JUDGES:	MAXWELL P, EAMES JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2007
DATE OF JUDGMENT:	17 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 95

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Criminal law – Murder – Appeal against conviction – Admissibility of “no comment” answers in record of police interview – Sufficiency of trial judge’s directions in relation to potential misuse of “no-comment” answers – Consciousness of guilt – Adequacy of directions as to consciousness of guilt – Reckless murder – Whether offence of reckless murder should have been left to the jury – Whether directions as to reckless murder erroneous – Distinction between the mental elements of unlawful and dangerous act manslaughter and reckless murder – Necessity of jury directions in relation to accused’s state of mind in accordance with Pemble (1971) 124 CLR 107 – Admissibility of psychiatric evidence – Effect of Gordon v The Queen (1982) 41 ALR 64 on the rule in Ramsay v Watson (1961) 108 CLR 642 – Admissions against interest – Admissibility of mixed statements – The rule in Queen Caroline’s Case (1820) 129 ER 976 – Effect of R v McKeown [2006] VSCA 74 on directions as to objective element of provocation – No requirement that the violent manner of the accused’s response be proportionate to the provocation – Appeal allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC with Mr L C Carter	Tony Hargreaves & Partners

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Eames JA. I agree that the application should be disposed of in the way his Honour proposes, and for the reasons which his Honour gives.

EAMES JA:

The applicant, Robert Clifford Barrett, was convicted by verdict of a jury of the murder of his de facto partner, Jennifer Lorraine Brodhurst, who was aged 29 at the time of her death.

At 2.11 am on 11 June 2003 the applicant telephoned 000 and requested an ambulance stating that a woman had stopped breathing. He told the operator that the woman had been assaulted in St Kilda “the other night” and that she had not wanted to go to hospital but had been trying to recover by herself over the past few days but had then stopped breathing. A second phone call a few minutes later was also recorded and on that occasion the applicant said that his de facto had been assaulted at St Kilda on Saturday night and had just become unconscious. An ambulance officer who attended a few minutes later found at the house not only the applicant but also his parents. When police attended the applicant was crying and he was asked by Senior Constable Holly “Did you do it?” to which he said “No”. He did…

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 Barrett

Details

AGLC: R v Barrett [2007] VSCA 95
Case: [2007] VSCA 95
Decision Date: 17 May 2007

CaseChat Overview and Summary

In the case of R v Barrett, the appellant was convicted of murder and sought to appeal the decision. The appeal focused on the admissibility of the appellant's "no comment" responses during a police interview, the sufficiency of the trial judge's directions regarding the potential misuse of such responses, and the adequacy of the directions concerning consciousness of guilt. Additionally, the appeal addressed whether the offence of reckless murder should have been left to the jury and if the trial judge's directions on the distinction between the mental elements of unlawful and dangerous act manslaughter and reckless murder were erroneous.

The court examined the issue of whether the trial judge had provided adequate directions to the jury about the potential misuse of the appellant's "no comment" responses, considering the potential implications of such responses on the accused's state of mind. The court found that the directions given by the trial judge were insufficient, as they did not adequately address the potential for the jury to misuse the "no comment" responses. Furthermore, the court considered whether the offence of reckless murder should have been left to the jury and whether the trial judge's directions on the distinction between the mental elements of unlawful and dangerous act manslaughter and reckless murder were erroneous. The court found that the trial judge's directions on these matters were inadequate, and this led to an erroneous outcome in the case.

In light of these findings, the court allowed the appeal and ordered a re-trial. The court determined that the trial judge's inadequate directions regarding the potential misuse of "no comment" responses, consciousness of guilt, and the distinction between the mental elements of unlawful and dangerous act manslaughter and reckless murder warranted a re-trial to ensure a fair trial for the appellant.

The final orders of the court were that the appeal was allowed, and a re-trial was ordered. The court's decision emphasised the importance of ensuring that trial judges provide adequate directions to the jury on all relevant matters, including the potential misuse of "no comment" responses and the distinction between different mental states required for various offences. This decision serves as a reminder to trial judges of the need to provide clear and comprehensive directions to the jury to ensure a fair trial for the accused.

Orders