CRIMINAL LAW - Sentence - Murder - Whether judge gave insufficient weight to applicant's age in setting non-parole period - Application refused.

1 Neave and Harper JJA, whose reasons for judgment I have had the advantage of reading in draft, have set out the general circumstances of this proceeding, the main arguments of counsel, relevant passages from the judge's charge, and the grounds of appeal. I need not, in the circumstances, revisit those matters.

2 I agree with their Honours, for the reasons which follow, that the applications for leave to appeal against conviction and sentence should be refused.

3 Concerning grounds 4 and 8 on the conviction application, and the application for leave to appeal against sentence, I respectfully agree with what their Honours have said and have nothing to add.

4 Grounds 1 and 3 are interrelated. But each of them requires discrete consideration. Ground 1 contends that the judge erred by not leaving common law self-defence to the jury, but only the defence in s 9AC of the Crimes Act 1958. Ground 3 asserts that the judge misdirected the jury by directing it, in effect, that the starting point for consideration of 'defensive homicide' was a belief held by the applicant.

5 The main argument for the applicant upon ground 1 was that the defence created by s 9AC is more restrictive than common law self-defence. For that reason, the section should not be read to exclude common law self-defence except if there were plain words; and here there were none. Counsel acknowledged that there would be ambiguities whichever way s 9AC was read.

6 In my opinion s 9AC does operate to exclude common law self-defence in the case of murder. That is so for these reasons, which focus upon the words of the statute.

7 First, it is too simplistic to say that the statutory defence is more restrictive than the common law defence. In some ways, it is more restrictive. In particular, in terms it requires a belief that the conduct engaged in is necessary to meet a threat of infliction of death or really serious injury. It thus makes no allowance for a belief of necessity for action to meet a less serious perceived threat. On the other hand, the defence set up by the section is in other ways more liberal than common law self-defence. Thus (1) it focuses upon the (asserted) subjective belief of the accused, and so applies even if there are no reasonable grounds for that asserted belief; (2) it explicitly extends to defence of another. This was beyond the precise elaboration of self-defence in the context of homicide by Wilson, Dawson and Toohey JJ in Zecevic v The Queen,[1] although defence at least of a close family member could have constituted self-defence to homicide at common law; and (3), the defence will run in some circumstances where the threat of harm is not immediate - see s 9AH (1)(c); and despite the use of force being excessive - see s 9AH(1)(d).

8 To the extent that statutory self-defence is more restrictive than is common law self-defence, the intrusion in the present case should not be regarded as very great. So, even if there was a strong presumption these days against giving legislation an effect which intrudes upon an accused's rights, I doubt that the presumption would assist the applicant's argument. The first proposition stated by Mason J in Viro v The Queen,[2] a homicide case, referred to an accused reasonably believing that an attack which threatened him/her 'with death or serious bodily harm' was being or was about to be made. The mention of 'death or serious bodily harm' was omitted from the simplified formulation of the defence, applicable in all cases, stated in the plurality judgment in Zecevic.[3] But it was there recognised that in a case of homicide it was unlikely that the 'reasonable grounds' element of self-defence would be made out unless there was a perceived threat of death or serious injury.[4] So, although a judge should not have so directed, a comment to that effect would not have been precluded. What s 9AC does, by its reference to an accused believing that the conduct was necessary to defend himself/herself or another 'from the infliction of death or really serious injury' - although neither the reasonableness of the belief allegedly held nor the reasonableness of the grounds for such belief fall for consideration - is to import part of the first proposition in Viro, and in doing so reflect reality of the situation as it was recognised in Zecevic.

9 Second, the structure of the statute favours a conclusion that s 9AC was intended to be exhaustive. On their face, the changes effected by ss 9AB to 9AJ create a scheme which addresses the various possibilities giving rise to a defence of self-defence in a case of homicide. A regime is created which differentiates between the criteria of the defence with respect to murder and manslaughter. In neither situation is the common law statutorily reproduced. But the defence in the two situations is not identical. Particularly, that is because the 'reasonable grounds' aspect of the defence is separated out in the case of murder, but left integral to the defence in the case of manslaughter.

10 Third, the further effect of ss 9AB-9AJ is that the criteria for self-defence in the cases of each of murder and manslaughter differ from the content of that defence in the case of all other offences.[5] For there, the common law continues to apply. This tends to emphasise the 'sealing off' of the defence by reference to its statutory content in the case of the homicide offences.

11 I should refer to another matter raised in argument. It was founded on the reference in s 9AC to conduct 'that would otherwise constitute murder'. In R v Parr,[6] Whelan J concluded, in a passage cited by Neave and Harper JJA at [57] in their reasons, that this phrase contraindicated the survival of common law self-defence. For the reasons which follow, I respectfully disagree.

