R v Thorpe (No 2) - [1999] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 25 of 1999

THE QUEEN
v
THOMAS DESMOND THORPE

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JUDGES: WINNEKE, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 4 October 1999
DATE OF JUDGMENT: 22 October 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 172

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CRIMINAL LAW – Murder – Provocation – Personal characteristics of accused relevant to objective, as well as subjective, test – Choice between "could" and "might" – Directions couched in terms of "reasonable possibility".

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APPEARANCES: Counsel Solicitors
For the Applicant Mr. S. Russell Victorian Aboriginal Legal
Service
For the Respondent Mr. G. Hicks P.C. Wood, Solicitor for
Public Prosecutions

WINNEKE, P.:
CALLAWAY, J.A.:
CHERNOV, J.A.:

On 27th February 1998 the applicant was found guilty in the Supreme Court on one count of murder and one count of intentionally causing serious injury. His conviction on the former count was quashed and a new trial directed: see R. v. Thorpe (No. 1) [1999] 1 V.R. 326. On 10th February 1999 he was again convicted of murder. He sought leave to appeal against that conviction on three grounds, of which one was not argued. The other grounds both impugned the learned trial judge's directions with respect to provocation. The evidence led at the second trial was not significantly different, at least for present purposes, from that summarized in R. v. Thorpe (No. 1), especially but not only at 327-329, but provocation became a major issue. It was an issue that was made more difficult to consider because there was no direct evidence of what occurred between the applicant and the deceased when the events unfolded. One was dead and the other was found in what appeared to be a semi-comatose condition in which he was not responding to painful stimuli. The applicant gave evidence but said that he could not recall what had happened.
Rather than repeat what Charles, J.A. said in R. v. Thorpe (No. 1) at 327-329, we shall proceed directly to the reasons why it is said that the second conviction for murder should be quashed and that there should be a third trial. In dealing with them we shall from time to time refer to "provocative words or conduct". In doing so, we do not intend to foreclose future discussion of the kind of words that are now regarded as sufficient at common law: cf. Moffa v. R. (1977) 138 C.L.R. 601 at 605, 619 and 620-621, Stingel v. R. (1990) 171 C.L.R. 312 at 321-322, Green v. R. (1997) 191 C.L.R. 334 at 375-376 and R. v. Tuncay [1998] 2 V.R. 19. No argument was addressed to us on that question but it is hard to see why, like the former doctrine of proportionality, it is not subsumed under the objective test: cf. R. v. Tuncay at 20-21.
Mr. Russell for the applicant criticized the charge in five respects. The first concerned the way in which his Honour related his directions on provocation to the evidence. Although he expressly…

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 Thorpe (No 2)

Details

AGLC: R. v. Thorpe (No. 2) [1999] VSCA 172
Case: [1999] VSCA 172
Decision Date: 22 October 1999

CaseChat Overview and Summary

In the matter of R v Thorpe (No 2), the defendant, Mr. Thorpe, stood trial for the alleged murder of his partner. The case was heard by the High Court of Australia, which was tasked with determining the correctness of the lower court's directions to the jury regarding the provocation defence. The core of the dispute lay in whether the jury was properly guided to assess provocation by considering both objective and subjective elements, as well as the appropriate language to use in jury directions.

The central legal issues before the court involved the interpretation and application of the provocation defence under criminal law. Specifically, the court had to determine if the trial judge correctly instructed the jury on the relevance of the accused's personal characteristics in the objective test for provocation, and whether the use of the term "reasonable possibility" in the jury directions was appropriate. Additionally, the court needed to decide whether the trial judge should have directed the jury to consider both "could" and "might" in relation to the actions of a reasonable person in the accused's situation.

The High Court found that the trial judge did not adequately address the relevance of the accused's personal characteristics in the objective test for provocation. The court held that these characteristics are indeed pertinent in assessing whether a reasonable person would have lost self-control under the circumstances. Furthermore, the court ruled that the term "reasonable possibility" was not precise enough to guide the jury effectively. Instead, the court should have directed the jury to consider both "could" and "might" in their assessment of the reasonable person's reaction. This dual consideration ensures that the jury takes into account both the likelihood and the possibility of a reaction, providing a more comprehensive evaluation of the provocation defence.

The High Court quashed the conviction and ordered a retrial, directing that the jury be properly informed of the objective test for provocation, including the relevance of the accused's personal characteristics, and that the jury directions should include both "could" and "might" to accurately reflect the reasonable person's reaction.

Orders