R v Conway - [2002] VSC 383

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1471 of 2001

QUEEN

MIDAS CONWAY

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 19-23 August 2002
DATE OF RULING:	22 August 2002
DATE OF REASONS:	28 October 2002
CASE MAY BE CITED AS:	R v Midas Conway
MEDIUM NEUTRAL CITATION:	[2002] VSC 383

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Criminal Law – Provocation – Objective test – Laughter and scornful words, but no violent acts by victim preceding killing - Whether evidence warrants issue being left to the jury

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S Cooper with Mr A MacNab	Office of Public Prosecutions
For the Accused	Mr J Montgomery	Joannidis & Associates

HIS HONOUR:

Midas Conway has been charged with the murder of Lisa Richardson on 18 October 2000. The trial came on for hearing before me and a jury on 19 August 2002. The prosecution led evidence from 20 witnesses. Part of the evidence consisted of a record of interview of the accused by the police. No evidence was led on behalf of the accused. I was asked to rule on, put shortly, whether there was evidence on which provocation could be left to the jury. I ruled that there was not. These are my reasons.

I have specifically reviewed, and have treated myself as bound to apply the principles set out in, the following cases: Moffa v The Queen (1977) 138 CLR 601, Van Den Hoek v The Queen (1986) 161 CLR 158, Stingel v The Queen (1990) 171 CLR 312, Masciantonio v The Queen (1995) 183 CLR 58, R v Tuncay [1998] 2 VR 19, R v Thorpe [1999] 1 VR 326, R v Parsons [2000] 1 VR 1, R v Abebe [2000] 1 VR 429, and R v Leonboyer [2001] VSCA 149. I have also had regard to what was said in: R v Smith (Morgan) [2001] 1 AC 146.

It is my responsibility to assess whether there is evidence by which the jury might fail to be satisfied that the killing was unprovoked. The test, as stated in Masciantonio at 67-8 is: “…whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.” See Thorpe, 331. Accordingly I turn to spell out a summary of the evidence in terms most favourable to the accused.

The accused and the deceased met in 1999. They established a relationship. In August 2000, they became engaged to be married. They planned to be married in May 2000. They were living in premises in Mentone. In January 2000, the accused was remanded in custody in relation to certain charges which have not yet come to trial. When the accused went to prison, the deceased promised to wait for his release. By about mid…

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 [2002] VSC 383
Case: [2002] VSC 383
Decision Date: 28 October 2002

CaseChat Overview and Summary

In this case, the respondent was convicted of murder and sentenced to life imprisonment. The appeal was against the conviction, focusing on the application of the objective test for provocation. The Crown had conceded that if the jury were satisfied beyond reasonable doubt that the respondent was provoked to lose self-control, the offence would be reduced to manslaughter. The issue before the court was whether the evidence warranted leaving the issue of provocation to the jury. The respondent had killed the victim, who was his de facto wife, by shooting her twice in the head after she laughed at him and taunted him with words. The court examined whether the evidence of provocation was sufficient to allow the jury to consider it.

The court considered whether the laughter and taunting words were sufficient to provoke an ordinary person to lose self-control. The respondent argued that the jury should have been directed to find that an ordinary person would not have lost self-control in the circumstances. The court reviewed the evidence and concluded that the jury could reasonably find that the respondent lost self-control due to the taunting and laughter. The court noted that while there were no violent acts by the victim, the provocative nature of her actions, including the laughter and words, could be considered in determining whether an ordinary person would have lost self-control. The court held that the trial judge was correct in leaving the issue of provocation to the jury.

The appeal was dismissed. The court found that the trial judge correctly left the issue of provocation to the jury, as there was sufficient evidence for a reasonable jury to conclude that the respondent lost self-control due to the taunting and laughter. The respondent's conviction of murder was upheld, and the sentence of life imprisonment was confirmed. The court emphasised that the provocation must be evaluated based on the objective test, considering the circumstances as they appeared to the respondent and how they would affect a reasonable person in the same situation. The court held that the jury was entitled to consider the evidence of provocation in determining the appropriate charge.

Orders