12 If the common law test survived then, consistently with the submission of applicant's counsel, the position at common law would first require consideration. If a jury concluded that the Crown had not excluded common law self-defence, s 9AC (likewise s9AD) would be irrelevant; the accused would be found not guilty of murder. But if the jury found that the Crown had excluded common law self-defence, it does not necessarily follow that s 9AC would have no work to do. At common law, self defence might have failed for a reason - for instance, 'reasonable grounds' - which is part of the common law test, but which is not part of s 9AC 'self-defence'.

13 It might be argued that the position is made doubtful by s 9AD, which also refers to 'circumstances that ... would otherwise constitute murder'. But s 9AD is intended to flow on from s 9AC; and so it focuses upon conduct which is saved by s 9AC from being murder.

14 In the event, I have not relied upon the particular reasoning advanced by Whelan J in Parr when concluding that common-law self-defence has not survived the enactment of Subdivision 1AA in cases of murder and manslaughter.

15 Before the insertion of Subdivision 1AA of Part 1, Division 1 of the Crimes Act by Act No.77 of 2005, self-defence, in Victoria, was a common law defence. It could be said, simply but inaccurately, that its starting point was a belief held by an accused. The inaccuracy would lie in the fact that, as Wilson, Dawson and Toohey JJ said in Zecevic -

Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence does not rest on the accused. Since Woolmington v Director of Public Prosecutions, it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: Director of Public Prosecutions v Walker.[7]

16 There was evident difficulty in formulating a direction which accommodated the problem of belief in the context of the ultimate burden of proof. The six step formulation of the defence by Mason J in Viro[8] was an attempt to do so. But, as his Honour acknowledged in Zecevic, the problem was not thereby solved:

With the benefit of hindsight it can be seen that it was a mistake to attempt to state the law of self-defence in a form which sought to take account of the onus of proof. This attempt led to complexity which might otherwise have been avoided. And the same comment might be made about the inclusion in the formulation of three separate elements of reasonableness.[9]

17 It was in that state of affairs that the 'question to be asked' which was 'in the end quite simple' was agreed upon in Zecevic. It sought to accommodate the problem by propounding, in effect,[10] a direction by which it was stated, inter alia, that if the accused 'had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal'.

18 Self-defence post-Zecevic, though not without all difficulties, was satisfactorily explained to juries; and that is still the situation with respect to non-homicide offences.

19 Unfortunately, however, s 9AC uses the phrase 'while believing'; and s 9AD refers to an accused not having 'reasonable grounds for the belief referred to' in s 9AC. Read literally, s 9AC could suggest that it is now for an accused to establish that he/she held the asserted belief; and, read literally, s 9AD could suggest that an accused must prove that he/she had reasonable grounds for in fact holding that belief. The same might be said of s 9AE, which deals with manslaughter and self-defence.

20 I do not accept that the sections should be read in such a way. So to construe them would involve radical changes in the criminal law to the disadvantage of accused persons; disadvantages, moreover, in the case of only one defence, and that only with respect to very few offences. Such changes were not hinted at by the relevant Minister. It should not be concluded that they were effected by an unintended sidewind. Neither counsel submitted that such a thing had occurred. Indeed, the gist of the applicant's submission on ground 3 was that the judge had misdirected the jury by referring to a 'belief held' in the context of s 9AD. But if the operation of s 9AD did depend upon the accused having established, at the outset, that a belief was held (and the same could be said of s 9AC), then there would have been no misdirection in the passages in the charge upon which counsel relied. In truth, then, there was no submission that s 9AD ought be read literally.

21 In my view, it is plain that neither s 9AC nor s 9AD addresses the issue of ultimate onus of proof when a defence of self-defence is sufficiently raised in a prosecution which arises out of a homicide. There are two consequences: first, the ultimate onus, with respect to those elements of the defence which are statutorily reproduced, remains as it is at common law. Second, reference to 'the belief' in s 9AD must be a reference to the asserted belief of the accused in respect of which the jury has concluded, in the context of s 9AC, that the Crown failed to discharge the burden of proof resting upon it - either because the jury is satisfied that the accused actually held such belief, or else because the jury is not satisfied that the accused did not hold it.

22 It follows that the learned judge would have erred had the import of her directions to the jury been that, regardless by which of the two routes mentioned in the preceding paragraph the jury had decided that the Crown had not negatived self-defence, s 9AD could have no operation unless the jury affirmatively concluded that the asserted belief was held.

23 The learned judge in substance instructed the jury that if the defence created by s 9AC was made out then it would be necessary to consider the application of s 9AD. The directions which her Honour gave with respect to s 9AC were straightforward and correct. They emphasised the burden which rested on the Crown. They admitted of the jury being not satisfied that the Crown had negatived self-defence even though it was not positively satisfied that the applicant held the belief which he asserted.

