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Masciantonio Case Note and Critique

Categories: JudgeJuryLawSociety

The defence argued provocation.

An appeal was put before the Court of Criminal Appeal Victoria. Reason for the appeal was that the judge had failed to mention provocation to the jury regarding the second stage of the incident. That this failure was a miscarriage of justice. Crockett, Marks & Ormiston JJ – Court of Criminal Appeal. Crockett & Marks JJ agreed with the O’Bryan J decision. Ormiston J believed that provocation should not have been a defence at all. November 1994 appealed to High Court of Australia on special leave.

Brennan, Deane, Dawson, Gaudron and McHugh JJ.

Appellant put forward that considering the circumstances of the history between Masciantonio and his son-in-law that any ordinary person would have lacked self-control. McHugh J put forward that the fatal wound could not be determined as to whether it was caused in the first instance or the second instance, and that the wording used by O’Bryan J was reflective of whether or not the jury found the Appellant had inflicted the fatal blow in the first or second instances and that if that the jury had in fact found that the appellant had inflicted the fatal blow in the first instance that provocation could not be a defence in the second instance.

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McHugh J concluded that the appeal should be dismissed.

Brennan, Deane, Dawson and Gaudron JJ agreed together that given the evidence, that the Appellant may have still been lacking in self-control and that the trial judge should not have withdrawn the consideration of provocation in the second instance. Brennan, Deane, Dawson and Gaudron JJ concluded that the appeal should be allowed and a retrial ordered. Issues: Whether an ordinary person could have regained the self-control in the time between the first and second stage events? Why did the trial judge not direct the jury to the option of provocation as a defence from the jury’s consideration during the second stage of the event? Was there a miscarriage of justice?

Decision: Appeal Allowed
Retrial Ordered.

Ratio: The trial judge inadvertently or not, effectively withdrew from the jury’s consideration the issue of provocation at the second stage of events and since the appellant’s loss of self-control may have continued to that stage, there cannot be said to be no miscarriage of justice. Obiter: That a reasonable jury could conclude the appellant was acting under provocation. Upon the evidence it was open to a jury, properly directed as to the law, to reach that conclusion.

Majority Judgments Brennan J

Deane J
Dawson J
Gaudron J
Minority Judgments McHugh J

The case of Masciantonio v The Queen (1995) 183 CLR 58 (‘Masciantonio’) is a High Court of Australia decision from 1995 that deals with jury direction and provocation and whether the original trial judge caused a miscarriage of justice when he ‘inadvertently or not, effectively withdrew from the jury’s consideration the issue of provocation’ or whether ‘provocation ought not to have been left to the jury at all.’ Another issue that had to be dealt with was the comparison of the capability of an ordinary person’s lack of self-control to that of the Appellant, and what, if any, triggers or history would have caused the Appellant to have lost self-control to the extent that he was unable to regain that self-control to realise what he was doing. Given the history of the Appellant’s life and that of the Appellant and the deceased’s relationship, ‘any characteristics or life experiences of the accused which bear upon the quality or gravity of the alleged wrongful act or insult are to be attributed to the ordinary person for the purpose of deciding whether the wrongful act or insult was of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.’

A formalism approach to the matter of the jury direction can be argued that, it is the responsibility of the trial judge to direct the jury in all matters and in all instances. in such a way, that they are capable of understanding the difference between intent and provocation due to lack of self-control. Although the trial judge in the original case directed the jury to consider, if they found that the fatal wound was made during the provocation in the first instance, he allowed them to ascertain for themselves that ‘if they found that the fatal wound was inflicted while the deceased was lying on the footpath’ that the defence of provocation would not be available in the second instance. Considering that a jury has no legal experience and therefore, no understanding that provocation could still be a defence in the second instance if they found that a reasonable person would have lacked the ability to regain their self-control it is up to the trial judge to explain in a manner that is understandable.

Attorney-General, Minister for Finance and Minister for Industrial Relations for Victoria Robert Clark said: “The legislation will implement reforms arising from a 2009 report by the Victorian Law Reform Commission (VLRC) on jury directions, which found that jury directions in Victoria have become complex, voluminous and uncertain. Complex jury directions lead to unnecessary appeals and retrials that are a significant cause of delay in the court system, as well as unnecessary trauma and stress for victims, witnesses and others.”

Formalism may not give what seems to be the most just outcome but it is rational and follows the law as it is set out and as society expects it to be. Just as in the situation with the one-armed swimmer, not all decisions are fair or just, but they follow the rules and must be void of emotion or bias. The Appellant was successful in his appeal and a re-trial was ordered. The retrial resulted in Mr. Masciantonio being found guilty of Manslaughter. Bibliography

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Masciantonio Case Note and Critique. (2016, May 27). Retrieved from

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