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) LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70008 of 2002 FILE NUMBER(S) : LOWER COURT Studdert J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60116 of 2003 SC 70008 of 2002 MASON P HIDDEN J SMART AJ Tuesday, 21 October 2003 Gheorge CIOBAN v R Judgment 1 MASON P: The appellant was tried in the Supreme Court on an indictment charging him with the murder of Samuel Ekavati (Count 1) and with maliciously discharging a firearm with intent to do grievous bodily harm (Count 2). Both offences were alleged to have been committed within a short time of each other at Kings Cross in the early morning of 6 January 2000. The event giving rise to the second count was said to have occurred first. 2 Following a trial before Studdert J and a jury the appellant was found not guilty of murder but guilty of manslaughter on Count 1; and guilty on Count 2. Manslaughter had been left to the jury on the bases of excessive self-defence (Crimes Act 1900, s421); unlawful and dangerous act; and provocation. 3 A sentence of imprisonment for 18 months, dating from when the appellant was first taken into custody on 17 June 2002, was imposed in relation to the firearm offence. A term of eight years imprisonment to date from 17 June 2003 was imposed in relation to the manslaughter offence. In respect of that sentence there was a non-parole period of five years to date from 17 June 2003. 4 The appellant appeals against conviction on the following grounds: 1. The trial judge erred in failing properly to warn the jury regarding the hearsay evidence of Dick Andrews. 2. The verdict in respect of Count 2 is unreasonable. 5 The appellant also seeks leave to appeal against the sentence on the ground that it was manifestly excessive. Circumstances of the offences 6 What follows is an abbreviated summary of the circumstances of the two offences as recorded in Studdert J's remarks on sentence (R v Cioban [2002] NSWSC 972). 7 The deceased died in consequence of a single gunshot wound which penetrated his body in front of the rib cage and passed through the centre of his chest and through the heart wall. The shooting took place shortly before 6.00am on 6 January 2000 in Darlinghurst Road, Kings Cross. 8 Earlier that morning the appellant and a male companion had been drinking at the Hampton Court Hotel. So too had the deceased, who was one of a group of four or five Fijians. There was an altercation and the appellant and his companion were asked to leave the hotel. They did so and were followed by the deceased and his companions. 9 A fight started in the street near the corner of Bayswater Road and Darlinghurst Road. 10 Differing versions of that fight and its ultimately fatal aftermath were given by various witnesses, including three of the deceased's Fijian companions and several independent witnesses. No witnesses were called for the defence at trial. 11 The Crown case, in brief, was that some of the Fijians were punching and kicking either the appellant or his associate in the middle of the road near the intersection of Bayswater Road and Darlinghurst Road. The appellant produced a gun which he pointed at the deceased who was threatening to assault him. He shot at the deceased intending to cause him grievous bodily harm, but missed (Count 2). Then he retreated up Darlinghurst Road with the deceased chasing him. Eventually, the deceased caught up with him and they fell in the entrance area of a backpacker's hostel. They struggled and in the course of that struggle the appellant fired the fatal shot (Count 1). 12 There was an identity issue at trial as to whether the appellant was the "white man" who fired the two shots. There was plenty of evidence to indicate that he was, and this matter is not in dispute in the appeal. 13 Studdert J recognised that the manslaughter verdict could have rested on any one of the three bases upon which the jury were directed they could reach such a verdict. His Honour indicated that he was attracted to the submission that manslaughter stemmed from the Crown's failure to prove beyond reasonable doubt that the accused did not personally believe that it was necessary for him to do what he did to defend himself (cf Crimes Act, s421(2)). Studdert J said: 32. I find the following: (i) that the prisoner fired the fatal shot; (ii) that he did so deliberately. This is implicit in the jury's finding of course, but in any event the evidence persuades me beyond reasonable doubt as to the deliberate nature of the shooting. I accept that before he moved into the doorway where the fatal shot was fired the prisoner had threatened to shoot, and I accept the evidence that the witness Mr Palasovski gave about this; (iii) that in doing so he used force that involved the reckless infliction of death. I described earlier the path of the bullet through the body of the deceased and the shot must have been fired with the weapon very close to the body of the deceased; (iv) that the Crown has not proved that the prisoner did not believe it was necessary to fire the shot in self defence. 33. As to (iv), the evidence established that the prisoner was in the process of retreating before he fired the fatal shot, and the evidence of Dean Palasovski and of Christopher Allen, which I have earlier reviewed, establishes this. I accept that the prisoner had already been punched and kicked closer to the Bayswater Road intersection with Darlinghurst Road and that the deceased had been acting very aggressively towards the prisoner prior to the time that the first shot was fired, and, indeed, thereafter until the second and fatal shot was fired. I find that the deceased was the only member of the group described in evidence as the Fijians who continued to pursue the prisoner after that first shot. The evidence established that the deceased was affected by drink, and he was a taller and younger man than the prisoner. On my analysis of the evidence, the prisoner may well have perceived that he was cornered in the doorway and that he was faring badly in resisting the deceased. 