R v Curzon - [2000] VSCA 128

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 108 of 1999

THE QUEEN

TRACEY JANE CURZON

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JUDGES:	PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 and 18 May 2000
DATE OF JUDGMENT:	28 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 128

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Criminal law – Murder – Provocation – Whether direction to jury adequate – Whether aide memoire provided to jury misleading – Real risk of miscarriage of justice – Conviction quashed and new trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. D. Salek Q.C. and Mr. C. Michell	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. A. Schwartz	Victoria Legal Aid

PHILLIPS, C.J.:

I have had the advantage of reading the judgment of Chernov, J.A. in draft form and I would gratefully accept his Honour’s accounts of the facts of this matter and of the events at the applicant’s trial. For the reasons given by his Honour I do not propose to address grounds 1 and 4.

It was not disputed at her trial that the applicant caused the death of the deceased. Nor, as I understand it, was it contended that the jury should not find that at material times she possessed a murderous state of mind. Through her counsel she advanced a plea of provocation, arguing that the prosecution had not proved beyond reasonable doubt that the killing was unprovoked. That was the issue about which the trial revolved. The directions of the learned judge on the topic of provocation were delivered both orally and in writing. At points during the charge, his Honour was assisted as to this topic by a question from the jury and some exceptions taken by counsel. Thereafter, an aide memoire, drawn by counsel and settled in discussion with the learned judge, was given to the jury by consent. Both counsel were very experienced. Further oral directions followed. At the end of the charge no relevant exceptions were taken. Subsequent to the applicant’s conviction for murder she lodged notice of application for leave to appeal against it. None of the grounds pleaded referred to the provocation directions. Nearly a year later, by leave of the learned Registrar, other grounds were substituted and three of these raised matters touching such directions. Upon this application it was contended that the directions were so deficient as to result in a miscarriage of justice to the applicant warranting the quashing of her conviction by this Court.

In the light of the above circumstances, this alleged result would seem an unlikely one. But the submissions of the applicant were pressed with vigour and after considering them and the response of the Crown, I have come to conclude that grounds 2 and 3 are made out. As to these, I would subscribe to the reasons advanced by Chernov, J.A.

It is proper that I state that in this exercise I have been greatly assisted by observations made at trial by the learned judge. If I…

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 Curzon

Details

AGLC: R v Curzon [2000] VSCA 128
Case: [2000] VSCA 128
Decision Date: 28 July 2000

CaseChat Overview and Summary

In the case of R v Curzon, the appellant was convicted of murder and sentenced to life imprisonment. The appeal centred on the adequacy of the direction given to the jury regarding the defence of provocation and whether the aide memoire provided to the jury was misleading, potentially resulting in a miscarriage of justice. The High Court of Australia was tasked with determining these legal issues.

The court had to assess whether the trial judge's direction to the jury was sufficient in guiding them through the complex process of evaluating the defence of provocation. Additionally, the court needed to consider whether the aide memoire provided to the jury contained any misleading information that could have influenced their decision. The crux of the appeal was whether these issues, if present, amounted to a real risk of a miscarriage of justice that warranted the quashing of the conviction and ordering of a new trial.

The court found that the trial judge's direction to the jury did not adequately address the nuances of the provocation defence, thereby failing to properly inform the jury of the legal criteria required to consider this defence. Furthermore, the aide memoire was deemed misleading as it did not accurately reflect the legal standards for provocation, potentially skewing the jury's decision-making process. Given these findings, the court concluded that there was indeed a real risk of a miscarriage of justice. Consequently, the conviction was quashed, and a new trial was ordered to ensure a fair and legally sound determination of the appellant's guilt or innocence.

No further orders were specified in the judgment.

Orders