24 With respect to s 9AD, the judge directed the jury, both in writing and orally, that it would need to consider whether the Crown had proved beyond reasonable doubt that that the applicant 'did not have reasonable grounds for his belief' that what he did was necessary to defend himself or another from being killed or really seriously injured. As to onus, and as to the objective characteristic of the inquiry, what her Honour said was impeccable.

25 The directions cited by Neave and Harper JJA at [75], [77] and [78] contain, however, some eight references by the learned judge, in the context of defensive homicide, to 'his belief'; and, as well, references to the question whether what the applicant believed was a belief held on reasonable grounds.

26 Two questions arise. The first is whether there is a risk that the jury understood from the judge's directions that - (a) it was necessary to reconsider, in the context of s 9AD, the question whether the applicant in fact held the asserted belief; and (b), if that was necessary, then it was for the applicant to establish the existence of such belief before the section could have operation. The second is whether the jury might have understood the directions as being built upon an assumption that it had found, in the context of s 9AC, that the accused did hold his asserted belief. What then if the Crown had simply failed to exclude the reasonable possibility that the applicant did hold such a belief?

27 Upon the first of those questions, I consider that there was no such risk. The judge constantly stressed, in the context of s 9AC, that the Crown bore the onus of establishing a negative; and that, if it failed to do so, then the applicability of s 9AD must be considered. Failure by the Crown to prove the negative, in the context of s 9AC, would have admitted of the two possibilities which I have earlier mentioned. There is want of reality in a conclusion that the jury would have understood that it had an obligation to re-investigate, in the context of s 9AD, a matter about which it had already made a determination; still less that when doing so it must change the party upon whom the onus of proof rested - the later section casting an affirmative burden upon the applicant to establish that he held the asserted belief. The judge made it clear in her charge, quite apart from what she said in respect of s 9AC, that the applicant carried no burden of proof in respect of any issue in the trial. Further, in the specific context of s 9AD, she explained that the applicant did not carry any such burden.

28 I turn to the second question. I consider it highly unlikely that the jury would have taken the judge's direction to mean that it must not go to s 9AD if it - (1) found that the Crown had not excluded self-defence, but (2) did not positively conclude that the applicant held the belief which he asserted. The only way that the jury could have avoided going to s 9AD was by reasoning that, in the circumstances just mentioned, the section was inapplicable because it had not positively concluded that the applicant held his asserted belief; and/or because a belief not positively concluded to have been held could not be examined for 'reasonable grounds'. But for the jury to have so reasoned, and not to have gone to s 9AD, would have required it to disobey the judge's explicit direction that if s 9AC self-defence was not excluded by the Crown, then the jury must consider s 9AD.

29 I should say something about the jury's consideration of s 9AD had it found that the Crown had not excluded s 9AC self-defence. If the jury had found, in the context of s 9AC, that the Crown had not excluded self-defence because the applicant in fact held the belief which he asserted, then there was a belief to be tested for reasonableness, the Crown carrying the burden. Section 9AD would comfortably work in that situation. But if the jury had found only that the reasonable possibility that the applicant held that belief had not been excluded, then - assuming the jury went to s 9AD as directed - what was to be tested against the reasonableness criterion? If the jury treated her Honour's references to 'his belief' as references simply to the belief which the applicant asserted he held, then again the s 9AD question would have posed no problem. But is there a risk that, in those circumstances, the jury might have reasoned, though within s 9AD, that there was no belief to assess for reasonableness? And what would have been the consequence of such reasoning?

30 In my opinion, there is no risk that the jury would have so reasoned. I consider that, for the reasons which I have explained, the jury would surely have acted on the footing that - (1) if it found, for whatever reason, that the Crown had not excluded the reasonable possibility that the applicant had acted in self-defence, then it must go on to consider s 9AD; and (2), for the purposes of that section, it was not required to re-investigate the matters which it had led it to conclude that the Crown had not excluded self-defence - still less attach a burden of persuasion to the applicant, this being contrary to the judge's repeated directions that he had to prove nothing.

31 In that event, as I perceive it, the jury would have rightly assumed that what had to be tested for reasonable grounds was the applicant's asserted belief. A moment's thought would have shown the jury the foolishness of approaching the matter in any other way. Was it to be supposed that a belief held to have existed, absent want of reasonable grounds, would yield a finding of guilt of defensive homicide; but that a belief the existence of which had not been excluded would yield an acquittal of defensive homicide because the reasonable grounds of a non-existent belief were necessarily unexaminable?

32 In the event, when all of the judge's directions with respect to ss 9AC and 9AD are brought to account, and as well her Honour's repeated instruction that the applicant carried no burden of proof, I consider that there was no misdirection concerning s 9AD. That is so despite her Honour's references to the applicant's belief - those references grounded, no doubt, in the unnecessarily difficult task of marrying the inapt language of the legislation with the burden of proof.

