R v Conway

[2002] VSC 383

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1471 of 2001

QUEEN

v

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:

1. 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.

1. 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.

1. 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.

1. 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 2000, the accused found that the deceased had become more distant.  The number of her visits to him in prison reduced.  She told him that there was another man in her life.  He received confirmation of that from other sources.  In time, the deceased told the accused more about the other man.  She agreed she had been sleeping with the new man and staying over at his house.  The accused was unimpressed.  He became depressed.  He wanted to maintain the relationship.  He wanted to be released from custody, and applied for bail.  Shortly before the accused was released on bail on 9 October 2000, the deceased told him that she would not have him at the Mentone premises.  She returned his engagement ring and other belongings.  When the accused got out of prison, he went to live at his mother’s home in Clayton.  On 11 October 2000 the accused visited the Mentone premises.  The deceased was not home.  He spoke with the two women who were sharing the premises with the deceased.  Through them, he arranged to meet the deceased the next day.  On 12 October, the accused met and talked with the deceased at a jeans shop near the Mentone premises.  The deceased had an interest in, and worked at times at, the jeans shop. At that meeting, on the version of events later given by the accused to the police, the deceased spoke in a way that gave the accused hope of a future relationship with her.  After that meeting, the level of the accused’s depression was still very apparent.  In the next week he was seen by a doctor three times relative to his depression.

1. On 18 October, another appointment was made for the accused to meet with the deceased.  On the version of events later given by the accused to the police: the accused went to speak with the deceased, wanting to know if there was some hope of re-establishing the relationship; his plan was that, if there was no hope, he would stab himself; he took a knife from the kitchen drawer at home; he put the knife down the front of his pants; he talked at the shop with the deceased; he asked her why she had not kept the promises she had made to him; he asked her if there was any hope of re-establishing the relationship; she said there was no hope, and that she had made up her mind; he said to her that he wanted to kill himself; he took out the knife, and tried to stab himself, but did not succeed; she laughed in his face; she said to him: “If you want to kill yourself, what do I care?”; he then stabbed her many times.

1. I am required to consider whether the facts revealed by the evidence are such as, in Masciantonio terms:

“…could  have led an ordinary person to have lost self-control to the extent that the applicant did, inasmuch as the alleged provocative act ‘measured in gravity by reference to the person situation of the accused’, could not 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’.”

1. A review of  the cases reveals the importance of noting the policy considerations underlying the defence of provocation, as well as the importance of comparing the background to, as well as the events immediately preceding, the killing in any particular case.  That background includes the relevant characteristics of the accused.  A comparison of background and events is not done simply to determine which side of a bright line they might be seen to fall.  Some additional guidance comes from what was said in Parsons at para 15 by Brooking JA to the effect that there is an assessment of whether the reaction of the accused to the conduct of the victim fell above or below the minimum limits of the range of powers of self-control that must be attributed to the ordinary person. The test is much more likely to be satisfied where there are (as there are not in the instant case) violent acts on the part of the victim, beyond laughter and words of a scornful, derisive or taunting kind (as is the position in the instant case). Some added guidance comes from a passage noted by Charles JA in Leonboyer at para 147. Lord Hoffman in Smith (Morgan) said, at 169: “Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide…”.

1. I was well satisfied that the applicable Masciantonio test was not met by the evidence in this case most favourable to the accused, and accordingly that provocation should not be left to the jury.