DPP v Ivanovic

[2003] VSC 397

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. 10

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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 397

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CRIMINAL LAW – Murder – Judge's charge – Jury question as to element of law – Provocation.

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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. Yesterday afternoon during the continuing charge - but after I had completed my directions of law and had had provided to the jury a typed sheet setting out the elements of the crime of murder - the foreman of the jury provided to the court a note with a question.  The question is recorded in the transcript of the charge.  It was:  "Murder is committed when a person, Item 5 - without lawful excuse (not under provocation).  Could His Honour re-state why this item is not in dispute?"

1. In the charge, at Mr Richter's submission, I did not say "provocation does not arise".  I said "there is no issue in this case about element No.5".  Mr Richter was concerned that there might be some judicial imprimatur adverse to the accused if I said that provocation did not arise; and so he wanted to put on in personam basis.  Thus no doubt the question by the jury. 

1. Mr Richter's antecedent point was that I should not have mentioned 'without lawful excuse' as an element at all.  I must say that seems to me to be a fundamentally flawed proposition.  For a start, at p.59, lines 29 to 31, the learned prosecutor specifically opened that it was an element the prosecution must exclude.  At p.58 onwards, Mr Morgan-Payler in the opening dealt with the elements to be proved including that fifth element.  Second, this is trial by jury, not trial by ostrich; and any modern jury would know - or at least one of them would know so the other 11 would soon know - that provocation can be a matter relevant to murder.  Accordingly I am satisfied that the element 'without lawful excuse' should have been dealt with, which I did.  I am sorry I did not deal with it the way I had proposed to, namely from the Bench rather than as a matter not in issue between the parties.  I will now correct it by giving the jury a further brief direction on it.  I certainly shall not go on and spell out why provocation does not here arise in law because that would be harmful to the accused.  I shall keep it categorical.  That is the safest thing as a matter of fairness to the accused and is analytically correct.  It is a matter of law.