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Majority verdcits for Manslaughter in a Murder Trial where the defence of Provocation is raised.

Case Note QLD - R v Peniamina [2021] QSC 250

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

Facts: The defendant and now deceased wife had an argument about infidelity, during the trial it was raised by the defence the wife armed herself with a knife and cut the defendant first. The defendant subsequently killed his wife. The issue of the complainant arming herself with the knife raised the partial defence of provocation at the trials. At arraignment the defendant plead not guilty to murder, but guilty to the alternative count of manslaughter.

The DPP did not accept the plea to manslaughter. If the jury was satisfied partial defence of provocation is made out, the jury could convict only the charge of manslaughter.  At the conclusion of the trial, it became apparent the Jury of 12 could not reach a unanimous verdict of guilty for murder as required under the Jury Act. The question for the Judge upon examination of the Jury Act was “the circumstances a jury may return a majority verdict on manslaughter where the partial defence of provocation is in play”.

Question for the Trial Judge:

If all 12 jurors found the defendant guilty of murder, then all 12 agree provocation was not made out. If all 12 jurors found the defendant guilty of manslaughter, there was total acceptance of the provocation defence. A failure to reach total agreement on murder also means a failure to reach a unanimous verdict on manslaughter.

After examining the relevant sections of the Jury Act and their construction, noting there was no authority on the issue, the Trial Judge Found: “There is nothing to suggest that a majority verdict on manslaughter is not available where manslaughter is to be reached through the partial defence of provocation”. The Judge then gave the jury directions on a majority verdict (attached to the end of the case).

Notes for practice:

  • For a charge of Murder, where the defence of provocation has been raised, if the jury cannot reach a unanimous verdict on murder, direction for a majority verdict on the charge of manslaughter can be given.

More case notes can be found here.

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