CIOBAN v REGINA [2003] NSWCCA 304

Reported Decision : 139 A Crim R 265

New South Wales Court of Criminal Appeal

CITATION : CIOBAN v REGINA [2003] NSWCCA 304 HEARING DATE(S) : 25 August 2003 JUDGMENT DATE : 21 October 2003

JUDGMENT OF : Mason P at 1; Hidden J at 74; Smart AJ at 75 DECISION : 1. Appeal upheld in part; 2. Set aside the conviction under s33A of the Crimes Act 1900 and in lieu thereof enter a verdict of acquittal.; 3. Leave to appeal against sentence granted.; 4. Appeal against sentence allowed.; 5. In lieu of the sentence imposed the appellant is sentenced to imprisonment for 6 years 6 months starting on 17 June 2002 and ending on 16 December 2008 with a non-parole period of 4 years starting on 17 June 2002 and ending on 16 June 2006. The first date on which the appellant is eligible for release on parole is 17 June 2006.

CATCHWORDS : Criminal law - appeal against convictions - manslaughter - maliciously discharging firearm with intent to do grievous bodily harm - hearsay evidence - unsworn statement - where deponent did not attend trial - whether warning to jury ought to have been given - where no warning sought - Evidence Act s165 - unreasonable verdict - where jury did not see key witness - Sentencing - excessive self defence - whether sentence manifestly excessive LEGISLATION CITED : Crimes Act 1900 Longman v The Queen (1989) 168 CLR 79 Mendham and Foster (1993) 71 A Crim R 382 CASES CITED : 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 PARTIES : Gheorge CIOBAN (Appellant) REGINA (Respondent) FILE NUMBER(S) : CCA 60116 of 2003 COUNSEL : S J Odgers SC (Appellant) P W Miller (Respondent) SOLICITORS : The Law Practice (Appellant) Director of Public Prosecutions (NSW) (Respondent)