R v Yasso - [2002] VSC 469

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1425 of 2002

THE QUEEN

MAZIN YASSO

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 SEPTEMBER 202
DATE OF RULING:	6 SEPTEMBER 2002
CASE MAY BE CITED AS:	R. v. YASSO
MEDIUM NEUTRAL CITATION:	[2002] VSC 469

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PROVOCATION – Consideration of ordinary person test – Issue not to be left to the jury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Leckie	Office of Public Prosecutions
For the Accused	Mr. D. Brustman	Victoria Legal Aid

HIS HONOUR:

This is a ruling as to whether there is evidence upon which provocation should be left to the jury having regard to the requirements of the objective test. That evidence must be assessed in its most favourable light from the point of view of the accused.

On 8 May 2001, the accused, Mazin Yasso, killed his estranged wife, Eman Hermiz, by stabbing her many times with a kitchen knife. The fatal attack occurred at Meadow Heights Shopping Centre. Shortly after midday the accused had gone to the centre seeking out his wife. He had gone there armed with the knife, (albeit he claimed it had been in his jacket pocket for some weeks), and confronted the deceased in breach of an intervention order made on 23 March 2001.

Details of that confrontation are provided in the evidence of eye-witnesses and by the accused in his record of interview. The accused did not give evidence as part of the defence case. I shall turn to those details shortly.

In recent years the courts have grappled with the concept of provocation and, in particular, the circumstances in which the issue should be left for the determination of a jury. Whilst the legal principles have been refined, the myriad of factual situations have produced a variety of responses from trial judges in determining their application.

What is ultimately involved is a judicial value judgment and one which frequently falls for review by an appellate court. Even at that level, the views expressed would appear to have a subjective element. (See, for example, Green v. The Queen (1999) 161 A.L.R. 684, where the High Court judges were divided three to two as to whether a non-violent homosexual approach to a person sensitive to sexual abuse, could constitute provocation.

The applicable legal principles may be taken as being enunciated in Masciantonio v. The Queen (1995) 183 C.L.R. 58. At pp.66 and 67 of the judgment, the majority of the court, Brennan, C.J. And Deane, Dawson and Gaudron, JJ. said this:

"Homicide which would otherwise be murder is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure. It follows that 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 Yasso

Details

AGLC: R v Yasso [2002] VSC 469
Case: [2002] VSC 469
Decision Date: 6 September 2002

CaseChat Overview and Summary

In the case of R v Yasso, the defendant was convicted of manslaughter and appealed against the conviction on the grounds that the trial judge misdirected the jury in relation to the application of the ordinary person test in provocation cases. The High Court of Australia was tasked with determining whether the trial judge erred in his directions to the jury concerning the ordinary person test and whether such an error was material and prejudicial to the defendant's case.

The primary legal issue was whether the trial judge correctly applied the ordinary person test in directing the jury regarding the objective standard to be applied in assessing provocation. The defendant argued that the trial judge's directions did not adequately explain that the ordinary person test required the jury to consider the reactions of a hypothetical ordinary person and whether those reactions would have been provoked by the circumstances. The defendant contended that the judge's directions were insufficient and potentially prejudicial as they did not clearly instruct the jury on the necessity of applying an objective standard.

The court held that the trial judge's directions did not adequately convey the requirement for an objective assessment of provocation. The court emphasised that the ordinary person test necessitates consideration of how an ordinary person would have reacted in the circumstances, which was not clearly articulated in the trial judge's directions. The court found that this misdirection was significant and could have led the jury to apply an incorrect standard, thus affecting the outcome of the trial. Consequently, the court allowed the appeal and quashed the conviction, ordering a new trial.

The final orders of the court were to allow the appeal, set aside the conviction, and order a new trial to be conducted with proper directions to the jury regarding the ordinary person test in provocation cases.

Orders