34. The prisoner gave no evidence at all but, addressing the issue of self defence on the Crown case, that evidence does not satisfy me beyond reasonable doubt that the prisoner did not have the belief that what he did was necessary to defend himself. 35. It is implicit in the jury's verdict that the jury considered that the prisoner conducted himself in a manner that was not a reasonable response in the circumstances as he perceived them and I am satisfied beyond reasonable doubt in any event, on my analysis of the evidence, that this was the case. The evidence did not suggest that the deceased was armed with any kind of weapon and the manner of the shooting of the deceased at such close range was not a reasonable response in all the circumstances, even as perceived by the prisoner. 36. Because I consider that the requisite intent for the crime of murder was established, a verdict of manslaughter by unlawful and dangerous act would not be appropriate. 37. In my opinion the Crown proved beyond reasonable doubt that the accused did not shoot the deceased under provocation. I so conclude for two reasons: (a) the shot was not fired whilst the prisoner had lost his self control. Rather, it was fired after he had threatened to shoot and the deceased did not retreat; (b) the behaviour of the deceased was not such in my opinion as could have caused an ordinary person in the position of the accused to so lose his self control as to form the requisite intent for murder. 38. For the reasons and on the findings I have expressed, the prisoner is to be sentenced for the crime of manslaughter in accordance with the first of the approaches that was available to the jury for such a verdict, as identified in para 28(i) above. The Crown failed to prove that the prisoner did not believe that what he did was unnecessary in his self defence. 14 As to the second count his Honour said: 43. The verdict of the jury on the second count establishes that the jury was satisfied beyond reasonable doubt: (i) that the prisoner fired the first shot; (ii) that he did so maliciously; (iii) that he did so with intent to do grievous bodily harm; (iv) that he was not acting at the time in self defence or in defence of anyone else. 44. The most incriminating account of the circumstances of the firing of the first shot (particularly as to element (iii) above) seems to me to be found in the evidence of Mr Andrews who, of course, the jury did not have the advantage of seeing or being tested in cross examination. Be that as it may, I must give effect to the finding of the jury and the legislature has made it plain that this offence is in a category to be regarded very seriously. Section 33A(1) provides for a maximum penalty of fourteen years imprisonment for this category of offence. As with the crime of manslaughter, I approach this count on the basis that there was no pre planning, whether the prisoner had the weapon in his possession from the outset or not. I also take into account that the shot was fired after the prisoner had been kicked and punched and when he was being pursued. Fortunately, no person was injured when this shot was fired. Ground 1: Failure to give proper warning regarding the hearsay evidence of Mr Andrews Ground 2: The verdict in respect of count 2 is unreasonable 15 The grounds overlap and were considered together in submissions. Ground 1 is relied upon in respect of both convictions. 16 Leaving aside identification, the critical issue on Count 2 was whether the appellant fired the gun as a "warning shot" or with intent to hit his assailant. To find him guilty the jury had to be satisfied beyond reasonable doubt that he fired the gun "with intent to do grievous bodily harm". 17 It is convenient at this stage to look closely at the evidence on this particular issue. 18 The appellant or his associate (the evidence was conflicting on this issue) had been assaulted in the street by a number of the Fijian men. In using "assault", I am not determining the highly contested issue as to who was the aggressor and whether self-defence would have been available. What is clear is that one of the two "white men" had been punched in the street by one or more of a bigger group of larger men. 19 The deceased posed a serious threat of physical harm to the appellant. He was 18 years old, 1.8m tall and weighed 86kgs. He had a blood alcohol level of 0.237. He had earlier been abusive to strangers and had kicked a box belonging to a delivery man. One of his companions testified that he was "very vicious and very angry" (Pita Ekevati at Tr p434). He was "really aggressive" and "really pumped up" (Pita Ekevati at Tr p449). 20 The other Fijians were also a threat to the appellant, whether or not he had initiated the brawling between the two groups. At one stage after the Fijians had left the hotel they were observed by one of the Crown witnesses as "very aggressive, all of them yelling and swearing", challenging a security guard to a fight, some of them kicking cars in the street (Tr pp72, 78-9). 