R v TY - [2006] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 117 of 2005

THE QUEEN
	v.
TY

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JUDGES:	WARREN, C.J., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2006
DATE OF JUDGMENT:	24 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 113

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Criminal law – Murder – Reckless murder – Jury to be instructed as to distinction between inadvertent and advertent negligence – Consciousness of guilt – Degree of culpability cannot be determined by conduct exhibiting consciousness of guilt – Open to jury to find mental element to establish murder – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Dowling, McGregor Thomas

WARREN, C.J.:

Subject to some additional observations I would make, I agree substantially for the reasons of Buchanan, J.A. that the appeal should be allowed and the matter remitted for retrial.

Grounds 1 and 2 addressed the adequacy of the directions on reckless murder. In my view, the jury would have more assisted by a description of the ingredients they must find to be satisfied as to the state of mind of the accused as set out in Pemble v. R.[1] When the trial judge directed the jury “…you are not dealing with the state of mind of the accused…”,[2] the “firm emphasis” on the accused’s actual state of mind as described by Barwick, C.J. in Pemble was jeopardised. In my view, a jury in the circumstances of reckless murder should be directed that they must be satisfied beyond reasonable doubt that:

1.   The accused caused the death of deceased.
2.   The accused ought and must have foreseen the consequences of the act contemplated; and further that,
3.   In assessing foresight, what a reasonable person might have foreseen is relevant but the accused’s actual state of mind is critically important and they should not treat what they think a reasonable person’s reaction would be in the circumstances as decisive of the accused’s state of mind.[3]
4.   In assessing the accused’s state of mind the accused’s circumstances are relevant (such as age, background, educational and social circumstances, emotional state and state of sobriety).

[1](1971) 124 CLR 107, 120.

[2]As adverted to by Buchanan, J.A. at para [16].

[3]Pemble v. R., ibid.

For the reasons explained by Buchanan, J.A. those directions were not given.

There was complaint that in the circumstances of this case the directions on reckless murder and unlawful and dangerous act manslaughter were given separately and interposed by other important directions and, also, after an overnight adjournment. The circumstances of each trial will vary and ultimately it is a matter for the trial judge as to the manner of delivery of the charge. For my part I would be hesitant to criticise a trial judge as to the order of the charge or the timing of the particular directions such as on manslaughter. The order will turn ordinarily…

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 TY

Details

AGLC: R v TY [2006] VSCA 113
Case: [2006] VSCA 113
Decision Date: 24 May 2006

CaseChat Overview and Summary

In the case of R v TY, the appellant was convicted of murder by a jury in the Supreme Court of Victoria. The prosecution alleged that the appellant had recklessly caused the death of another person. The case was brought to the Court of Appeal, which was required to determine whether the trial judge's instructions to the jury regarding the distinction between inadvertent and advertent negligence were adequate and whether the jury's verdict could stand.

The primary legal issue before the Court of Appeal was whether the trial judge had correctly instructed the jury on the distinction between inadvertent and advertent negligence. The appellant argued that the trial judge had failed to adequately instruct the jury on this distinction, which was critical in determining the degree of culpability required to establish reckless murder. The court also considered whether the jury's verdict could be sustained based on the evidence presented, including whether the appellant's conduct demonstrated consciousness of guilt.

The Court of Appeal held that the trial judge had not adequately instructed the jury on the distinction between inadvertent and advertent negligence. The court emphasised that the degree of culpability required for reckless murder could not be determined solely by the appellant's conduct exhibiting consciousness of guilt. Instead, the jury must consider whether the appellant's actions demonstrated a conscious disregard for the risk of death. The Court of Appeal concluded that the trial judge's failure to provide proper instructions on this point warranted a retrial. The court also noted that it was open to the jury to find the requisite mental element to establish murder based on the evidence presented.

The Court of Appeal ordered a retrial of the appellant, determining that the trial judge's failure to properly instruct the jury on the distinction between inadvertent and advertent negligence necessitated a new trial to ensure a fair and accurate determination of the appellant's guilt or innocence.

Orders