R v Parsons

(2000) 1 VR 161; [2000] VSCA 15

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Murder
3. › Provocation
4. › Withdrawal from jury
5. › Whether evidence capable of raising provocation
6. › Ordinary person test
7. › Supposedly provocative words and gestures
8. › Whether ordinary person could have been provoked to form murderous intent
9. › Masciantonio v R (1995) 183 CLR 58
1. Criminal Law
2. › Murder
3. › Intent
4. › Inference of murderous intent from murderous acts
5. › Whether murderous intent inevitably inferred from nature and extent of stabbing
6. › No evidence of deficit, disorder or condition affecting inference
1. Criminal Law
2. › Evidence
3. › Relationship evidence
4. › Evidence of victim's fear of accused
5. › Admissibility where provocation raised
6. › Relevance to probability of victim provoking accused
7. › Discretion to exclude prejudicial evidence
1. Criminal Law
2. › Trial
3. › Discharge of jury
4. › Whether jury should be discharged after provocation withdrawn
5. › Evidence admitted on basis of provocation defence no longer relevant
6. › Warning given by trial judge of risk of withdrawal

Quick Take

Supposedly provocative words and gestures by a victim in the context of Family Court proceedings — including words such as 'we have got you now, you bastard' accompanied by a smile and laugh — cannot satisfy the ordinary person test for provocation, even when placed in the context of the accused's stressful experiences in litigation. Where a killing involves 48 stab wounds with a knife and there is no evidence of any deficit, disorder or condition, murderous intent is inevitably inferred from the murderous acts. A trial judge who warns defence counsel of the risk that provocation may be withdrawn does not err in refusing to discharge the jury when that eventuality materialises.