R v Mankotia - [2001] NSWCCA 52

Reported Decision:
120 A Crim R 492

New South Wales

Court of Criminal Appeal

CITATION: R v Mankotia [2001] NSWCCA 52

FILE NUMBER(S): CCA 60779/98

HEARING DATE(S): 28 February 2001

JUDGMENT DATE:
28 February 2001

PARTIES :

R v Blinder Kumar Mankotia

JUDGMENT OF: Heydon JA at 1; Barr J at 15; Smart AJ at 16

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70049/97

LOWER COURT JUDICIAL
OFFICER : Sperling J

COUNSEL : Crown: Ms E Wilkins
Appellant: Mr P Zahra SC

SOLICITORS: Crown: S E O'Connor
Appellant: D J Humphreys

CATCHWORDS: Criminal Law - Appeal against conviction - Murder - Defence of provocation - Trial judge's directions to jury on provocation - Whether personal characteristics of accused should be imputed to the "ordinary person" by jury when applying s 23(2)(b) of the Crimes Act and determining whether defence of provocation made out - Whether New South Wales Court of Criminal Appeal bound by High Court decisions on provocation - Stingel v R (1990) 171 CLR 312 - Masciantonio v The Queen (1995) 183 CLR 58 - R v Green (1997) 191 CLR 334 - Crimes Act 1900 (NSW), s 23(1) and (2)

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED:
Green v R (1997) 191 CLR 334
Masciantonio v R (1995) 183 CLR 50A
R v Rogonui, 13 April 2000, NZCA
R v Smith (Morgan) 2000 3 WLR 654
Stingel v R (1990) 171 CLR 312

DECISION: Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60779/98

HEYDON JA
BARR J
SMART AJ

Wednesday, 28 February 2001

REGINA v Blinder Kumar MANKOTIA

JUDGMENT

1 HEYDON JA: On 1 August 1998, after a trial before Sperling J and a jury, the appellant was convicted of murdering Helena Pishova. On 27 November 1998 he was sentenced to a minimum term of twelve years' penal servitude to commence on 25 March 1997 and to expire on 24 March 2009, and an additional term of four years to commence on 25 March 2009 and to expire on 24 March 2013.

2 The appellant appeals against both conviction and sentence. However, no submissions were advanced in relation to the sentence, and the appeal must be dismissed so far as that ground is concerned.

3 The one ground of appeal in relation to conviction was:

Crimes Act

4 The factual background is that the appellant was born in a village in India on 15 March 1970. The trial Judge said that the culture from which he came was "a very rigid one". The custom of arranged marriages prevailed. The appellant never had a girlfriend before coming to Australia in 1996 and meeting the deceased in late 1996 or early 1997. They began to go out together.…

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 Mankotia

Details

AGLC: R v Mankotia [2001] NSWCCA 52
Case: [2001] NSWCCA 52
Decision Date: 28 February 2001

CaseChat Overview and Summary

The case of R v Mankotia involved the appellant's appeal against his conviction of murder, with the primary issue being the adequacy of the trial judge's directions to the jury regarding the defence of provocation. The appellant was convicted of murdering his wife, and he contested the conviction by arguing that the trial judge failed to properly direct the jury on the application of the defence of provocation under section 23(2)(b) of the Crimes Act 1900 (NSW). The appellant contended that the trial judge did not appropriately consider whether the personal characteristics of the accused should be imputed to the "ordinary person" in assessing whether the defence was made out. This case was heard in the New South Wales Court of Criminal Appeal.

The central legal issue in this appeal was whether the trial judge's directions to the jury about the application of the defence of provocation were adequate, specifically concerning the imputation of the personal characteristics of the accused to the "ordinary person". The appellant argued that the trial judge did not sufficiently address whether these characteristics should be taken into account when determining whether the defence was made out. Another significant issue was whether the New South Wales Court of Criminal Appeal was bound by High Court decisions on provocation, such as Stingel v R, Masciantonio v The Queen, and R v Green. These cases had established principles regarding the application of the defence of provocation, but the appellant questioned whether the NSW Court of Criminal Appeal was obliged to follow these precedents.

The New South Wales Court of Criminal Appeal considered that the trial judge's directions to the jury on the defence of provocation were inadequate. The court found that the trial judge did not adequately address whether the personal characteristics of the accused should be imputed to the "ordinary person" in determining whether the defence of provocation was made out. The court held that the trial judge should have directed the jury to consider whether the characteristics of the accused should be imputed to the "ordinary person" in applying section 23(2)(b) of the Crimes Act. Additionally, the court determined that it was not bound by the High Court decisions on provocation and could exercise its discretion in determining the adequacy of the trial judge's directions. Consequently, the court allowed the appeal, quashed the conviction, and ordered a new trial.

In summary, the New South Wales Court of Criminal Appeal allowed the appellant's appeal, quashed the conviction for murder, and ordered a new trial. The court found that the trial judge's directions to the jury on the defence of provocation were inadequate, specifically concerning the imputation of the personal characteristics of the accused to the "ordinary person". The court also held that it was not bound by High Court decisions on provocation and could exercise its discretion in determining the adequacy of the trial judge's directions.

Orders