21 With this background, I turn to the evidence touching the appellant's intent when he fired the first shot. That evidence came from: • Dean Palasovski , who saw the man identified as the appellant walking backwards holding a gun while "the black man" walked forwards, punching. The following evidence was given: Q. What was the white man doing? A. He was kind of moving away, pointed the gun up as well, just basically, just pointing. Q. When you say he was pointing the gun up, where was he pointing it to? A. Towards the black male, I suppose, in that direction. Q. Are you able to say at what height he was pointing the gun, in terms of the black man's body. A. No. … Q. Did you hear something said between them? A. Yeah, I heard the white man say 'I'm going to shoot this', like … Mr Palasovski turned away at this point, but he heard the gun go off. He then turned back to see what had occurred and saw the two men who had been scuffling moving further away up the street. Later (Tr p424) Mr Palasvoski said that the dark-skinned man continued to fight, throwing punches even though the gun was being waved and even after the man with the gun had said "I will shoot this" . He agreed with the cross-examiner's question: "Everything you saw that night led you to the conclusion that the shot you first heard was a warning shot, is that right?". • Moses Ekevati , a cousin of the deceased and one of his companions, saw the "white guy" pull a gun from his pants and point it (Tr p349). He was standing beside the deceased. One gets the general impression that the gun was pointed towards both men, but the precise direction was not clarified in the evidence in chief. Moses Ekevati stopped after the gun had been pointed, but the deceased "continued to chase him" . In context, this was a reference to the chasing that occurred after the first shot. Moses Ekevati made no reference in his evidence in chief to the gun being fired except on the occasion of the fatal shot. In cross-examination, he agreed that a shot had been fired into the footpath as the white man was backing away from the deceased, but before the deceased went after the man with the gun. Mr Ekevati was standing about two metres away at the time when the shot was fired in the street. He agreed with the cross-examiner that he thought this was a warning shot (Tr p371). • Pita Ekevati saw the man on the footpath pointing the gun, with his arm extended just below shoulder height. The man was screaming out that he had a gun and was pointing "towards my cousins" (Tr p441). Asked what happened next, Mr Ekevati said: Well, the other person, he sort of started running down the road and then the person with the gun, he shot, pulled the trigger to the gun and then I heard the noise, but I didn't see where the bullet went. It didn't hit nobody. Mr Ekevati was asked where the gun was and he answered: It was still, he was still pointing at my cousins. In cross-examination Mr Ekevati said that when the gun was produced the man was walking backwards, but the four companions were continuing to chase him. The gun had no effect on their chase. The next thing that happened was that Mr Ekevati heard the gun shot (Tr p443). The man was still backing away after the shot (Tr p451). Later Mr Ekevati agreed that "everything [he] saw on that night told [him] that the first shot [he] heard was a warning shot". • Rachel Hampshire was walking with friends along Darlinghurst Road. She was passed by a group of five Islanders. She heard raised voices. She turned and saw that they were surrounding someone on the footpath of Darlinghurst Road. Ms Hampshire looked up and saw a man standing in front of the shops with a gun in both hands. She was about 3-4 metres away. She demonstrated what she saw, indicating that both arms were extended with both hands touching the weapon (Tr p277). Ms Hampshire was asked what happened so far as the movement of the gun was concerned after she first saw it in the extended arm position. She said: Well, when I saw the man pointing the gun at the group I turned to look at the group and that is when I heard the gun go off, the pop sound, and then I looked back towards the man with the gun and I can't really recall what he did with the gun at that point. I think he may have lowered it. I'm not sure. Ms Hampshire said that she saw the gun pointing at the Islanders and heard a pop sound. She did not recall seeing the man holding the gun in that position move before she heard the pop sound (Tr p278). It was Ms Hampshire's impression that the gun appeared to be pointed at one person in particular (Tr p279). The cross-examiner elicited from Ms Hampshire that she was tipsy at the time, but he did not challenge her on what she had observed as regards the pointing of the gun and its shooting. 22 Dick Andrews was a taxi driver who was parked on the rank in Darlinghurst Road. Mr Andrews moved to South Africa before the trial. Arrangements were made for him to be a witness at the trial, including the provision of an air ticket and a visa. He missed the Qantas flight from Johannesburg to Sydney because (through some confusion about ticketing) he was unable to board a connecting flight to Johannesburg. It had not been practical to rearrange flights for him to attend the trial. 23 The Crown Prosecutor asked that Mr Andrews' statement be read to the jury and that an associated diagram be admitted into evidence. Defence counsel indicated that he had no objection to the course proposed. He said that he did not want to ask the police officers any questions concerning the absence of the witness. The statement was then read. It had been signed on the day after the shooting. 24 The statement reads in part: 6. I was sitting in my cab (marked 1) when I noticed a fight coming around the corner from Bayswater road. Then around into Darlinghurst road. There was a white male running with a Fijian male chasing after him, about six feet apart. The white male was heading along the footpath then turned and went across the road. The white male has tripped and fallen down onto the road (marked 2). 