Law Weblog

Justice for the victim. A ruling that supports a proportionate appellate system

R v van Dongen and another [2005] CA 
[Murder – provocation – need not be left to the jury in all cases for example if real issue was self-defence – justice for the victim and proportionate appellate system]
DD (brothers) attacked V, intending to kill him or to cause really serious bodily injury after he allegedly attacked them with a street sign. The trial judge refused to address the jury on provocation on the basis that provocation was a speculative possibility, if it were necessary in the instant case it would be necessary in every case in which the real issue was self-defence.

Held: Refusing to disturb the jury’s decision, no injustice had been done even though a provocation direction should have been given to the jury.
“Justice in a criminal trial rightly and necessarily concentrated on justice for the defendant. However, the court was not to overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which included that those who were surely and fairly shown to be guilty of murder, and had been so found by a jury, should not escape that consequence on gossamer grounds.”

Guilty
Comment: Gossamer = Light, delicate, flimsy as in cobwebs.