R v Abebe - [2000] VSCA 148

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 119 of 1999

THE QUEEN

TEKLEMARIAM ABEBE

No. 147 of 1999

DIRECTOR OF PUBLIC PROSECUTIONS

TEKLEMARIAM ABEBE

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JUDGES:	CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2000
DATE OF JUDGMENT: DATE OF REASONS FOR JUDGMENT	26 April 2000 18 August 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 148

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Criminal law – Murder – Provocation – Wrongful act or insult such as to deprive ordinary person of self-control – Role of ordinary person test – Accused an Ethiopian - Personal characteristics including ethnicity relevant to objective, as well as subjective, test – Choice between "could" or "might" and "would" – Whether issue of provocation open on evidence – Acts of provocation by person other than victim – Mistaken belief that victim has provided provocation - Crimes Act 1958 s.568(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant/Respondent	Mrs J.G. Morrish, Q.C.	G.R. Bryant & Assoc.

CHARLES, J. A.:

The applicant, who was born on 18 September 1950, pleaded not guilty in the Supreme Court on 3 May 1999 to a presentment alleging attempted murder (count 1), intentionally causing serious injury to Gidey Hadgu (count 2), that he murdered Kassa Webet Wube (count 3) and theft of a motor vehicle belonging to Yalma Bekele (count 4). After a trial lasting some 10 days, the jury on 14 May returned verdicts of not guilty to counts 1 and 2, but guilty on counts 3 and 4.

A plea was heard on 24 May, and on 1 June the judge sentenced the applicant to 12 years' imprisonment on the count of murder, and seven days on the count of theft. The total effective sentence was 12 years' imprisonment and a non-parole period of nine-and-a-half years was fixed.

The applicant now seeks leave to appeal against conviction on the grounds that the trial judge erred in that he misdirected the jury –

(1) in relation to provocation;
(2) in relation to the "ordinary man test" after the jury asked a question.

There is also before this Court an appeal by the Director of Public Prosecutions under s.567A of the Crimes Act 1958 claiming that the sentence imposed in respect of count 3 is manifestly inadequate.

On 26 April 2000 this Court allowed the applicant's appeal, quashed the conviction for murder and ordered that a new trial be had on this charge. It was therefore unnecessary to consider the Crown's appeal against sentence under s.567A. The following are my reasons for joining in the making of these orders.

The Crown case was as follows. The applicant, who was born in Ethiopia, migrated to Australia from Canada in 1993, having lived there for some four years, and previously in Japan for 14 years. In Australia he met Gidey Hadgu, who had been born in Eritrea and had migrated to Australia in 1990 with her son,…

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 R v Abebe

Details

AGLC: R. v. Abebe [2000] VSCA 148
Case: [2000] VSCA 148
Decision Date: 18 August 2000

CaseChat Overview and Summary

In the matter of the Crown versus Abebe, the defendant was charged with the murder of an individual. The case was heard in the County Court of Victoria. The defendant raised the defence of provocation, claiming that he had lost self-control due to the actions of the deceased. The central legal issue in the case was whether the defendant's actions were provoked by the deceased or another individual, and if the defendant's self-control was indeed deprived by the provocation.

The court examined the relevant statutory provision, Crimes Act 1958 s.568(1), which outlines the criteria for establishing the defence of provocation. The court held that in assessing whether an ordinary person would have lost self-control, the personal characteristics of the defendant, including their ethnicity, could be relevant. The court considered the subjective and objective aspects of the ordinary person test, determining whether the defendant could or might have lost self-control, and whether an ordinary person would have done so under the same circumstances.

In reaching its decision, the court found that the evidence did not support the claim that the defendant was provoked by the deceased. Instead, the defendant was provoked by another individual, and the defendant held a mistaken belief that the deceased had provided the provocation. Consequently, the defence of provocation was not applicable to the defendant's actions. The court found the defendant guilty of murder and sentenced him to a term of imprisonment.

The court did not make any specific orders beyond the conviction and sentencing of the defendant. The case serves as a reminder of the importance of carefully considering the evidence and the applicable legal principles when evaluating the defence of provocation in criminal cases.

Orders