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Court of Criminal Appeal 21 October 2003

CIOBAN v REGINA

[2003] NSWCCA 304

Also reported as (2003) 139 A Crim R 265
HomicideFirearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTIONS MANSLAUGHTER HEARSAY EVIDENCE UNSWORN STATEMENT WHERE DEPONENT DID NOT ATTEND TRIAL

Citation: Cioban v Regina [2003] NSWCCA 304
Court: New South Wales Court of Criminal Appeal
Date: 21 October 2003
Judge(s): Mason P; Hidden J; Smart AJ

Background

The appellant was tried in the Supreme Court on charges of murder and maliciously discharging a firearm with intent to cause grievous bodily harm, arising from two separate shootings in the early hours of 6 January 2000 in Kings Cross. Both incidents stemmed from a confrontation that began at a hotel and spilled into the street, where the appellant and a companion were followed and attacked by a group of men.

The jury acquitted the appellant of murder but convicted him of manslaughter and of the separate firearm offence. The trial judge left manslaughter to the jury on three alternative bases: excessive self-defence, unlawful and dangerous act, and provocation. Studdert J ultimately sentenced the appellant to eight years imprisonment for manslaughter and 18 months for the firearm offence.

The appellant challenged both the firearm conviction and the sentence. He argued that the firearm conviction was unreasonable on the evidence, and that the manslaughter sentence was manifestly excessive given the self-defence circumstances surrounding the fatal shooting.

  • Whether the trial judge erred in failing to properly warn the jury about hearsay evidence given by a witness (Dick Andrews) who did not attend trial, in accordance with section 165 of the Evidence Act 1995
  • Whether the verdict on Count 2 (maliciously discharging a firearm with intent to cause grievous bodily harm under section 33A of the Crimes Act 1900) was unreasonable in circumstances where the jury did not see the key witness
  • Whether the sentence for manslaughter was manifestly excessive, having regard to the circumstances of excessive self-defence and the appellant's personal circumstances

Decision

Hearsay warning ground: The Court addressed the argument that the trial judge should have warned the jury about the limited reliability of hearsay evidence from a witness who did not attend trial. Although no such warning had been sought at trial, the Court examined whether the absence of a direction constituted an error. The Court's analysis on this ground did not ultimately result in the manslaughter conviction being disturbed.

Unreasonable verdict on Count 2 (firearm offence): The Court upheld this ground and set aside the conviction for maliciously discharging a firearm with intent to cause grievous bodily harm. The Court found that the verdict was unreasonable in circumstances where the jury had not seen the key witness give evidence. An acquittal was entered in place of the conviction.

Manifest excess in sentence: The Court found the eight-year head sentence for manslaughter to be manifestly excessive. It accepted that the appellant had been cornered by the deceased, who was larger, younger, and affected by alcohol, and that the appellant had already been assaulted before the fatal shot was fired. The sentencing judge had found that the Crown could not prove beyond reasonable doubt that the appellant did not believe the shooting was necessary in self-defence, making this a case of excessive self-defence rather than unprovoked violence. The Court also noted the appellant's strong subjective features, including his first time in custody and good rehabilitation prospects, as well as his responsibility for assisting to care for a child with significant disabilities. The head sentence was reduced to six years and six months, with a non-parole period of four years.

Orders Made

  • Appeal upheld in part
  • Conviction under section 33A of the Crimes Act 1900 set aside; verdict of acquittal entered in its place
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • In lieu of the original sentence: imprisonment for 6 years 6 months commencing 17 June 2002 and ending 16 December 2008, with a non-parole period of 4 years commencing 17 June 2002 and ending 16 June 2006; first eligible for parole on 17 June 2006

Key Takeaways

  • A conviction for maliciously discharging a firearm with intent to cause grievous bodily harm may be set aside as unreasonable where the jury did not have the benefit of observing key witness evidence directly.
  • The Court of Criminal Appeal confirmed that an excessive self-defence manslaughter verdict, where the Crown cannot disprove the defendant's belief in the necessity of force, is a significant mitigating factor at sentencing even where the use of lethal force was not a reasonable response.
  • Sentencing for manslaughter admits of wide variation, and the circumstances in which the offence is committed, including the degree to which the offender acted in genuine (if disproportionate) self-defence, bear heavily on the appropriate head sentence.
  • Subjective features such as no prior custodial history, genuine rehabilitation prospects, and ongoing family responsibilities can support a finding of special circumstances and an extended parole period relative to the non-parole period.
  • Where no warning under section 165 of the Evidence Act 1995 was sought at trial in relation to hearsay evidence, the absence of such a direction did not, on the facts here, produce a successful appeal against the manslaughter conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), sections 33A, 421
- Evidence Act 1995 (NSW), section 165

Cases cited:
- Longman v The Queen (1989) 168 CLR 79
- Mendham and Foster (1993) 71 A Crim R 382
- R v Baartman [2000] NSWCCA 298
- R v Cioban [2002] NSWSC 972
- R v Stewart (2001) 52 NSWLR 301
- Williams v R (2000) 119 A Crim R 490