DPP v Ivanovic

[2003] VSC 395

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. 8

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2003
DATE OF RULING:	22 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 395

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CRIMINAL LAW – Murder – Provocation not arising.

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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 think counsel is entitled to know in advance of final addresses whether provocation is open in law.  In my view demonstrably it is not.  I consider this case falls far short of evidence sufficient to go to the jury of provocation, either on the subjective test or the quasi-objective test.  There is nothing in the admissible evidence before the jury to support or raise the proposition that the accused lost his self-control.  The evidence tends to the opposite:  the conduct of the accused before the shooting (when he walked confidently and directly up to the deceased);  the calm and deliberate conduct of the accused (including picking up an object from the roadway) immediately after the shooting;  the accused's measured driving after the shooting (reversing from the scene and then forward on to his property);  and his statements to persons after the shooting.  Further, there is nothing to support or raise the quasi objective second leg of provocation.  By "nothing to support or raise" I mean nothing by direct evidence or proper implication, bearing in mind that the criterion is the most favourable view of the evidence to the accused and that the burden of proof upon the prosecution.  The accused legitimately exercised his right of silence to interviewing police.  He legitimately  remained mute in this trial. There is nothing, directly or by proper inference, which would raise the second leg of provocation, namely that an ordinary person in the situation of the accused might have lost self-control and acted in the manner the accused did.

1. In so concluding I act in accordance with established principle including (per Brooking J.A. in R v Parsons[1]) that "Provocation should be withdrawn from the jury where no reasonable jury, properly instructed and having regard to the version of events most favourable to the accused which is suggested by material in the evidence, could have failed to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense."

   [1]2000 VSCA 15 at [11].

1. I so find.

1. In the s.13 response by learned senior counsel for the accused, there was much extrapolation (without, in the event, evidence from the accused) of what the accused thought or felt.  Nowhere was there mentioned loss of self control or the second leg of provocation.

1. In my view, the facts in this case fall far short of the criteria laid down in R v. Parsons and the cases therein cited.

1. Accordingly, I rule that provocation does not arise in this case.