DPP v Ivanovic

[2003] VSC 398

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS IVANOVIC

Ruling No. 11

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2003
DATE OF RULING:	24 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 398

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CRIMINAL LAW AND PROCEDURE – Murder – Application by defence counsel for discharge of jury without verdict because Judge's charge said to be unfair or unbalanced – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

1. I have an application before me to discharge the jury without verdict.  The application is wholly unmeritorious and I refuse it.  I will not rehearse the charge; the charge speaks for itself.  Mr Richter went through some (but not all) of the charge - the parts that were suitable to his submission - and sought to propound that it was unbalanced.  The dichotomy that Mr Richter spoke of was part of an holistic direction to the jury as to the nature, law, and parameters of self defence.  The jury was told time and again to look at the whole of the circumstances and that they were the judges of the existence and significance of the circumstances and that I was not. 

1. I did think, having looked at the charge overnight, that there could possibly be some merit in what Mr Richter said as to what appears in the transcript at 480 lines 4-9, that is to say on the question of proportionality.  That was preceded by the (oft stated) direction (p.480 l. 1-2) that the jury look at "not just the degree of force used, but the whole of the circumstances".  But lest there were any scintilla of a chance that the jury misunderstood it, I gave the jury a further direction this morning, which appears at p.607 line 30 to line 12. 

1. Mr Richter says I should have said to the jury in terms "I was wrong".  Today I read to the jury the part that Mr Richter was concerned about, namely p. 480 lines 4 to 9, and I then said (p.608 l.6): "It is not a case, ladies and gentlemen, of game, set and match - that if you find the proportion excessive, that is the end of the case.  You look at all of the circumstances.  Proportion plainly is one; you decide how important that is; but you look at all the circumstances, not just proportionality or the degree of force used".  There could not be a clearer correction. 

1. Mr Richter's submission as to the fatal shot, in my view is unmeritorious, and doubly so in view of Mr Richter's recalcitrance in cross-examination of the leading pathology expert in Victoria. 

1. As to the asserted lack of balance, in my view on the contrary, I have in the charge and indeed throughout the trial, been at pains to ensure that the accused does not suffer prejudice by some side wind of criminality as to the source of his fear.  I have made no adverse comment about the defence.  The only comments I have made have been favourable to the defence.  Adverse comment as to the extent of factual assertion by Mr Richter from the Bar table about the accused's state of mind and of belief would have been wholly justified but I refrained from such comment.  I briefly reviewed the range of circumstances the jury might look to, at all times emphasising to the jury that the circumstances and their significance were classically their province and theirs alone.  The fact that the killing was in broad daylight on a quiet suburban street is the evidence. 

1. I consider the charge has been fair, not unfair.  I consider that there is no high degree of need here arising, or any need arising, to discharge the jury.

1. I refuse the application to discharge the jury without verdict.