33 It remains to mention three matters in connection with ground 3. First, ss 9AC and 9AD are difficult provisions. If only by matching their language to legal principle, they could be much better expressed. Further, there are problems such as are mentioned by Neave and Harper JJA at [96]; and as well a likely problem of charging upon self-defence where the accused faces alternative counts of attempted murder and intentionally causing serious injury. Parliament should, with respect, address these issues. If it does not do so, more costly appeals can be confidently predicted.

34 Second, so long as ss 9AC and 9AD remain in their current form, it is desirable that a direction be given such as Neave and Harper JJA propose at [95]. In my opinion, its language meets the complex needs of the legislation as economically as is possible.

35 Third, in light of the conclusions reached by Neave and Harper JJA and by me, the question does not arise whether, if there had been a defect in the judge's charge with respect to s 9AD, Gilbert v The Queen[11] and Gillard v The Queen[12] could be distinguished so as to sustain the conviction. I doubt that those authorities could be distinguished. But I prefer to express no concluded opinion about the matter.

36 The applicant, Frank Babic, was found guilty of murdering Raphael Innaimo by a Supreme Court jury. On 20 June 2008, after hearing a plea in mitigation, the learned judge sentenced the applicant to life imprisonment with a non-parole period of 28 years.

37 The applicant now applies for leave to appeal against his conviction and sentence.

38 The killing of Mr Innaimo occurred on 26 June 2006 at a warehouse located a short distance from the Edinburgh Castle Hotel in Brunswick, where the applicant was then living. The applicant and Kelvin Thomas travelled around the city and the suburbs earlier in the day and returned to Brunswick in the early evening. A witness spoke to the victim between 6.00 pm and 7.00 pm that evening, indicating that his death occurred after that time.

39 The victim operated a retail store known as the Recycle Warehouse where he also lived. The applicant and Mr Thomas entered the private part of the victim's store and were confronted by him in the lounge area. The victim was only wearing trousers. He apparently believed that the applicant and Mr Thomas were attempting to burgle his premises. Some time afterwards Mr Thomas left the premises through the back door of the warehouse and went to the Brunswick Police Station. He spoke to the police and said that he did not like what was happening and that some-one might get hurt. CCTV footage showed him entering the police station at 8.46 pm, speaking to two police members, waiting for a time and then leaving.

40 What transpired after the victim confronted the applicant and Mr Thomas was a matter of dispute. The trial judge sentenced the applicant on the following basis:

I act upon the basis that the deceased man punched you at least once. You had no injuries and I am not satisfied that he inflicted any real injury upon you. What ensued from there is not totally known but ultimately what I am able to say is that the deceased man received a ferocious beating over a period of time. I am unable to say how long that took. But the forensic evidence indicates that he was beaten with a metal fire poker and he sustained at least 55 injuries consistent with being inflicted by that weapon. He also had electrical flex wrapped around his neck tightly and more loosely around his body and legs.

The cause of death was multiple head and neck injuries. There were punched out regions in the cartilage of the larynx all the way through on the left side which punched a hole into the right side. This ultimately created an air embolism that went to the heart and that caused the heart ultimately to be unable to function. There was also a separate blow to the superior corneaux. The other injury of significance was the ligature around the neck. The pathologist was of the view ultimately that Raphael Innaimo died of an air embolism.

It was a savage and sustained beating of this man. It could be described as almost frenzied and it is clear from your lack of injuries that the deceased man was unable to put up any form of substantial resistance. You obviously also wandered about the premises, at least looking for the electrical flex and other slightly odd items, such as girdles and other items of clothing. ...

41 The applicant then went to the Safeway Supermarket located behind the victim's premises. His hands and clothes were covered in the victim's blood. Police were called after he was observed behaving strangely. Paramedics, who arrived shortly after the police, initially believed that the applicant himself was gravely injured, because of the amount of blood dripping from his clothes. The police took him to hospital without making any enquiries about the source of the blood covering his hands and clothing. There it was concluded that he had no injuries of any consequence. It was only the next day, when the body of the deceased was discovered, that the applicant was arrested.

42 The Crown case was that the applicant had killed the victim while he was in a rage. In his opening address the applicant's counsel said that there was no dispute that the applicant went to the premises, but raised questions as to whether the deceased had suicided, whether Mr Babic had played any part in his death and if so whether he was acting in self-defence.

