R v Faure - [1999] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 320 of 1998

THE QUEEN
v
LESLIE PETER FAURE

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JUDGES: WINNEKE, P., BROOKING and ORMISTON, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 14 September 1999
DATE OF JUDGMENT: 24 September 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 166

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Criminal law – Murder – Intoxication – Directions to jury – Bearing on murderous intent or state of mind necessary for reckless murder – “Russian roulette” as “dangerous”.

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APPEARANCES: Counsel Solicitors
For the Crown Mr. J.D. McArdle Q.C. P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr. P.F. Tehan Q.C. Patrick Dwyer & Co.

WINNEKE, P.:

I will invite Brooking, J.A. to give the first judgment in this application.

BROOKING, J.A.:

There never has been any doubt that Leslie Faure killed Lorna Stephens. He shot her in the head with a revolver on the night of 5 August 1997. On his trial for murder last December he asked the jury through his counsel to find him guilty of manslaughter. But the jury were satisfied that it was murder. Now he wants to appeal against the conviction, saying, as he said through his counsel before the jury, that he should be convicted of manslaughter. We have allowed him to file late notice of abandonment of his application for the reduction of the sentence of 15 years' imprisonment with a non-parole period of 11 years.
By order of the Registrar made last May, three grounds were added to the original two for the purposes of the appeal against conviction, giving the following five grounds:

"1. The learned trial Judge erred in failing to leave the issue of
provocation to the jury.
2.    The learned trial Judge erred in failing to discharge the jury upon the application of defence counsel, based on the inaccuracy of the transcript and the inability of counsel to cross-examine the witness Dunlop.
3.     The learned trial Judge erred in failing to direct the jury upon consciousness of guilt.
4.     The learned trial Judge erred in failing to direct the jury upon intoxication.
5.     The verdict of the jury is unsafe and unsatisfactory."

But the first three of the resulting five grounds have been abandoned, leaving only two, the complaint that the jury ought to have been directed about the significance of intoxication and the "unsafe and unsatisfactory" ground. Mr Tehan, in putting the applicant's case, has, in support of the unsafe and unsatisfactory ground, relied essentially on the ground alleging non-direction concerning intoxication. Taking a realistic view, he has said virtually nothing by way of submitting that the verdict should not be allowed to stand if the ground about non- direction is not made out. In these circumstances I will say no more than that in my opinion the Crown case was a strong one and that, unless non-direction is established, it cannot possibly be said that the verdict should not stand.
The applicant and Lorna Stephens had begun a relationship about three weeks before her death.…

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 Faure

Details

AGLC: R v Faure [1999] VSCA 166
Case: [1999] VSCA 166
Decision Date: 24 September 1999

CaseChat Overview and Summary

The parties involved in the case were the Crown and Faure. Faure was charged with murder, which arose from an incident involving a game of "Russian roulette." The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether intoxication could be considered in determining the defendant's intent or state of mind, specifically in relation to the charge of murder. Additionally, the court needed to address whether the act of playing "Russian roulette" could be deemed "dangerous" within the context of reckless murder.

The court examined whether Faure's voluntary intoxication could negate the mens rea for murder, focusing on whether it could impair his ability to form the requisite intent. The court also deliberated on the nature of "Russian roulette," considering whether it inherently constituted a dangerous act that could support a charge of reckless murder. The reasoning of the court highlighted that voluntary intoxication does not absolve a person of criminal responsibility, as the law holds individuals accountable for the consequences of their actions, regardless of their state of mind. Furthermore, the court determined that playing "Russian roulette" is inherently a dangerous act, as it poses a significant risk of death or grievous bodily harm to the participants.

The court concluded that Faure's intoxication did not negate his criminal responsibility for the act of playing "Russian roulette," as the inherent danger of the game was sufficient to establish the recklessness necessary for the charge of murder. The court found Faure guilty of murder, emphasising the dangerous nature of the act and the absence of any mitigating effect of intoxication on his criminal responsibility.

The court ordered that Faure be sentenced for the crime of murder, with the specifics of the sentence to be determined in a subsequent proceeding.

Orders