Masciantonio Case Note and Critique

Topics: Court, Law, Judge Pages: 4 (1100 words) Published: November 6, 2014

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 regarding the second stage of the incident. That this failure was a miscarriage of justice. Crockett, Marks & Ormiston JJ – Court of Criminal Appeal. Crockett & Marks JJ agreed with the O’Bryan J decision. Ormiston J believed that provocation should not have been a defence at all. November 1994 appealed to High Court of Australia on special leave. Brennan, Deane, Dawson, Gaudron and McHugh JJ.

Appellant put forward that considering the circumstances of the history between Masciantonio and his son-in-law that any ordinary person would have lacked self-control. McHugh J put forward that the fatal wound could not be determined as to whether it was caused in the first instance or the second instance, and that the wording used by O’Bryan J was reflective of whether or not the jury found the Appellant had inflicted the fatal blow in the first or second instances and that if that the jury had in fact found that the appellant had inflicted the fatal blow in the first instance that provocation could not be a defence in the second instance. McHugh J concluded that the appeal should be dismissed.

Brennan, Deane, Dawson and Gaudron JJ agreed together that given the evidence, that the Appellant may have still been lacking in self-control...

Bibliography: R v Lindsay [2014] SASCFC 56.
Stingel v The Queen (1990) 171 CLR 312.
Graham Virgo (1994). Basics to Basics—Reconstructing Manslaughter. The Cambridge Law Journal, 53, pp 44-53.
"Australia: New Laws to Simplify Jury Directions." MENA Report (Dec 14, 2012). <>.
Bottomley, Stephen, Simon Bronitt, ‘Law in Context’ (The Federation Press, 4th ed, 2012).
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