Herodotou v The Queen [2018] VSCA 253

Court of Appeal (Vic)|2018-10-04|Before: Mr P, Beach JA, Kaye JA, Weinberg JA

The applicant submitted that the direction given by the judge was not sufficient to mitigate against the potential misuse of the evidence by the jury. That was despite the fact that no exception was taken at trial to the direction given.

[9] [1994] HCA 63; (1994) 181 CLR 487 ('M v The Queen').

[12] [2007] HCA 30; (''). See also ; , 653-4 [38].

[13] Libke [2007] HCA 30; (2007) 230 CLR 559 (citations omitted) (emphasis in original).

[15] Ibid 329-30 [65]-[66] (citations omitted) (emphasis added).

[18] See Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 480 where the majority said that the Court of Appeal's satisfaction that a finding of guilt was inevitable is relevant, but not necessarily decisive, when considering whether there has been a 'substantial miscarriage of justice'. See also Andelman v The Queen [2013] VSCA 25; (2013) 38 VR 659, 683.

[19] In DPP v Morgan [1975] UKHL 3; [1976] AC 182, Lord Simon defined 'crimes of basic intent' as those offences requiring a mens rea that does not go beyond the actus reus. Manslaughter is such a crime. See generally Simon Bronnit and Bernadette McSherry, Principles of Criminal Law (Lawbook Co, 4th ed, 2017) 292.

[20] Putting reckless murder, to which we have already referred, to one side.

[21] In Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205, Barwick CJ spoke of the requirement that there be a 'willed' act. His Honour said that it was the act which must be willed, though its consequences might not be intended. In that case, the question was whether an accused who pointed a sawn off rifle at the deceased in the course of the robbery, which discharged and killed him, was guilty of murder. That depended, in part, upon whether he intentionally pulled the trigger, as distinct from discharging the weapon through a reflex reaction. The intention to pull the trigger involved what we would today call basic intent. The intention to kill or cause really serious injury would be specific intent.

[22] See Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 118-20 (Barwick CJ); R v Sergi [1974] VicRp 1; [1974] VR 1, 9-11; La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62, 69 (Barwick CJ), 77 (Gibbs J); R v TY [2006] VSCA 113; (2006) 12 VR 557, 560 [15] (Buchanan JA); and R v Barrett [2007] VSCA 95; (2007) 16 VR 240, 251 [49]-[51] (Eames JA).

DPP v Herodotou [2017] VSC 178 (Hollingworth J)

[1] 'Reckless murder' means foresight on the part of the accused of the probability of death or really serious injury. See La Fontaine v The Queen [1976] HCA 52; (1976) 136 CLR 62 and R v Crabbe [1985] HCA 22; (1985) 156 CLR 464.

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