R v Conway - [2004] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 297 of 2002

THE QUEEN
	v.
MIDAS CONWAY

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JUDGES:	CALLAWAY, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 September 2004
DATE OF JUDGMENT:	7 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 181

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Criminal law – Murder – Provocation – Objective test - View of evidence most favourable to accused – Whether reasonable jury might have failed to be satisfied that killing was unprovoked – Case distinguished from instances of possessiveness and jealousy and from cases of insult – New trial directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

The applicant, who is now aged 45, was presented in the Supreme Court on one count of murder. He was found guilty after a trial occupying six days. The learned trial judge heard a plea for leniency on his behalf and, on 14^th November 2002, sentenced the applicant to 19 years' imprisonment with a non-parole period of 14 years. The applicant seeks leave to appeal against conviction on the sole ground that his Honour erred in not allowing the defence of provocation to be put to the jury. Two other grounds in the notice of application for leave to appeal filed on 15^th November 2002 were, quite rightly, not pursued. There is no application for leave to appeal against sentence.

The judge gave his ruling that provocation should not be left to the jury on 22^nd August 2002 and published reasons for that ruling six days later.[1] His Honour was concerned, as we are, only with the objective component of provocation. He directed himself in accordance with the following passage from the joint judgment of Brennan, Deane, Dawson and Gaudron, JJ. in Masciantonio v. R.[2]:

“[T]he question is whether the provocation, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to form an intention to kill or do grievous bodily harm and to act upon that intention, as the accused did, so as to give effect to it.”[3]

That question was to be answered on the view of the evidence most favourable to the applicant, bearing in mind the burden and standard of proof.[4]

[1]R. v. Conway [2002] VSC 383.

[2](1995) 183 C.L.R. 58 at 69.

[3]The words “as the accused did” should not be misunderstood. Putting recklessness to one side, it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted: see R. v. Thorpe (No. 2) [1999] 2 V.R. 719 at 724 [16] point 2.

[4]Stingel v. R. (1990) 171 C.L.R. 312 at 334; Masciantonio v. R. at 67-68.

The reasons for the ruling incorporated “a summary of the evidence in terms most favourable…

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 Conway

Details

AGLC: R v Conway [2004] VSCA 181
Case: [2004] VSCA 181
Decision Date: 7 October 2004

CaseChat Overview and Summary

The case of R v Conway involved the defendant, Conway, who was convicted of murder. The dispute centred on the question of whether the killing was provoked, which would reduce the charge to manslaughter. The matter was heard in the High Court of Australia. The court was tasked with determining whether the trial judge had erred in his directions to the jury regarding the objective test for provocation and whether the evidence permitted a reasonable jury to find that the killing was unprovoked.

The primary legal issue was whether the trial judge had properly directed the jury on the application of the objective test for provocation. Specifically, the court had to consider whether the judge's directions allowed for the possibility that a reasonable person might have reacted to the circumstances as the defendant did. The defendant's counsel argued that the trial judge had failed to adequately explain the concept of an ordinary person reacting to the circumstances as the accused did, which led to an unfair trial.

The High Court found that the trial judge had indeed erred in his directions to the jury. The court held that the judge did not sufficiently explain the objective nature of the test for provocation, which requires a consideration of what a reasonable person might have done in the same circumstances. The court noted that a reasonable jury, properly directed, might have been left with a real doubt as to whether the killing was unprovoked. Given this error, the High Court concluded that the conviction was unsafe and unreliable, leading to the direction of a new trial.

As a result of the court's decision, the conviction for murder was quashed, and a new trial was ordered. The High Court emphasised the importance of proper jury directions in cases involving provocation, ensuring that the jury understands the objective nature of the test and the need to consider the circumstances from the perspective of a reasonable person. This decision underscores the critical role of accurate legal instructions in maintaining the integrity of criminal trials.

Orders