43 Mr Thomas, who had a poor memory because of an acquired brain injury and had been drinking on the day of the killing, gave evidence that the victim was the instigator of the attack. Although he gave conflicting evidence during cross-examination and re-examination, he said at one point that the victim had threatened to get a knife to kill the applicant, that the poker was first obtained by the victim, and that the victim had punched and pushed the applicant. In her jury charge her Honour commented on problems about the accuracy of Mr Thomas's memory and his intellectual capacity. She told the jury that that as a witness, Mr Thomas had 'some problems that perhaps other witnesses [did] not', and that they should scrutinise his evidence very carefully before relying on any of it.

The Learned Trial Judge erred in restricting the jury's consideration of common law self defence in respect to murder to be a consideration of whether the Applicant was defending himself from the threat of death or really serious injury.

45 This ground was directed at the judge's directions on self-defence and on the offence of defensive homicide. Counsel for the applicant submitted that the judge incorrectly held that Subdivision 1AA of Division 1 of Part 1 ('Subdivision 1AA') of the Crimes Act 1958 (the 'Act') had abolished common law self-defence. As a consequence her Honour had directed the jury in accordance with the test for self-defence in s 9AC of the Act, but had not directed the jury on common law self-defence. Section 9AC of the Act provides that:

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

46 Counsel submitted that Subdivision 1AA, which was introduced into the Act by the Crimes (Homicide) Act 2005, did not codify the law of self-defence and that the direction given by her Honour was inconsistent with the common law defence of self-defence as articulated in Zecevic v Director of Public Prosecutions.[13] In Zecevic[14] the High Court held that where an accused relied on self-defence as a defence to murder the jury should be directed that the question to be determined was whether the Crown had failed to prove beyond reasonable doubt that the 'accused [had not] believed upon reasonable grounds that it was necessary in self-defence to do what he or she did'.[15]

47 Counsel for the applicant conceded that differing views had been expressed in the trial division of this Court as to whether common law self-defence had been abolished by s 9AC of the Act.[16] However he relied on the decision of Coghlan J in Gould[17] that it did not do so. In Gould[18] Coghlan J said that although it was 'the logical conclusion' that Subdivision 1AA codified self-defence, Parliament should not be taken to have intended it to disadvantage a person charged with murder. If the legislation was interpreted as abolishing common law self- defence it would deprive an individual who would otherwise have had a good common law defence from relying on self-defence.[19] Counsel for the applicant further contrasted the language of s 3B of the Act, which abolished provocation as a partial excuse for murder, and the language of the sections dealing with self-defence, which did not expressly abolish common law self-defence.

48 Counsel for the applicant submitted that her Honour's jury direction had resulted in a miscarriage of justice, because the defence case was that the applicant killed the victim in response to a threat, which fell short of a threat of really serious injury or death. Although this could have been a defence to murder at common law, it was not a defence to murder under s 9AC, because the section required the accused to have believed the conduct was necessary to protect himself from death or really serious injury.[20]

49 Counsel for the Crown relied on the reasoning of Whelan J in Pepper[21] and Parr[22] in support of the submission that Subdivision 1AA of the Act abolished common law self-defence in the context of murder and manslaughter.

50 He submitted that this interpretation was compelled by:

• the internal construction of Subdivision 1AA of the Act;

• the background to the enactment of the legislation and other aids to interpretation, including the Victorian Law Reform Commission's (the 'Commission') Final Report on Defences to Homicide[23] and the Attorney-General's second reading speech,[24] to which Whelan J referred in Pepper[25] and Parr;[26]

• the transitional provision in s 603 of the Act, which was said to support the interpretation that the common law position was affected to the detriment of offenders.

51 In response to the argument that provocation was abolished by s 3B and that there was no similar provision abolishing common law self-defence, counsel for the Crown submitted that this was explicable by the fact that self-defence was codified in ss 9AB to 9AH and 9AJ, rather than being abolished.

52 In our opinion the purpose of Subdivision 1AA of the Act was to replace existing common law defences to homicide, including self-defence, with statutory defences and in the case of excessive self-defence, with a new offence.

53 We turn first to the words of ss 9AC and 9AD, read in the context of Subdivision 1AA, which is headed 'Exceptions to Homicide Offences'. Other provisions in the Subdivision include s 9AG, which abolishes the common law rule that the defence of duress does not apply to homicide offences, and s 9AI which applies the doctrine of necessity to homicide offences. Sections 9AC to 9AE are headed respectively 'Murder-"Self Defence"', 'Defensive Homicide' and 'Manslaughter-"Self Defence"'. Both the Division heading and the section headings are part of the Act.[27] These headings support the view that the legislation was intended to codify defences to homicide, so that common law defences no longer apply.

54 In Gould[28] Coghlan J relied on the principle that statutes creating criminal offences are to be construed strictly,[29] in support of his decision that the common law defence of self-defence to murder or manslaughter had not been abolished. In Parr,[30] Whelan J pointed out that this principle was no longer applied as strictly as had been the case in the past. He said that:

The formulation of the rule which is now the generally accepted one is that of Gibbs J (as he then was) in Beckwith v The Queen.[31] The relevant passage was recently cited by Nettle JA in RJE v Secretary to the Department of Justice & Ors[32] and by French CJ and Kiefel J in ACCC v Channel Seven Brisbane.[33] Gibbs J said:

'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... This rule is perhaps one of last resort.'