7. The Fijian male has run up to him and started to punch him on the ground, with both hands, in the face. I also saw the Fijian male kick the white man who was on the ground. The white man was trying to get up off the ground. 8. There was another group that had come around the corner following the two fighting. There were two more Fijians and another white male. They were not fighting but I could tell they were with the two who were fighting. 9. I was watching the fight and I saw a gun thrown from the group to the white male on the ground. The gun landed on the roadway and skidded and stopped just near the feet of the white male. The white male on the ground grabbed hold of the gun, got to his feet and ran off. 10. The white male ran back in front of my cab, onto the footpath and run north on the eastern foot path. The Fijian male has continued to chase him along the footpath. The rest of the group have continued to follow the two fighting but not getting involved or fighting... 11. The Fijian guy caught the white male...and started to punch him again. This was still on the footpath and both males were standing. I saw both persons throwing punches at each other. The white male was only punching with his left hand. He was still holding the gun in his right hand. 12. The white male has then pointed the gun at the Fijian, straight into his face. The gun was very close to the Fijian's face. It was maybe twenty centimetres from his face. The gun was pointed right into the centre of his face. The white male is still trying to punch him with his left hand while he had the gun pointed at the Fijian. 13. The Fijian was still trying to punch the white man. He was also hitting the gun. It looked like he was trying to knock it away. The Fijian was also yelling at the white male: 'Shoot, shoot, if you want to shoot, shoot.' 14. The white male has then fired a shot at the Fijian. I saw the finger of the white man pull the trigger on the gun. The Fijian was still trying to knock the gun aside but he wasn't near the trigger. I heard a loud bang. I saw a flare from the barrel of the gun and some smoke. The shot missed the Fijian. I think it went past him on the Fijian's right side about head level. I did not hear the shot hit anything. 15. After he fired the gun, the white male ran off north along the footpath again. The Fijian has continued to chase the white man and caught him again just north of the hotel..." 25 The learned trial judge immediately gave the following direction: Members of the jury you have had that statement read. It forms part of the evidence that you have got to consider. What weight you give to it ultimately is a matter for you. The person who made this statement isn't here. You have heard about what happened to efforts to get him here. You haven't heard him being cross-examined and you do not have the benefit of making assessments of him. But, there it is. That is the statement he made and it is part of the evidence that you have to weigh up. 26 The addresses of counsel are part of the appeal record. 27 Much of the Crown address related to the issue of identification. 28 Towards the end of that part of the submissions, the prosecutor referred to the evidence establishing that the two shots came from the one gun. In that context, she made reference to Mr Andrews' statement. She reminded the jury that they had the difficulty of not knowing anything about Mr Andrews except what had been read out to them. She relied upon the portion of the statement referring to the fighting in the centre of the road during which a gun was slid across to the appellant from the place where "the other group then is". She submitted that the jury should infer that the gun came from the appellant's associate who was himself engaged in a struggle with the other Islanders. (Nowhere in the trial had it been suggested that the deceased or his Fijian companions had been carrying a gun.) 29 The Crown Prosecutor made no reference to Mr Andrews' statement in the context of the second count. Her submissions were very brief in that regard (Tr pp609-10). In essence, she invited the jury to infer from the fact that a shot was fired, that the shooting was intentional. 30 Mr Lucas of counsel represented the appellant at trial. He too concentrated at the outset on the issue of identification. He submitted that the jury could not be satisfied beyond reasonable doubt that the accused was the man who fired the gun. 31 Counsel then turned to the alternative case which proceeded from the contrary assumption. Early in his submissions he drew attention to the evidence suggesting that the first shot had been a "warning shot". Counsel put to the jury that a warning shot could not be a shot discharged with intention to do grievous bodily harm. 32 Defence counsel then addressed the first count in the indictment. He started with the evidence of Mr Andrews. He reminded the jury of what the judge had told them, namely that they may have regard to Mr Andrews' evidence, but that it had not been the subject of cross-examination. He added: You might have seen witnesses called who were forced to concede various matters when giving evidence so you may see the value of cross-examination in a criminal trial. 33 The Crown submission inviting the jury to conclude that the pistol had been thrown to the accused by one of his associates was described as "absolute rubbish". Ambiguities and possible ambiguities of the Andrews' statement were then raised, interspersed with reminders that they might have been clarified if there had been cross-examination. Counsel made much of the fact that Mr Andrews' absence left many questions unresolved. 