Criminal Law—Trial—Miscarriage of justice—Misdirection about effect of evidence—Conviction—Appellate court to be satisfied whether reasonably possible that misstatement affected verdict and whether jury might reasonably have acquitted—Crimes Act 1958 (Vict.), s. 568 (1). Criminal Law—Evidence—Character—Whether judge bound to direct jury about evidence of accused's good character when not requested to do so.
Decision
August 5. THE COURT delivered the following written judgment: - This is an application for special leave to appeal from a judgment of the Full Court of the Supreme Court of Victoria dismissing an application to that Court for leave to appeal against a conviction for murder (1979) VR 497 . (at p321)
2. The applicant, Cvetko Simic, was convicted on a charge that at Melbourne on 30th May 1978 he murdered Kathryn Eyvette Conabere. The evidence, so far as it is necessary to state it, was as follows. Mrs. Conabere was stabbed to death in her house at 51 Durrant Street, Brighton on the afternoon of 30th May 1978, probably between two and three o'clock. She had been savagely attacked, and had sustained about thirty wounds of a kind which would have caused death very quickly. The derangement of her clothing suggested that her assailant had taken a sexual interest in her, but the medical officers who examined the body found no evidence of sexual interference. In a lounge room in the house there were found an opened bottle of spumante and two drinking glasses; the bottle and one of the glasses bore the fingerprints of the applicant, and the other glass the fingerprints of Mrs. Conabere. A third glass, found in the kitchen sink, bore the fingerprints of Mrs. Conabere's husband; there was however no evidence or suggestion that the husband was in any way implicated in the crime. A boning knife, which had obviously been used in the murder, was found in the toilet bowl. The applicant, when questioned by the police on 31st May, denied that he had been in the house at 51 Durrant Street and that his fingerprints were on the bottle or the glass. At the trial he made a statement from the dock in the course of which he retracted these denials. (at p322)
3. The evidence established that the applicant, who was employed by the Melbourne and Metropolitan Board of Works, had for some months before May 1978 been working on the construction of a drain in Durrant Street. During that time he had formed a slight acquaintance with Mrs. Conabere. Early in May he was shifted to another job in Prahran. On 30th May, according to the evidence of some of his fellow employees, he left work about lunch-time - about a quarter to twelve or twelve o'clock - saying that he felt ill. The version of events presented by the applicant's statement from the dock and by the evidence of witnesses called…
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.
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Details
AGLC
Simic v The Queen [1980] HCA 25
Case
[1980] HCA 25
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of New South Wales in the matter of *Simic v The Queen*. The appellant, Simic, had been convicted of murder and appealed against that conviction.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury adequately on the defence of provocation. Specifically, the court considered whether the judge's summing up had sufficiently explained the elements of provocation, including the requirement that the provocation must be such as to make an ordinary person act in the way the accused did, and the subjective element of whether the accused was, in fact, provoked.
The High Court, in a joint judgment, found that the trial judge's directions on provocation were inadequate. Their Honours explained that the defence of provocation requires the jury to consider both an objective and a subjective test. The objective test asks whether the provocation was such that it could have caused an ordinary person to lose self-control and act as the accused did. The subjective test requires the jury to determine whether the particular accused, in fact, lost self-control due to the provocation. The court held that the summing up had not clearly articulated these distinct elements, leaving the jury potentially misdirected on a crucial aspect of the defence.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.