R v PDJ - [2002] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 155 of 2001

THE QUEEN
	v.
P.D.J.

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JUDGES:	CHERNOV and EAMES, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2002
DATE OF JUDGMENT:	18 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 211

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Criminal Law – Conviction for murder – Manslaughter by an unlawful and dangerous act left to the jury – Ground of appeal that manslaughter as enunciated in R. v. Markby should have been left to the jury – Direction given was appropriate if the jury found that applicant was engaged in a common enterprise to rob but not to cause really serious injury to the victim – R. v. Markby (1978) CLR 108.

Sentence – Applicant aged 17 years – Head sentence of 16 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W. Morgan-Payler Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. with Mr. G.J. Thomas	Victoria Legal Aid

CHERNOV, J.A.:

I have had the advantage of reading the draft reasons for judgment written by O’Bryan, A.J.A. and agree that the applications should be dismissed for the reasons given by his Honour.

It seems to me plain from what his Honour has said that the trial judge’s charge in respect of manslaughter contained no relevant error and that, in any event, the applicant did not lose a fair chance of acquittal by reason of that aspect of his Honour’s charge. The applicant’s essential case before the jury was that he was party to an agreement to assault the victim with garden stakes and to steal her motor car. It was not part of the agreement, he claimed, to assault her by stabbing or to kill her. The applicant’s counsel obviously came to the forensic conclusion that the only realistic way in which the applicant could escape a finding of guilty of murder was for the jury to find him guilty of manslaughter. Hence, he submitted to them in his final address, as O’Bryan, A.J.A. points out in paragraph [39] of his reasons, that their proper verdict should be one of manslaughter and not murder because the applicant had “participated in an assault”, in the sense of being a party to an agreement to commit that act, “but short of murderous intent and that ... somebody else [came] over the top, way over the top, without any consultation with him, in the use of that barbecue fork.” Thus, counsel claimed, manslaughter could be found on the basis that the use of the fork to kill the victim went outside the plan to assault her with garden stakes. It was contended before us that such a basis for a verdict of manslaughter was supported by R. v. Markby[1].
[1](1978) 140 C.L.R. 108.

The obvious problem with putting manslaughter to the jury on that basis was, as the learned trial judge recognised soon after it was raised by counsel at the trial, that if the…

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 PDJ

Details

AGLC: R v PDJ [2002] VSCA 211
Case: [2002] VSCA 211
Decision Date: 18 December 2002

CaseChat Overview and Summary

The applicant was convicted of murder in the Supreme Court of Victoria. The appeal against the conviction and sentence was heard in the Court of Appeal, which upheld the conviction but reduced the sentence. The applicant and two co-appellants were involved in an incident where the victim was stabbed to death. The trial judge directed the jury that they could convict the applicant of murder if they found that the stabbing was an unlawful act that caused death, or of manslaughter if they found that the act was a dangerous act that caused death and that the applicant was engaged in a common enterprise to rob the victim but not to cause really serious injury.

The court had to decide whether the direction given to the jury about manslaughter was appropriate. The applicant argued that the direction was incorrect and that the court should have left the issue of manslaughter to the jury. The court held that the direction was appropriate because it was based on the principles set out in R v Markby. The court also held that the head sentence of 16 years was not manifestly excessive because the crime was of great seriousness and the applicant's age and prospects of rehabilitation were properly taken into account.

The court upheld the conviction but reduced the sentence to 12 years imprisonment with a non-parole period of 9 years. The court found that the trial judge had not erred in directing the jury about manslaughter and that the sentence was not manifestly excessive. The applicant's appeal against the conviction was therefore dismissed, but his appeal against the sentence was allowed and the sentence was varied as stated above.

Orders