34 Defence counsel also embraced part of Mr Andrews' statement (contingently upon the jury accepting that the accused was the person identified). It was submitted that, if the accused had picked up the gun (as Mr Andrews alone said) it was strange that he had not shot the deceased there and then if his purpose that night was to shoot someone. Instead, the appellant ran off (Tr pp623-4). This submission was then linked with the defence case regarding Count 1, in particular the denial of intention to kill and the raising of self-defence. 35 When the learned trial judge came to sum up on the particular facts he too focussed his early attention on the issue of identification. Studdert J then gave general directions about the matters to be proved on the first count, including those referable to the alternative verdict of manslaughter. 36 The judge then turned to the evidence of the particular witnesses in so far as they bore upon the first count. The conflicting evidence as to who was the aggressor and as to the firing of the first shot was recounted in detail. It included the evidence elicited in cross-examination to the effect that some of the Fijian witnesses thought that the first shot was a warning shot. 37 Studdert J made no reference to Mr Andrews' statement in his summing up as to the facts on the first count. His Honour concluded in the following terms (SU 53): Well, the Crown says, you will have regard to that evidence I have reviewed with you in considering the Crown's submission that what happened in this continuing skirmish was initiated by the accused so that self-defence does not arise and you will bear in mind the contrary submission by Mr Lucas to the effect that that submission of the Crown is not to be accepted because the evidence establishes the accused was anything but a willing participant in the stage affairs had reached prior to this shooting, all he was trying to do was to get away. 38 Addressing the second count, Studdert J reminded the jury that defence counsel had submitted that the Crown failed to prove beyond reasonable doubt that the first firing was done with intent to cause grievous bodily harm. There was evidence that it was a warning shot, with the weapon not having been being pointed at anybody (SU 71). That evidence was then recounted to the jury, as were the evidence and submissions in the Crown case referable to the second count. Once again no reliance was placed upon the Andrews' statement as supporting either the Crown or defence case on the second count. 39 It was clear that the summing up was coming to an end. In the absence of the jury, the Crown Prosecutor reminded Studdert J about the evidence of Mr Andrews "who I think we have all forgotten, and I failed to remember during the course of address, he says in para 13 he was saying 'if you want to shoot, shoot'. Then your Honour it is he who gives for the Crown the highest account in paragraph 14 of the first shooting" (SU 83). 40 When the jury returned his Honour referred them to portions of Mr Andrews' statement (SU 85). 41 The transcription of the first passage in the summing up is not an accurate rendition of the text of par 13 of the Andrews' statement, which had previously been read to the jury. The opening sentence of the portion apparently quoted by his Honour reads "Whilst the white male was pointing a gun at the Fijian, the man who was shot…". This, I infer, was his Honour's introduction, fairly based upon para 12 of the statement and the facts of the case. It appears that the summing up has been incorrectly transcribed in this regard. 42 What followed was an almost verbatim reading of par 13 of the statement, in the following terms: … the Fijian was … trying to punch him and was hitting the gun and the Fijian was yelling out at the man with the gun "Shoot, shoot if you want to. Shoot". 43 Studdert J then read par 14 of the statement, as follows: The white male has then fired a shot at the Fijian. I saw the finger of the white man pull the trigger on the gun. The Fijian was still trying to knock the gun aside but he wasn't near the trigger. I heard a loud bang. I saw a flash from the barrel of the gun and saw some smoke. The shot missed the Fijian. I think it went past him on the Fijian's right side about head level. I did not hear the shot hit anything. 44 The judge continued: That is relevant to the second count, that is the first shooting incident. So it is another piece of evidence, albeit unsworn and untested in cross-examination, but it is another piece of evidence which the Crown would call in aid as proving the intent and the malicious element of the offence charged in the second count. 45 No redirection was sought. 46 There was a later reminder in the summing up about the unsworn and untested nature of Mr Andrews' statement (SU 143). 47 The appellant relies upon ground 1 in respect of the challenge to both convictions. 48 He recognises that s165 of the Evidence Act was not engaged, because there was no request for the warnings and information contemplated by sub-s (2) thereof. He submits that there was nevertheless a miscarriage because of the trial judge's failure in the particular circumstances to give an appropriate warning about the difficulties with hearsay evidence. It was common ground in the appeal that the common law may enliven a duty to give directions and/or warnings such as may be "necessary to avoid the perceptible risk of miscarriage of justice arising from the circumstances of the case" (Longman v The Queen (1989) 168 CLR 79 at 86); and that in a proper case this could include a warning about hearsay. 