CIOBAN v REGINA [2003] NSWCCA 304

CIOBAN v REGINA [2003] NSWCCA 304

No miscarriage was shown from the hearsay warning because no warning was sought, the jury were repeatedly told the statement was unsworn and untested, the statement was first-hand hearsay, there was no suspicious reason for the witness' absence, and the factual discrepancies were matters the jury could assess. However, the Count 2 conviction could not stand because, given the untested critical Andrews statement, other evidence that the first shot was perceived as a warning shot, the unlikelihood of a miss from the close range described, and the appellant's retreat from the advancing deceased, it was not open to be satisfied beyond reasonable doubt that the appellant shot with intent to...

Jurisdiction
Australia
Judgment Date
21 October 2003
Procedural Posture
Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Convictions and Sentence Imposed in the Supreme Court
Outcome
Appeal upheld in part; Count 2 conviction set aside and verdict of acquittal entered; leave to appeal against sentence granted; sentence appeal allowed; appellant resentenced for manslaughter.
Legal Topics
['manslaughter' 'maliciously Discharging Firearm With Intent to Do Grievous Bodily Harm' 'hearsay Evidence' 'unsworn Statement' 'evidence Act S165 Warning' 'unreasonable Verdict' 'excessive Self Defence' 'manifestly Excessive Sentence']
['criminal Law' 'evidence' 'sentencing'] ['manslaughter' 'maliciously Discharging Firearm With Intent to Do Grievous Bodily Harm' 'hearsay Evidence' 'unsworn Statement' 'evidence Act S165 Warning' 'unreasonable Verdict' 'excessive Self Defence' 'manifestly Excessive Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentence / Appeal in the New South Wales Court of Criminal Appeal From Convictions and Sentence Imposed in the Supreme Court

Legal Issues

  1. 1 ['Whether the trial judge erred by failing properly to warn the jury about the hearsay evidence of Dick Andrews, whose statement was read at trial and who was not cross-examined.' 'Whether the verdict on Count 2, maliciously discharging a firearm with intent to do grievous bodily harm, was unreasonable.' 'Whether the sentence for manslaughter based on excessive self-defence was manifestly excessive.']

Ratio Decidendi

No miscarriage was shown from the hearsay warning because no warning was sought, the jury were repeatedly told the statement was unsworn and untested, the statement was first-hand hearsay, there was no suspicious reason for the witness' absence, and the factual discrepancies were matters the jury could assess. However, the Count 2 conviction could not stand because, given the untested critical Andrews statement, other evidence that the first shot was perceived as a warning shot, the unlikelihood of a miss from the close range described, and the appellant's retreat from the advancing deceased, it was not open to be satisfied beyond reasonable doubt that the appellant shot with intent to...

Court Disposition

Appeal upheld in part; Count 2 conviction set aside and verdict of acquittal entered; leave to appeal against sentence granted; sentence appeal allowed; appellant resentenced for manslaughter.

Orders

  • ['Appeal upheld in part' 'Set aside the conviction under s33A of the Crimes Act 1900 and in lieu thereof enter a verdict of acquittal.' 'Leave to appeal against sentence granted.' 'Appeal against sentence allowed.' 'In lieu of the sentence imposed the appellant is sentenced to imprisonment for 6 years 6 months...