R v Arico

[2000] VSC 237

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1538 of 1999

THE QUEEN

v.

DOMENICO ARICO

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	30 MAY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 237

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CATCHWORDS:     Criminal Law – Murder – Provocation – Factors relevant to loss of self-control – Inferences from failure to call witness.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. B. Kayser	Office of Public Prosecutions
For the Accused	Mr. C. Francis Q.C. and Mr. I. Crisp	Acquaro & Co.

HIS HONOUR:

1. The legal matters requiring clarification at this stage involve, firstly, whether provocation should be left to the jury in this case. Both the Crown and the defence agree that it should be left to the jury, and I intend to so leave it.

1. The next matter which is the subject of agreement is the right of the defence to comment upon the failure of the Crown to call the witness, Guy Arico. Not only may the defence make that comment, but I will instruct the jury in classic and traditional terms in relation to it.   However such an instruction will not go as far as Mr Francis submits, namely, that the jury can be less confident of the evidence of Rocco Arico. Rather it would enable a jury to place greater weight on the evidence of Domenico Arico that no threats to kill his wife were uttered by him.

1. The next issue relates to the use which may be made by the jury of the evidence of the slashing of the back and buttocks of the deceased.  It is submitted by Mr Francis that, even if the jury concluded that there was some measure of self‑control at that time, that could not be used to throw light on the accused's state of mind at the time the fatal wounds to the neck and abdomen were inflicted. Further submissions flowed from that, but in essence they all concerned the evidence that could be used by the jury in determining the issue of loss of self‑control.

1. There are a number of factors that a jury can look at in determining this question. In what might be regarded as a somewhat analogous situation, in the case of Meyers v. The Queen, (1997), 71 ALJR 1488, the High Court in effect said that the jury was not limited to an examination of the fatal acts themselves in determining the intention of an accused at the time the fatal wounds were inflicted, albeit that the person had to have the relevant murderous intent at the time the fatal wounds were inflicted.

1. Similarly, in the present situation, a jury, in determining the question of loss of self‑control, is not limited solely to the time of the infliction of the fatal wounds, it can look at all the circumstances surrounding the infliction of all of the injuries upon the deceased. It would be a too narrow and artificial distinction to exclude those matters. In determining the issue of loss of self‑control, there are many factors which a jury might want to take into account, including the conduct of an accused prior to the infliction of any wounds at all, to give an example, or, alternatively, the conduct of an accused person immediately after the infliction of fatal wounds. So, in essence, the jury consideration cannot be limited in the way Mr Francis seeks to limit it.

1. I should also perhaps add some of the circumstances that have been adverted to by Mr Kayser, including the circumstances of the visit to 6 Knight Street, the leaving of the lunch bag at the corner of the lane prior to the taking of the knife across the road and, indeed, the preceding note and the subsequent conversations with Rocco Arico, all of which are'suggestive, on one view, of a murder/suicide being Within the contemplation of this accused man.

1. The remaining issue relates to the point of time at which the biting of the finger occurred.  It was submitted that a jury could not reach the view that it happened during the struggle because this would be mere speculation.  However, in my view the jury is not obliged to accept the account of the accused as to when the bite was inflicted and when the knife was first used.  As with the matter of self-control, the jury is entitled to draw inferences from the surrounding circumstances, including the non-violent propensity of the deceased, and the other factors to which I have already adverted.  So, again, I do not think the Crown is limited in the way that Mr Francis submits.

1. That does not prevent arguments being put to the jury in relation to these matters, because they are ultimately jury questions, but the limitations on the ambit of the jury's deliberations that it has been submitted should apply, cannot be sustained.

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