Masciantonio Case Note and Critique Essay

1115 Words Nov 21st, 2014 5 Pages
Case Note & CritiqueMasciantonio v The Queen (1995) 183 CLR 58
Case Note
Appellant: Mr. Giovanni MasciantonioRespondent: The Queen
Court & Year: High Court of Australia 1994 - 1995
Relevant Facts: Appeal from the Supreme Court of Victoria.
19 June 1991 Giovanni Masciantonio had a heated altercation with his son-in-law Maurizio Femia.
Altercation resulted in Mr. Femia’s life.
Fatal wound being a severed aorta (known as wound 5).
Giovanni Masciantonio was convicted of murder in the Supreme Court of Victoria.
O’Bryan J trial judge.
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
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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

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