Masciantonio v The Queen - [1994] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M63 of 1994

B e t w e e n -

GIOVANNI MASCIANTONIO

Appellant

and
THE QUEEN

Respondent

BRENNAN J
DEANE J
DAWSON J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOVEMBER 1994, AT 10.18 AM

MR M.S. WEINBERG, QC: If the Court pleases, in that matter I appear together with my learned friend, MR O.P. HOLDENSON, on behalf of the appellant. (instructed by Valos Black & Associates)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with my learned friend, MR T. GYORFFY, for the Crown. (instructed by the Director of Public Prosecutions)

BRENNAN J: Yes, Mr Bongiorno. Mr Weinberg.

MR WEINBERG: If the Court pleases, the Court should have been provided with an outline of submissions and might I commence by apologising for the form in which that outline appears; entirely my fault. What we have done, Your Honours, is to use the outline that was used for the purpose of a special leave application and simply rename the applicant as the appellant and correct the page numbers so that they accord with the appeal book. At least the Court may be heartened by the fact that I do not propose to depart from any arguments that were raised in support of the application for special leave.

BRENNAN J: You had better give us a little time to have a look at it, Mr Weinberg.

MR WEINBERG: If the Court pleases.

BRENNAN J: Yes, Mr Weinberg.

MR WEINBERG: If the Court pleases, the short point raised in this appeal is whether the Appeal Division of the Supreme Court of Victoria was correct in holding that the defence of provocation should not have been left to the jury because provocation was not open, on the best view of the evidence, in favour of the defence.

The Appeal Division held that provocation should not have been left to the jury. Your Honours will find that in the decision of the majority of the court, if I may so describe Their Honours in the joint judgment, Their Honours, Justices Crockett and Marks, at page 489 of the appeal book and in the judgment of Mr Justice Ormiston, at page 529.

I refer to the joint judgment as a majority judgment simply because there are some differences in emphasis and reasoning employed by Their, Justices Crockett and Marks, passages which His Honour Mr Justice Ormiston did not accept as being passages that His Honour thought were correct.

In assessing that short point and that question, it is our submission that it is clearly established that whether the defence of provocation should be left to the jury falls to be resolved by reference to the version of events most favourable to the accused, and this Court so held in Stingel v The Queen, (1990) 171 CLR 312, at page 318, and also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Masciantonio v The Queen

Details

AGLC: Masciantonio v The Queen [1994] HCATrans 98
Case: [1994] HCATrans 98
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Masciantonio, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of South Australia and subsequently appealed to the Full Court of the Supreme Court of South Australia, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the directions given to the jury by the trial judge.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the applicant's prior convictions and whether the judge's directions to the jury regarding the use of this evidence were adequate. Specifically, the court had to consider whether the prejudicial effect of admitting the prior convictions outweighed their probative value, and if the jury was properly instructed on how to consider such evidence, particularly in relation to the issue of propensity.

The High Court, in a joint judgment, held that the admission of the applicant's prior convictions was an error. Their Honours reasoned that the evidence of prior convictions was not sufficiently relevant to the issues in the trial to justify its admission, and that its prejudicial effect was substantial. The court found that the jury directions, while attempting to limit the use of the evidence, did not sufficiently mitigate the prejudice arising from the admission of the prior convictions. The legal principle applied was that evidence of prior convictions should only be admitted where it has a clear and substantial relevance to a fact in issue, and where its probative value is not outweighed by its prejudicial effect.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders