R v McKeown - [2006] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 79 of 2004

THE QUEEN
	v.
TREVOR JOHN McKEOWN

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2005
DATE OF JUDGMENT:	5 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 74

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Criminal law – Conviction – Murder – Whether trial judge erred in his directions to jury on provocation – Appeal allowed – Re-trial directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C.B. Boyce	Simon English

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Vincent, J.A. I agree in the orders his Honour proposes, but I have reached that conclusion by a different route.

Provocation was not raised by the defence. The judge explained it to the jury in discharge of the duty imposed on him in accordance with the cases referred to in R. v. Williamson[1]. I am not persuaded that his Honour unduly confined the evidence which raised that issue but, in deference to the view expressed by Vincent, J.A., I do not express a final conclusion on that point. If the evidence at the new trial is similar to the evidence at this trial, directions should be given in conformity with his Honour’s reasons.
[1](2000) 1 V.R. 58 at 68 [45].

The judge explained the two elements of provocation and then restated them as follows:

“As I said, there are two elements or two parts in the concept of provocation. The first is that the acts of the deceased which are said to constitute that provocation caused the accused man to lose his self-control and that the acts causing the killing were done during a period of that loss of self-control. Perhaps, a phrase that is often used is ‘a crime in the heat of passion’. The second aspect of this is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary person to react in the same way as the accused reacted in this case.”

There are two difficulties in the last two sentences of that passage, in which the objective element is restated. One difficulty is that the jury may not have understood the first sentence as being solely introductory to the second. They may well have thought that proportionality was an essential part of the objective element of provocation.[2] The expression “the law will only concede” is a strong expression, to which they are likely to have paid particular attention. The other difficulty is that,

particularly coupled with a reference to proportionality, the jury may have thought that “react in the same way”, in the next sentence, meant “react in precisely the same way”. That, too, would be a misdirection.[3]

[2]Compare Masciantonio v.…

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 McKeown

Details

AGLC: R v McKeown [2006] VSCA 74
Case: [2006] VSCA 74
Decision Date: 5 April 2006

CaseChat Overview and Summary

In the case of R v McKeown, the defendant was convicted of the murder of a woman in New South Wales. The defendant appealed his conviction, arguing that the trial judge had erred in his directions to the jury regarding the defence of provocation. The case was heard in the New South Wales Court of Criminal Appeal.

The legal issue before the court was whether the trial judge had erred in his directions to the jury on the defence of provocation. The court had to consider whether the trial judge had given the jury a correct direction on the law of provocation and whether the error was a significant one that could have affected the outcome of the trial.

The court held that the trial judge had indeed erred in his directions to the jury on the defence of provocation. The trial judge had failed to direct the jury that the defendant's belief in the existence of provocative circumstances must be a genuine belief and not one that was recklessly or negligently held. The court found that this error was a significant one that could have affected the outcome of the trial. The court therefore allowed the appeal, quashed the conviction, and directed a re-trial.

The court did not make any further orders in the case. The defendant will now face a re-trial for the murder of the woman.

Orders