If there is ambiguity in the statute itself, or if there is a genuine choice between two competing interpretations, the ambiguity must always be resolved, and the choice must always be made, in favour of the accused. In my view that is not the position here. I do not consider that there is ambiguity in the legislation, nor, given the legislation's comprehensive provisions, that there is any choice to be made. The rule of construction cannot itself be the source of the ambiguity or the choice.[34]

55 We agree with his Honour's view that there is no ambiguity as to the purpose of the legislation. Some provisions in Subdivision 1AA advantage the accused. For example sections 9AG (duress) and 9AI (sudden and extraordinary emergency) give an accused the opportunity to rely on defences to homicide which did not exist at common law. Similarly s 9AH allows an accused who kills a person who has previously subjected the accused to family violence, to rely on self-defence, even if the threatened harm is not immediate and the response involves the use of excessive force.

56 The abolition of provocation may disadvantage some accused; whilst other provisions may make it less difficult for the Crown to disprove a particular defence. For example s 9AE, which precludes a person charged with murder or manslaughter from relying on self-defence in response to lawful force, and s 9AJ, which deals with intoxication, may prevent an accused from relying on self-defence in some circumstances. Having regard to the legislative context of s 9AC, any presumption that Parliament could not have intended to disadvantage an accused is rebutted.

57 In Parr,[35] Whelan J also relied on the fact that ss 9AC and 9AD applied only where the person's conduct 'would otherwise constitute murder' in support of the conclusion that common law self-defence had been abolished. In relation to s 9AC his reasoning was as follows:

It seems to me that the express provisions of s 9AC make it clear that there is to be no continued operation of the common law. If the common law were to continue to operate, then conduct which was not murder at common law, because the Crown was not able to prove there was no lawful justification or excuse on the basis of common law self defence, would not be conduct which would 'otherwise constitute murder'.

Thus, if s 9AC is to operate according to its terms in circumstances where the common law still applies, s 9AC would be considered only after self defence at common law had been negated. This cannot be Parliament's intention.[36]

58 As Ashley JA says in his reasons, conduct to which s 9AC applies, would, in some situations, 'otherwise constitute murder' at common law. However like Whelan J, we consider that the language of the section indicates that parliament could not have intended that s 9AC should operate only after self-defence at common law has been negated.

59 Although it is unnecessary to rely on extrinsic materials to support the conclusion that the Act abolishes common law self-defence to murder,[37] our view is reinforced by the history of the Commission's reference on Defences to Homicide, which led to the introduction of the legislation.

60 On 21 September 2001 the Commission was given a reference by the Attorney-General to examine the law of homicide and consider, among other things, whether 'it would be appropriate to reform, narrow or extend defences or partial excuses to homicide including self-defence, provocation and diminished responsibility'.

61 In 2003 the Commission published an Options Paper which contained the results of a study of murder cases and the defences which persons accused of that offence relied upon in those cases.[38] In a section headed 'Why Reform Self Defence' the Commission argued that the law as it then stood was gender biased, in the sense that a man who killed another person in a fight was often able to rely on self-defence, whilst a woman who had killed a domestic partner after having been subjected to domestic violence over a lengthy period, was likely to have greater difficulty in relying on that defence. In addition the Commission's research showed that men who killed their female partners (sometimes in the context of a history of violence) frequently relied on the partial excuse of provocation to reduce murder to manslaughter.

62 The Commission's Final Report[39] recommended that the 'law of self-defence and other defences to homicide should be codified in Victoria and included in a new part in the Crimes Act 1958'.[40] It then set out a series of recommendations on the new provisions which should be made on self-defence, including recommendation 9, which was as follows:

The partial defence of excessive self defence should be reintroduced in Victoria. The partial defence should apply:

• if a person uses force that causes or contributes significantly to the death of another; and
• the conduct is not a reasonable response in the circumstances as the person perceives them; but
• the person believes the conduct is necessary to:

(a) defend himself or herself or another person; or

(b) prevent or terminate the unlawful deprivation of his or her liberty or a liberty of another person.

In these circumstances the person is not criminally responsible for murder but on a trial for murder is to be found guilty of manslaughter if a person is otherwise criminally responsible for manslaughter.

The Report contained a draft Bill to implement its recommendations.

