OBLACH v REGINA [2005] NSWCCA 440

Reported Decision : 158 A Crim R 586 65 NSWLR 75

New South Wales Court of Criminal Appeal

OBLACH v REGINA [2005] NSWCCA 440 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 November 2005

JUDGMENT DATE: 15 December 2005

JUDGMENT OF: Spigelman CJ at 1; Sully J at 72; Hulme J at 84.

DECISION: 1 Appeal against conviction dismissed; 2 Appeal against sentence allowed; 3 Sentence imposed by Ainsley-Wallace DCJ on 17 December 2004 quashed; 4 Remit the proceedings to the District Court for further consideration on sentence.

CATCHWORDS: CRIMINAL LAW – Appeal – Conviction – Duress – Proper interpretation of s10.2 Commonwealth Criminal Code – meaning of "reasonably believes" – Whether trial judge erred by directing jury to have regard to objective belief of the accused – Whether proper to have regard to the circumstances as perceived by the accused - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not having regard to evidence of threats - WORDS & PHRASES – "reasonably believes"

Commonwealth Criminal Code: Ch 2; ss 10.2, 10.3, 10.4 Crimes Act 1900: s418 LEGISLATION CITED: Criminal Appeal Rules: r 4 Queensland Criminal Code: s31 Western Australian Criminal Code: s31

Fingleton v The Queen (2005) 79 ALJR 1250 Masciantonio v The Queen (1995) 183 CLR 58 R v Acton [2001] QCA 155 R v Campbell [1997] QCA 127 R v Conlon (1993) 69 A Crim R 92 R v Hawes (1994) 35 NSWLR 294 CASES CITED: R v Katarzynski [2002] NSWSC 613 R v McCullough (1982) 6 A Crim R 274 R v Smith [2005] QCA 1 Stingel v The Queen (1990) 171 CLR 312 Taikato v The Queen (1996) 186 CLR 454 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (1987) 162 CLR 645