R v Osip - [2000] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 132 of 2000

THE QUEEN
	v.
ROBERT JOHN OSIP

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JUDGES:	PHILLIPS, C.J., TADGELL and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2000
DATE OF JUDGMENT:	13 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 237

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CRIMINAL LAW – Manslaughter – By criminal negligence – Direction as to “defence” of honest and reasonable mistake of fact not required.

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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 D.J. Ross, Q.C. and Mr S. Gillespie-Jones	John A. Clements & Co.

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Batt, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

TADGELL, J.A.:

I have had the advantage of reading in draft the reasons prepared by Batt, J.A. For those reasons I would dismiss each of these applications.

BATT, J.A.:

Introduction

On 19 February 1999 the applicant, Robert John Osip, when hunting for deer, shot and killed Gary Francis Paterson (whom I shall call “the deceased”). On 22 May 2000 he was found guilty of manslaughter by a jury in the Supreme Court. The Crown case had been put as one of negligent manslaughter. The maximum penalty for manslaughter is imprisonment for 20 years. The applicant, who was born on 27 August 1978, has no previous convictions. Having heard a plea in mitigation of penalty, in which two witnesses were called, the trial judge on 26 May 2000 sentenced the applicant to be imprisoned for four years and directed that he serve a period of one year before being eligible for release on parole. His Honour made a declaration of three days’ pre-sentence detention.

The Evidence

The applicant admitted, pursuant to s.149A of the Evidence Act 1958, that a bullet discharged from his firearm struck the deceased and killed him. The evidence showed that this occurred at Warburton East in the Yarra State Forest just off the McDonald Track roughly 200 metres south of the Woods Point-Warburton Road. The deceased resided in the locality, at 19 White Gum Drive, East Warburton, which is in a residential area a little distance to the north of the Woods Point-Warburton Road.

The Yarra State Forest is open to the public to enter. It contains wild deer of the Sambar species. The hunting of Sambar deer is permitted in it all year round; and most lawful leisure activities are permitted, including dog walking, picnicking, bushwalking, cycling and off-road motorcycle riding. An average Sambar adult deer stands 50 inches at the shoulder and could be likened to a cow or a pony in size. The males have antlers. Sambar deer inhabit tall open forests rather than paddocks, with the result that the range at which they can be positively identified is restricted.

A booklet called “Victorian Hunting Guide”, published by the Department of Natural Resources and Environment, is annually forwarded…

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 Osip

Details

AGLC: R v Osip [2000] VSCA 237
Case: [2000] VSCA 237
Decision Date: 13 December 2000

CaseChat Overview and Summary

In the matter of R v Osip, the defendant faced charges of manslaughter by criminal negligence. The case was heard in the Court of Criminal Appeal. The defendant had been convicted of manslaughter for an incident where he had caused the death of a person due to his criminal negligence. The defendant argued that he had an honest and reasonable belief that his actions were safe, which could potentially constitute a defence under certain circumstances.

The primary legal issue before the court was whether the trial judge was required to direct the jury as to the “defence” of an honest and reasonable mistake of fact. The court had to determine if such a direction was necessary and, if so, whether the failure to provide it constituted a miscarriage of justice. The court also needed to consider whether the trial judge’s instructions to the jury adequately covered the concept of criminal negligence and the defendant’s state of mind.

The Court of Criminal Appeal held that no direction as to an honest and reasonable mistake of fact was required. The court found that the trial judge had sufficiently instructed the jury on the principles of criminal negligence, including the need to consider the defendant’s state of mind and the reasonable foreseeability of harm. The appellate court concluded that the omission of a specific direction on the “defence” of an honest and reasonable mistake of fact did not lead to a miscarriage of justice, as the jury was properly guided on the relevant legal principles. The appeal was dismissed, and the original conviction was upheld.

Orders