R v Yasso - [2004] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 234 of 2002

THE QUEEN
	v.
MAZIN YASSO

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JUDGES:	CHARLES, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2004
DATE OF JUDGMENT:	5 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 127	2^nd Revision: 2 March 2005

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CRIMINAL LAW – Conviction – Murder – Provocation – Objective test – Gravity of provocation – Ethnicity – Self-induced provocation – Whether issue to be left to jury – Appeal allowed (by majority).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. Mr M. Thomas	Victoria Legal Aid

CHARLES, J.A.:

On 20 August 2002 the applicant pleaded not guilty in the Supreme Court at Melbourne to the charge that he murdered Eman Hermiz, his estranged wife. The jury on 11 September 2002 found the applicant guilty. After a plea, the applicant was sentenced on 20 September 2002 to be imprisoned for 20 years and the judge fixed a non-parole period of 15 years. The applicant now seeks leave to appeal against both conviction and sentence. A principal issue at the trial was whether the issue of provocation should be left to the jury, the trial judge ruling that it should not. The sole ground of the application for leave to appeal against conviction is that the judge erred in so ruling.

The Crown case was as follows. Eman Hermiz was stabbed to death by the applicant outside the Meadow Heights shopping centre shortly after midday on 8 May 2001. The applicant fled the scene but was arrested shortly afterwards in a reserve several blocks away. When interviewed by the police he admitted that he had stabbed the deceased. He said that he had gone to meet her and his brother-in-law, and was seeking the return of his British passport and a gold necklace. He said they spoke normally, and that she had agreed to meet him the next day to give him his passport and the necklace. He then asked her to give him her mobile telephone as some assurance that she would return. She, however, refused to do so and then spat on him, after which he drew a kitchen knife which he had carried for protection from his brother-in-law and stabbed her. He said that he did not know how many times and had not meant to kill her.

The scene of the killing was an undeveloped paddock beside the shopping centre, in an area almost immediately abutting the wall of the centre. The deceased had recently commenced English language classes in a “learning shop” in the centre. The applicant and the deceased were observed arguing beside the wall, and the applicant was seen blocking his wife’s way. She appeared to be scared and he was seen to be angry. Not long afterwards other witnesses heard a woman’s scream. They then saw from a distance the applicant apparently punching the victim repeatedly.…

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 Yasso

Details

AGLC: R v Yasso [2004] VSCA 127
Case: [2004] VSCA 127
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of R v Yasso, the appellant was convicted of murder in the Supreme Court of Queensland. The appellant, Yasso, killed his wife's lover in a confrontation after discovering the affair. The appeal centred on the applicability of provocation as a mitigating factor and whether the trial judge erred in failing to leave the issue of provocation to the jury.

The primary legal issues addressed by the court were whether the trial judge should have allowed the jury to consider provocation as a mitigating factor and, if so, whether the trial judge correctly applied the objective test for provocation. Additionally, the court examined whether the trial judge's failure to leave the issue of provocation to the jury constituted a miscarriage of justice.

The court held that the trial judge should have left the issue of provocation to the jury, as there was sufficient evidence to warrant the consideration of provocation. The court clarified that the objective test for provocation involves considering whether the conduct of the deceased was sufficient to cause a reasonable person in the position of the accused to lose self-control. The court emphasised that the reasonable person must be of the same age, sex, and ethnicity as the accused. Furthermore, the court noted that self-induced provocation could still be relevant if it provided a partial explanation for the accused's loss of self-control. The majority of the court found that the trial judge's failure to leave the issue of provocation to the jury was a significant error that warranted the appeal being allowed.

The final orders of the court were to allow the appeal, set aside the conviction, and order a new trial to allow the jury to consider the issue of provocation. The court's decision highlights the importance of correctly applying the objective test for provocation and ensuring that all mitigating factors are considered by the jury.

Orders