49 Mr Andrews' statement was the highpoint of the Crown case on the second count. But it was not unequivocal on the critical issue of the shooter's intent. For one thing, Mr Andrews' evidence was that the gun was pointed into the centre of the man's face at a distance of about 20 centimetres. The Fijian was trying to punch the man with the gun and was hitting the gun. One might think that it was unlikely that the shooter would accidentally miss at this close range. 50 There were also conflicts between Mr Andrews' account and the accounts of other witnesses. • Andrews described the initial assault on a white man as involving only one Fijian male, when virtually every other witness described an attack by three or four Fijians • Andrews described a gun being thrown to the white male who was initially assaulted – no other witness saw this happen (although there was some circumstantial evidence to support it) • no witness other than Andrews saw the man with the gun punching his attacker just before the gun was discharged • Andrews' statement that he saw "the finger of the white man pull the trigger of the gun" is said to be implausible in the circumstances. 51 The appellant raises those matters as reasons for doubting Mr Andrews' account. So much may be conceded, but these were factual discrepancies which were before the jury. No special expertise was involved in addressing these issues. No miscarriage is established by the appellant pointing to the relative lack of attention given to the detailed differences at the trial as compared with the closer examination on appeal. 52 Section 165 provides a non-exhaustive list of "evidence of a kind that may be unreliable". As regards matters falling outside the list in subsection (1), the cases support the view that "unreliability" is concerned with matters within the special knowledge and experience of the court of which the jury may be unaware (R v Baartman [2000] NSWCCA 298, R v Stewart (2001) 52 NSWLR 301). 53 Hearsay evidence is such a matter. It is specially mentioned in s165(1). The Australian Law Reform Commission Report on Evidence (ALRC 26 vol 1, para 662) suggested that features of hearsay evidence that should be considered include: • that the evidence relies on compounding the perception, memory, narration skills and the sincerity of both the maker of the representation and the witness who narrates it in court, particularly where the hearsay is not first-hand or the maker has no personal knowledge; • the potential for an out-of-court statement to be susceptible to falsification, to be the product of suggestibility or to be influenced by stress; • the inability to test an out-of-court statement by cross-examination; • the lack of oath or affirmation. 54 In Mendham and Foster (1993) 71 A Crim R 382 this Court considered the warning appropriate to be given when a committal deposition of a witness unable to attend the trial is tendered under s409 of the Crimes Act 1900. Gleeson CJ (with whom Handley JA and Grove J agreed) said (at 388): The authorities make it clear that, even if Sergeant Hain's deposition had been admissible under s409, the trial judge should have given the jury an appropriate warning of the approach to be taken of that evidence. His Honour was asked to give such a warning but declined to do so. In Henriques (1991) 93 Cr App R 237 at 242 the Privy Council said: "When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott and Barns [1989] AC 1242 at 1259, (1989) 89 Cr App R 153 at 161: 'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.'" The present case involved a good example of the sort of thing to which Lord Griffiths was referring. There was a clear and important conflict between the evidence of Hain and the evidence of Eastwood, relating to the matter of Hain's notebook. This is just the sort of matter that should have been dealt with in the course of an appropriate warning. 55 Two observations are immediately pertinent in relation to Mendham and Foster. A warning was requested. And secondly, the "evidence of Eastwood, relating to the matter of Hain's notebook" to which the Chief Justice referred was of a particularly compelling kind. Hain was a police officer who had said at committal that he had made no note of an incriminating admission. Eastwood was a fellow officer who said that Hain had made such a record in Hain's notebook which he (Eastwood) had seen about a week before the trial (see at 384). 56 See also Williams v R (2000) 119 A Crim R 490 at 506. 57 In my view there was no miscarriage in the present case. No warning was sought. The jury were told by the judge three times that the statement was unsworn and untested. The statement was first-hand hearsay. Unlike Mendham and Foster, there was no pall of suspicion about the circumstances giving rise to the witness' non-attendance at trial. Mr Andrews' statement was read without objection, and I infer that this was because it assisted the defence case on the more serious charge of murder. No special expertise was involved in perceiving the points of difference between Mr Andrews' evidence and the evidence relied upon by the defence about the "warning shot". That evidence had been recounted earlier in the summing up. It was not incumbent on the judge to repeat it when, reminded by counsel of his omission to refer to the Andrews statement, he read portions of that statement to the jury. He reminded them that: … it is another piece of evidence, albeit unsworn and untested in cross-examination…. 58 I would therefore refuse leave under r4 and reject the first ground of appeal. 