DPP v Ivanovic Summary

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

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:

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?"

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.

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.

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Ivanovic, the High Court of Australia was called upon to consider a murder conviction and the manner in which the trial judge had directed the jury on the question of provocation. The appellant, Ivanovic, was convicted of murdering his partner after a violent altercation. During the trial, the appellant claimed that he acted in response to provocation. The trial judge subsequently instructed the jury on the legal principles of provocation, and the jury was left to determine whether the appellant's actions were a reasonable response to the circumstances as they existed in the appellant's mind.

The central legal issues before the court were whether the trial judge's direction to the jury regarding provocation was adequate and whether the failure to properly instruct the jury on this aspect of the defence amounted to a miscarriage of justice. Specifically, the court needed to determine if the judge's charge correctly reflected the legal principles of provocation, and if the omission or misdirection in this regard could have influenced the jury's decision.

The court held that the trial judge's direction on the legal concept of provocation was insufficient. The judge did not adequately explain that the jury must consider the circumstances as they appeared to the appellant at the time of the incident, and the court determined that this misdirection potentially led to an unsafe and unfair verdict. Consequently, the court quashed the conviction and ordered a retrial, emphasising the necessity for precise and comprehensive jury instructions on legal defences such as provocation.

The High Court ordered that the conviction be quashed and that a new trial be held, ensuring that the jury is properly directed on the matter of provocation in accordance with established legal principles. This ruling underscores the importance of accurate and complete jury instructions in criminal trials, particularly in cases where the defence of provocation is raised.

DPP v Ivanovic

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established