no authority for what the correct principle is. Your Honour Justice Kirby says there is a cause of doubt or a lingering uncertainty, but that is not clear enough. For the Court of Criminal Appeal to say there should not be a new trial because the conviction did not depend on this reveals, in my submission, a fundamental error of approach to the question that needed to be answered. I do not know I can put it more highly than that.

If the correct principle is the one for which I have contended, that is, is there a significant possibility that the jury’s verdict depended – not depended. I am using the language of Justice Mason – but is there a significant possibility that they relied upon this unreasonable finding of guilt or this unreasonable finding of fact when they came to decide the case in circumstances where the Crown Prosecutor has invited them to do that, in circumstances where it is obvious that self-defence really had no work to do once you have already concluded that he has fired a shot not in self-defence, as the jury has found, where the jury has found that there was no warning shot when we now know there was, I ask rhetorically, your Honours, would it not be significant in assessing self-defence whether or not he had fired a warning shot before the second shot?

I would suggest, your Honours, that a jury might think it very significant in deciding whether or not, acting reasonably, he has fired a warning shot. They concluded he had not. They were wrong to so conclude. Who is to say that if they had not made that error, they might not have come to a completely different verdict on the question of manslaughter in circumstances where – I have not gone through the facts, your Honours are familiar with it, but this must have been an absolutely terrifying situation for this man. He is a 38-year-old, he is being assaulted by a much younger - - -

KIRBY J: We know the facts of the case.

MR ODGERS: I know, your Honour. I do accept that but I do stress ultimately the point is this, your Honours. This was and remained quintessentially a jury question. What was his intention at the time the second shot was fired, did he believe it was necessary to do what he did in self-defence? One infers that because they found manslaughter that they so concluded. Did he have reasonable grounds for his belief? One infers that
they thought he did not have reasonable grounds, but they did so in circumstances where they have misapprehended the factual circumstances.

I respectfully submit that it is not for appeal judges to say, “Well, we think he’s guilty of manslaughter or that it didn’t depend on that”. It should go back to a jury who do not make that factual error to determine the critical questions of reasonableness and intention, uncontaminated by a serious factual error which, in my respectful submission, must have, or at the very least was very likely to have had, an impact on their reasoning. As I say, the proper test should be not whether it must have or it was likely to but rather was there a significant possibility that it did.

There is a question of general importance which, in my submission, this case should resolve. I am not sure I can add much more than what I have said, your Honours.

KIRBY J: The Court does not need your assistance, Mr Smith. We have been assisted by your written submissions.

We are not convinced that the decision of the Court of Criminal Appeal, that the conviction of the applicant on the count of discharging a firearm with intent to do grievous bodily harm was unreasonable and should be set aside as it was, necessarily required an order for a retrial on the other count of homicide which the applicant faced. The applicant was found not guilty of murder, but guilty of manslaughter and was sentenced on that basis.

The applicant, through his counsel, said that no authority could be found on the point that he urged before this Court. Doubtless that is because the issue raised is one individual to each case and presents issues of general principle for application.

We are not convinced that the Court of Criminal Appeal erred in concluding that the conviction of the applicant on the second count could safely stand on the basis of compelling evidence. We do not think that an error has been shown, on the basis that there was a significant possibility that the jury’s decision on the second count of discharging a firearm could have influenced the jury’s conclusion on the count of homicide. The price of specificity of counts, as this Court has said on many occasions, is that severability of outcomes is a possibility: see MacKenzie v The Queen (1996) 190 CLR 348 at 367.

The applicant sought an extension of time within which to bring this application and that the requirements of Rule 69A.3(1) of the High Court Rules be dispensed with. We would give that extension of time and dispense with that sub-rule. However, we are not convinced that there has been a miscarriage of justice and, accordingly, special leave is refused.

AT 1.05 PM THE MATTER WAS CONCLUDED