R v Pp

[2002] VSC 547

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 1489 of 2001

THE QUEEN

v

PP

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2002
DATE OF RULING:	4 December 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 547

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr B.J. Bourke with Ms A.C. Fox	Haines & Polites

HIS HONOUR:

1. Yesterday, after I had completed part of the charge to the jury, Mr Ryan on behalf of the Crown submitted that I had made three errors in what I had said to the jury thus far.

1. First, Mr Ryan submitted that when explaining the need for a unanimous verdict I had directed the jury that it was necessary to reach a unanimous verdict in order to convict the accused, but I had failed to instruct the jury that it was necessary to reach a unanimous verdict  in order to acquit the accused.

1. Secondly, Mr Ryan submitted that when I directed the jury on the law of self-defence, he had heard me to say that, "If the Crown failed to prove beyond reasonable doubt that the accused did not believe that it was necessary to stab David Hossack in order to defend himself, but did prove beyond reasonable doubt that the degree of force which was used was excessive in the circumstances perceived by the accused, the verdict would not be guilty of murder, but guilty of manslaughter".

1. Thirdly, Mr Ryan submitted that when I was directing the jury on the law of provocation, he had heard me to say to the jury that in order to negative provocation, the Crown had to establish beyond reasonable doubt each, as opposed to one, of the following three things, namely: one, that the deceased, David Hossack, did not engage in conduct or was not believed by the accused to be responsible for conduct which was seen by the accused to be provocative; two, that the accused in stabbing Hossack was not acting during a period of loss of control occasioned by the provocation; three, that an ordinary person of the same age as the accused and placed in the same position as the accused, would not have lost self-control and gone on to perform the stabbing which it is alleged that the accused committed.

1. Overnight, I have looked at the unrevised transcript of so much of the charge as I have yet delivered, and it shows that Mr Ryan is correct.  I did not point out specifically to the jury that they must reach unanimity of verdict in order to acquit as much as to convict and I consider that I should do so.

1. I did say to the jury that if the degree of the force which was used was excessive the verdict might be not guilty of murder but guilty of manslaughter and that, too, needs to be corrected.

1. I propose to correct it by delivering a further instruction to the jury when I come to deal with the evidence which bears upon the question of self-defence.

1. Finally, I did say that it was necessary for the Crown to negative each, as opposed to one, of the three matters to which I have referred when dealing with provocation, rather than any one.  And although I am inclined to think that the context may have made clear that what was intended was one, it goes without saying, in my view, that any doubt should be removed.

1. I propose to remove the possibility of doubt by further direction to the jury when I come to deal with the evidence which bears upon the question of provocation.

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