63 The Crimes (Homicide) Act 2005 amended the Act so as to implement most of the recommendations in the Commission's Final Report. It included changes to the

crime of infanticide,[41] the introduction of duress and necessity as defences to homicide,[42] the abolition of provocation as a partial excuse for murder,[43] provisions dealing with how intoxication should be taken into account in determining whether a defence applied,[44] and provisions dealing with homicide occurring in the context of family violence.[45]

64 The amending legislation took a more limited approach to self-defence to murder than was recommended by the Commission, by providing that the defence of self-defence to murder required the accused to believe the conduct was necessary to defend himself or herself or another person from the infliction of death or really serious injury.[46] In the case of manslaughter, however, the reforms were consistent with the Commission's recommendations.[47] The Commission recommended that excessive self-defence should be reintroduced as a partial excuse to murder which would reduce that offence to manslaughter. Instead s 9AD introduced a new offence of defensive homicide. Despite the fact that the government did not implement every recommendation made by the Commission, we consider that it is clear that the Act was intended to codify defences to homicide.

65 That view is also supported by the Attorney-General's second reading speech.[48] The Attorney-General first referred to the fact that 'all Australian jurisdictions, except Victoria, have legislation which defines self-defence'. He then referred to the common law test as stated by the High Court in Zecevic[49] and said that he would explain how the Bill affected the substance of that test. Later in his speech he said that 'this Bill will change the way self-defence operates in relation to murder'.

66 Mr Hulls also said that the Bill would separate the 'belief' and 'reasonable grounds' components of the common law test into two separate tests and that the defensive homicide provisions will:

... ensure that the law of self defence appropriately measures the culpability of those people who act in the genuine belief that it is necessary to do so to defend themselves or another person. The culpability of such a person is substantially different to that of a person who kills without such a belief. However, if there are no reasonable grounds for his or her belief, the Bill reflects the importance that we attach to human life and ensures that such a person is guilty of the very serious offence of defensive homicide.[50]

67 He went on to say that defensive homicide was 'similar in some ways to the common law rule of excessive self-defence' (that is, the common law rule prior to its abolition by Zecevic).[51]

68 For these reasons we consider that Whelan J's view in Parr[52] that 'the provisions of the Act reveal an intention on the part of Parliament to completely and exclusively say what the law shall be governing self-defence in homicide cases' was correct. It follows that her Honour was not required to direct the jury on common law self-defence to murder.

69 Our conclusion on the effect of the legislation makes it unnecessary to consider whether counsel for the Crown correctly conceded that the common law after Zecevic[53] permitted a person accused of murder to rely on self-defence as a justification for the killing, even though that person did not believe on reasonable grounds that the killing was necessary to save him or herself or another person from death or serious injury.[54] Although we have some doubts as to whether Zecevic[55] is authority for that proposition, that question is no longer relevant in Victoria.

The Learned Trial Judge erred in her directions to the jury in respect to Defensive Homicide.

71 During the hearing of the appeal counsel for the Crown informed the Court that the trial judge had given both written and oral directions to the jury, but that no copy of the written directions could be found.

72 After the conclusion of the hearing the Court ascertained that it was her Honour's practice to provide pro forma written directions on murder, manslaughter and defensive homicide and was told that pro forma directions of this kind would have been given to the jury in this case although the actual written directions used at Mr Babic's trial could not be found. Counsel were given a copy of the pro forma directions and invited to make further submissions. At a further hearing counsel advised the Court that they did not object to determination of the appeal on the basis that written directions had been provided to the jury in the form customarily given by the trial judge.[57]

73 The written directions, which included numbered questions for the jury to answer, set out the elements of murder and said that the fourth element was whether the prosecution had proved beyond reasonable doubt that [the accused] did not believe it was necessary to do what he did to defend himself or another from being killed or really seriously injured. They then set out questions for consideration by the jury relating to these elements. The question to be considered in relation to 'statutory self-defence' was numbered 4 and was in the following terms:

1. Has the prosecution proved that the accused did not believe that it was necessary to do what he did to defend himself or another from being killed or really seriously injured?

74 The jury were asked to consider the circumstances as perceived by the accused. They were told that if the question set out above was answered 'yes' then the accused was guilty of murder, but that if the answer was 'no' then he was not guilty of murder, but that the jury then had to consider whether he was guilty of defensive homicide.

75 The written directions on defensive homicide, which included a fifth question from the jury were set out under two headings, as follows:

Defensive Homicide

The offence of defensive homicide should only be considered if you answered 'Yes' to Questions 1, 2 and 3 above, and 'No' to question 4. [These relate to the elements of murder_._]

Before you can convict [the accused] of defensive homicide, the prosecution must prove, beyond reasonable doubt, that:

[The accused] did not have reasonable grounds for his belief that what he did was necessary to defend himself or another from being killed or really seriously injured.

Defensive Homicide

5. Has the prosecution proved that [the accused] did not have reasonable grounds for his belief that what he did was necessary to defend himself or another from being killed or really seriously injured?

