R v Szabo [2000] NSWCCA 226

New South Wales Court of Criminal Appeal

CITATION : R v Szabo [2000] NSWCCA 226 FILE NUMBER(S) : CCA 60539/98 HEARING DATE(S) : 19 May 2000 JUDGMENT DATE : 11 July 2000

PARTIES : Regina v Laszlo Szabo JUDGMENT OF : Heydon JA at 1; James J at 69; Bell J at 70

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70028/97 LOWER COURT JUDICIAL Wood CJ at CL OFFICER :

COUNSEL : Crown - L M B Lamprati Appellant - S R Norrish QC SOLICITORS : Crown - S E O'Connor Appellant - T A Murphy CATCHWORDS : CRIMINAL LAW - CONVICTION - appellant contended that the trial judge failed to adequately and properly direct the jury in relation to the defence of provocation under s 23 Crimes Act 1900 (NSW) - appellant further submitted that there were irregularities in the conduct of the trial resulting in the jury being mistaken or misled and that the consequent finding that the appellant was guilty of murder was a miscarriage of justice - Held that in summing up to the jury the trial judge directed that the s 23(2)(a) test was a subjective one which called for a loss of self-control on the part of the accused - the trial judge also instructed the jury that the s 23(2)(b) test was an objective one which required the jury to consider the reaction of an ordinary person in the position of the accused - held that the trial judge did not err in summing up to the jury and that it was reasonably open to the jury to find that there was no provocation. - Held that there was nothing in the trial judge's summing up which had the potential to mislead the jury and consequently there was no miscarriage of justice. LEGISLATION CITED : Crimes Act 1900 Gipp v R (1998) 194 CLR 106 Green v R (1997) 191 CLR 334 Jones v R (1997) 191 CLR 440 M v R (1994) 181 CLR 487 CASES CITED: Masciantonio v R (1995) 183 CLR 58 Melbourne v R (1999) 164 ALR 465 R v BRS (1991) 148 ALR 101 R v D (1996) 86 A Crim R 41 Simic v R (1980) 144 CLR 319 Stingel v R (1990) 171 CLR 312 DECISION : Appeal dismissed