R v Margach - [2007] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 71 of 2006

THE QUEEN
	v
PAUL JASON MARGACH

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JUDGES:	VINCENT and REDLICH JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2007
DATE OF ORDER:	29 March 2007
DATE OF JUDGMENT:	30 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 110

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Criminal Law – Conviction – Murder – Provocation – Inadequacy of trial judge’s directions concerning “ordinary person” test – Jury left at large – Masciantonio v R (1995) 183 CLR 58 – Trial judge’s separation of treatment of “ordinary person” test and concept of proportionality – R v McKeown [2006] VSCA 74 – Miscarriage of justice – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr O P Holdenson, QC	McNamaras

VINCENT JA
REDLICH JA
HABERSBERGER AJA:

The appellant, having been found guilty[1] in the Trial Division of this Court of the murder, on 15 October 2004, of his wife Tina Maree Margach at Ascot Vale,[2] sought leave to appeal against his conviction on the grounds that:
[1]Date of jury verdict 15 February 2006.
[2]After hearing a plea in mitigation of penalty, he was sentenced, on 8 March 2006, to 17 years’ imprisonment in respect of which a non-parole period of 13 years and six months was fixed.

1.The learned trial judge erred in her directions (both oral and written) to the jury concerning the defence of provocation in directing the jury to the effect that:
(a)there is a requirement of “proportionality” between the provocative act(s) and the act(s) of the [appellant] which caused the death; and
(b)there is a requirement that the provocative act(s) be of such a kind that an ordinary person might react in [precisely] the same way as the [appellant] reacted –

and, as a consequence, there has been a substantial miscarriage of justice.
2.The learned trial judge erred in her directions to the jury concerning the defence of provocation in that:
(a)she placed an onus on the [appellant] to prove that he was provoked; and
(b)she directed the jury that, before the jury could consider the defence of provocation, the jury must first find that the [appellant] was provoked –

and, as a consequence, there has been a substantial miscarriage of justice.
3.The learned trial judge erred in her directions (both oral and written) to the jury concerning the defence of provocation in that she directed the jury that the jury was “entitled” to consider or look at the [appellant’s] characteristics, etc. rather than directing the jury that the jury was “bound” or “required” to consider or look at these matters and, as a consequence, there has been a substantial miscarriage of justice.
4.The learned trial judge erred in answering the second question of the jury, namely, “What is really serious bodily injury?” … by:
(a) stating that:-
(i)she could not define the words for the jury; and
(ii)the words mean “what [the jury] … think[s] they…

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 Margach

Details

AGLC: R v Margach [2007] VSCA 110
Case: [2007] VSCA 110
Decision Date: 30 May 2007

CaseChat Overview and Summary

The case of R v Margach involved the appellant's conviction for the murder of his wife. The appeal was heard by the Victorian Court of Appeal, where the primary issue was whether the trial judge's directions to the jury regarding the "ordinary person" test were adequate, particularly in the context of the provocation defence. The appellant argued that the trial judge's separation of the "ordinary person" test from the concept of proportionality, as well as the failure to properly direct the jury on these aspects, led to a miscarriage of justice.

The court examined whether the trial judge's directions were in accordance with the principles set out in Masciantonio v R and R v McKeown. It was determined that the judge did not sufficiently explain the role of the "ordinary person" in assessing the adequacy of the provocative act and its effect on the accused's self-control. Additionally, the failure to adequately address the proportionality of the accused's response to the provocation was deemed problematic. These shortcomings meant that the jury was left to apply the legal principles without clear guidance, potentially affecting the outcome of the trial.

Consequently, the Court of Appeal found that the trial judge's directions were inadequate, leading to a miscarriage of justice. The separation of the "ordinary person" test from the concept of proportionality was considered an error, as it did not provide the jury with a coherent framework to assess the provocation defence. As a result, the conviction was quashed, and a retrial was ordered to ensure that the appellant received a fair trial in accordance with the law.

Orders