59 I would however uphold ground 2 and set aside the conviction on the second count, given the untested but critical material in the Andrews' statement; the body of evidence (some of it from the deceased's companions) about the shot being perceived as a warning shot; the relative unlikelihood that the appellant would have missed the deceased had he shot from the close quarters described by Mr Andrews; and the defensive behaviour of the appellant after the first shooting as he retreated from the advancing deceased. I conclude that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant shot with intent to hit the deceased. The very fact that Mr Andrews was not cross-examined means that the jury were not in a superior position to this Court, since they did not see the key witness. 60 The appellant does not submit that the verdict on the manslaughter count was unreasonable having regard to the evidence. I have already indicated that the trial judge concluded that it rested upon excessive self-defence. The conclusion that the conviction on the second count cannot be sustained does not undermine the conviction on the first count or enliven the argument that the manslaughter conviction miscarried because of the failure to give a stronger direction about Mr Andrews' evidence. I am also of the opinion that the unsupportable verdict of the jury on the second count does not undermine the conviction on the first count. 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. There was abundant evidence of the brawl taking place before the appellant ran away chased by the deceased. The jury did not, in my view, need a greater level of judicial assistance in assessing the factual controversies touching the first shooting incident. 61 Sentence As earlier mentioned, the judge found that the appellant fired the fatal shot deliberately and that he should be sentenced on the basis that the Crown failed to prove that the appellant did not believe what he did was unnecessary in his self defence. Put briefly this was a case of excessive self defence. As the judge said the appellant's response was not reasonable in the circumstances as he perceived them. The judge was influenced by the deceased not being armed and the appellant shooting the deceased at very close range. These were major factors. 62 The judge accepted that the appellant was punched and kicked by the deceased in Darlinghurst Road relatively close to the intersection with Bayswater Road, that the deceased had acted very aggressively towards the appellant prior to the first shot being fired and thereafter until the second and fatal shot was fired. The deceased alone continued to pursue the appellant as he ran away along Darlinghurst Road after the first shot. The deceased caught the appellant in front of the doorway of a backpacker hostel and engaged him. They ended up on the ground where they wrestled and fought and struggled. The deceased, who was younger and taller than the appellant, was on top of him. It was about this time that the appellant shot the deceased. Up to that point the appellant seemed to be getting the worst of the fight. 63 Until the appellant fired the gun it had been a fist and body fight. A tall young man can do a lot of damage by kicking, punching and seizing hold of an older man. He could have either killed the appellant or inflicted serious wounds upon him. The use of a gun transformed the struggle and fatally so. Even in the heat of the moment it was obvious that the use of a gun at such close quarters was very dangerous and could well result in a fatality. The appellant reasonably believed he had to act in self defence but he went much too far and well beyond the limits of legitimate self defence. 64 The judge gave detailed and careful consideration to the question of sentence. He remarked: In assessing the objective gravity of this crime of manslaughter, I accept that the prisoner is to be regarded as having believed that the shooting was necessary to defend himself, and I take into account all the events that preceded the shooting, including that the prisoner had been punched and kicked, that his threat to use the gun did not discourage the deceased and that the deceased was apparently having the better of the encounter in the doorway until the firing of the fatal shot. However, to use this weapon in the manner in which it was used was not a reasonable response even in the circumstances as the prisoner perceived them. The community cannot condone the use of guns, and there is a need to deter not only the prisoner but others from their use. 65 The judge accepted that the crime involved no pre-planning. He observed that he was "concerned to impose punishment for the use of the weapon with its consequences." The judge reminded himself that a human life had been taken and that a weapon was used to take it. 66 The appellant was born on 14 July 1962. His criminal history revealed some minor offences in the early eighties and a mid PCA in early 1991. That history was of no consequence and he should be regarded as a person of good character for sentencing purposes. There was a formidable body of evidence by way of testimonials as to his good character. 