R v JPD

[2001] VSC 203

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1446 of 2000

THE QUEEN

v.

JPD

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	10 APRIL 2001
CASE MAY BE CITED AS:	R. v. JPD
MEDIUM NEUTRAL CITATION:	[2001] VSC 203

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CATCHWORDS:      Murder – Common design – Basis upon which jury could find the accused guilty of manslaughter – Markby v. R. (1978) 140 CLR 109.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W. Morgan-Payler QC	Office of Public Prosecutions
For the Accused	Mr. G. Thomas	Victoria Legal Aid

HIS HONOUR:

1. I have been giving a deal of thought to the question that has been discussed prior to lunch, that is, is it necessary in the circumstances of this particular case to put the issue of manslaughter before the jury and, if so, on what basis?  The Crown case is based primarily upon the contention that the accused before the court was the sole assailant upon Mrs Downing and that his various descriptions which have implicated other persons have been provided in an endeavour to avoid responsibility for his actions.  It has been argued before the jury that they should reject the reasonable possibility that any other person may have been implicated in the death of the deceased.  It was the accused, the argument continues, who initiated an attack upon Mrs Downing and it was he who stabbed her 12 times with a barbecue fork in the region of the heart occasioning her death.  However, the Crown contends, if the jury have doubt about the presence of other persons and their possible involvement in the events of that night, the accused has provided versions that on their face constitute admissions of his involvement in the murder of the deceased and demonstrate the existence of a common design which had as part of its structure the infliction of really serious injury upon an elderly person.  On this basis, the prosecution have argued, it would not matter that the accused did not foresee the employment of a barbecue fork to effect the type of injury contemplated as possible in the implementation of that design or as having been agreed by the participants in it.

1. Relying on some statements made by Gibbs ACJ in Markby v. R (1978) 140 C.L.R. 109 at p.112, Mr Thomas of counsel has submitted that it would be open to the jury to find his client guilty of manslaughter. This verdict could be reached, it was said, on the basis that the accused had participated in an assault upon the deceased without the possession of an intention to kill or to cause really serious bodily injury. The conduct of the other persons alleged to have been involved went beyond the scope of a common design and an intention to kill was obviously formed by one of them as the nature and distribution of the stab wounds on the body of the deceased would demonstrate. As I indicated in the course of discussion, I have had considerable difficulty in seeing how manslaughter could go before the jury on this foundation.

1. Ultimately, I have arrived at the view that before the jury would be entitled to return a verdict of guilty of murder or of manslaughter, it would be necessary for them to find, inter alia, beyond reasonable doubt that either the accused personally inflicted the wounds upon the deceased using a barbecue fork or that he was a party to the employment of that fork either because its use fell within the agreed parameters of an arrangement into which he had entered or because the employment of violence of the order involved in the use of a weapon in this fashion was contemplated by him as a reasonably possible contingency in the implementation of the common design.

1. For practical purposes, in the context of this particular case, I think that it could be safely put before the jury that the accused could be held guilty of murder, all other elements being present, only if, one, the jury were satisfied beyond reasonable doubt that he personally stabbed the deceased or, two, that he contemplated the use of such a weapon with murderous intent by some other person.

1. With respect to the basis upon which manslaughter could be put, I consider that it could properly be presented for consideration on the basis that the jury may not be prepared to infer that any stabbing was performed by the accused with the necessary intention to constitute the crime of murder or, alternatively, that whilst he was a party to an agreement as contemplated or had as one of its elements an assault upon the deceased perpetrated with such a weapon, then again the necessary mental element of intention to kill or cause really serious bodily injury may not be present.

1. Realistically, I propose to indicate to this jury, I think, and properly, that if they cannot in effect put that fork in the hand of the accused one way or another, and that doesn't mean he personally used it - I think there is an unreality about much of the other argument that has been advanced - then they would not be entitled to convict him of the crime of murder or manslaughter. 

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