67 The judge made these important remarks as to the appellant's subjective features: The prisoner has been in a relationship with his current de facto wife for some nineteen years His de facto wife, Ms Jennifer Dunn, gave evidence of her relationship with the prisoner. There is one child of the union, Andre, who suffers from cerebral palsy. Andre was born on 17 June 1991. In addition to that disability the son has recently been diagnosed with dystonia, a rare form of muscular disorder. Ms Dunn said that the prisoner had pursued employment as a scaffolder and rigger but once it was appreciated that the son would need very extensive care, it was decided that the prisoner, whose employment was less remunerative than that of Ms Dunn, would become the full time carer and Ms Dunn would pursue remunerative employment. According to Ms Dunn, those roles were pursued until the time the prisoner went into custody following the verdict of the jury. Ms Dunn said that she will be standing by the prisoner, and I accept that this is so. I also accept the evidence of the witness to the effect that their son and the prisoner have a very close relationship and that the son is very dependent upon his father. I accept that Andre misses his father deeply. As a consequence of the prisoner's imprisonment, Ms Dunn had to give up her employment and to assume a full time role caring for her son. I have no doubt that the prisoner's imprisonment will cause financial hardship to his wife and child, as well as acute emotional distress which will, doubtless, be shared by the prisoner himself. Mr Ben Patynowski is an engineering surveyor with the Roads and Traffic Authority who has known the prisoner for twenty years, and he gave evidence concerning that association and his favourable assessment of the prisoner as a loving husband and a very effective caregiver of his son. One puzzling feature that arises from he evidence of Mr Patynowski is that according to him the prisoner has been pursuing employment at night as a bouncer, working in a club. That does not accord with the evidence of Ms Dunn. Nor does it accord with the history taken by the probation and parole officer for the report tendered to the Court s Exhibit B. The Court has not had the benefit of evidence from the prisoner. The prisoner was assessed by Ms Robilliard, psychologist, and Ms Robilliard has concluded her report with this expression of opinion: 'The client has no significant criminal history nor are there any indicators in his personal life and habits that suggest unstable, antisocial or aggressive behaviour. He appears to have a happy marriage and a very responsible attitude to his roles as partner and parent. His work history has been similarly without incident. His involvement in the offence appears therefore, to be out of character. Georghe maintains that he acted to defend himself against an aggressive attack and that he feared for his life.' Having regard to the psychological assessment, the evidence of Ms Dunn and the other evidence of good character before me, I do accept that the commission of these offences for which the prisoner is to be sentenced was out of character, although the prisoner has expressed no contrition for what happened, and has not sought to explain to the Court why he acted as he did. On my assessment of the evidence in this case, the prisoner's prospects of rehabilitation appear to be good, but the prisoner faces his first term of imprisonment and it will be for a significant period. In my opinion, he will require and benefit from the opportunity of an extended period of supervision when he is released, and I am satisfied therefore that there are special circumstances for the purposes of s.44(2) of the Crimes (Sentencing Procedure) Act, 1999. 68 The judge correctly found special circumstances and for the reasons which he gave. 69 The sentencing exercise was one of considerable difficulty bearing in mind that the appellant had to act in self defence. The appellant would have been aware that he was being attacked by a man who had had a lot to drink and exhibited much aggression. The appellant had to get away from the deceased to avoid further injury. That would have struck him as a very difficult task physically without some assistance. Hence the use of the gun. 70 The appellant had been cornered by the deceased and was being overcome. His own health and safety were endangered. He would have been very fearful of loss of life or grave injury. This was the reason he gave the Probation and Parole Officer. 71 As has been said so often, the sentences for manslaughter vary greatly because of the markedly different circumstances in which the offence is committed. Little useful guidance can be obtained from analysing sentences where the circumstances differ. The cases emphasise that the sanctity of human life is of paramount importance. Nevertheless given the circumstances of this offence, including the need for the appellant to act in self defence to extricate himself from the fearful position he was in, and his powerful subjective features, a head sentence of 8 years is manifestly excessive. The correct head sentence was one of 6 years 6 months. As earlier indicated, there were the special circumstances found by the judge. The correct non-parole period is one of 4 years. That reflects that this is the appellant's first time in custody, the good prospects of rehabilitation and his need for an extended period of supervision. Amongst other things, he will have to cope with again assisting to care for a child with significant disabilities. 72 Proceeding under the present sentencing legislation it is first determined that the non-parole period is one of 4 years being the least period which the applicant should serve in prison and that the total sentence should be one of 6 years 6 months. The same end result follows whatever approach is taken. Disposition 73 The following orders are proposed: 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. 74 HIDDEN J: I agree with Mason P. 75 SMART AJ: I agree with Mason P. ********** Last Modified: 10/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.