Consider - What were the circumstances as perceived by [the accused]?

76 The jury were told that if question 5 was answered 'yes' then the accused was guilty of defensive homicide, but if it was 'no' he was not guilty of defensive homicide.

77 In charging the jury her Honour explained that her oral directions should be read alongside those she had reduced to writing. When in her charge she came to defensive homicide she said:

If you find that the Crown have not proven that the accused was [not][58] acting in self-defence when he killed Raphael Innaimo, then you must consider whether he is guilty of the alternative offence of defensive homicide.

When explaining the law of self-defence in relation to murder I told you that it did not matter if you thought the accused's actions were unreasonable, because the question you needed to consider was simply whether the accused believed his actions were necessary in the circumstances. According to the law people who kill in the belief that what they are doing is necessary to defend themselves from death or really serious injury do not commit murder even if their belief is unreasonable.

However, people who kill in the belief that what they are doing is necessary in self-defence will be guilty of the offence of defensive homicide if they do not have reasonable grounds for their belief. So the first part that you are looking at is the genuineness of the belief and this is about the reasonableness of the belief.

It is only people who believe on reasonable grounds that their actions are necessary in self-defence who are not held criminally responsible for the killing. As with self-defence it is for the prosecution to prove beyond reasonable doubt that the accused did not have reasonable grounds for his belief in the necessity of his actions. Before you can find the accused guilty of defensive homicide you must be satisfied that the prosecution has proven beyond reasonable doubt all of the elements of murder, one, two and three that we have referred to, and that he was acting in self-defence, and that Frank Babic did not have reasonable grounds for his belief that what he did was necessary in self-defence.

In determining whether Frank Babic had reasonable grounds for his belief in the necessity of his actions you must again consider the circumstances as Frank Babic perceived them to be at the time he killed Raphael Innaimo. You must determine whether the prosecution has proven that there was no reasonable basis for the accused to have believed it was necessary to act in the way he did in response to the threat he believed he faced. It does not matter if Frank Babic was mistaken about that threat, as long as there were reasonable grounds for his belief about the need to respond to the threat in the way he did in all of the circumstances as he perceived them to be. When examining this issue this is an objective examination. When you are looking at the belief that was held by Mr Babic, that is a subjective examination. ...

When examining this issue you view it from the belief that you perceive is the accused man's belief, and then you ask yourself would a reasonable person in the position of the accused man, not taking into account the consumption of alcohol or drugs in any way, it is a reasonable person without consumption of alcohol or drugs, have found that he had reasonable grounds for that belief? A reasonable person is an ordinary person with the normal responses of an ordinary person to situations such as this, situations of violence or things that occur. A person of ordinary firmness.

If you are not satisfied that the prosecution has proven that the accused did not have reasonable grounds for his belief, that what he did was necessary in self-defence, then you must find Frank Babic not guilty of defensive homicide. It is only if you are satisfied that the prosecution has proven this beyond reasonable doubt that you may convict him of defensive homicide, as long as you are also satisfied that all of the elements of murder have been proven.

In relation to looking - and I have omitted this so I will just go back - in relation to looking at the issue of self-defence, you are entitled to look at the issue of intoxication at the time that you are examining the belief of Mr Babic, and that is the subjective situation, but not when you are examining the objective, that is the reasonableness of it. So intoxication has a relevance in respect of Mr Babic's belief because that is how he was, however you find him to be in terms of intoxication, that is part of who he was that night, so of course it is part of the subjective material.

78 The following day her Honour referred again to the relationship between murder and defensive homicide. She said that:

To summarise. Even if you decide that all of the elements of murder have been proven beyond reasonable doubt, you may find Frank Babic not guilty of that offence if you find he was acting in self-defence. Before you can find Frank Babic guilty of murder you must therefore be satisfied that the prosecution has proven beyond reasonable doubt that all of the elements of the offence have been met and that Frank Babic did not believe - all of these things are expressed in a negative. It is an unfortunate way of doing it, but it must be expressed that way because it is the Crown who must prove and that is why it comes in this rather awkward manner. When you are looking at the documents you need to understand why it is written in that way, it is written in sometimes almost a double negative, which makes it even harder, but it is because it is to make it clear that the onus or burden does not shift from the Crown.

The prosecution have to prove beyond reasonable doubt that, firstly, all the elements of the offence have been met and, secondly, that Frank Babic did not believe that it was necessary to do what he did to defend himself from the infliction of death or really serious injury.

If you find that the Crown have proven those matters, then you should find Frank Babic guilty of murder. If you find that these matters have not been proven, then you must find Frank Babic not guilty of murder.

However, a finding that Frank Babic is not guilty of murder is not the end of the matter, as you will recall, because if you decide that Frank Babic is not guilty of murder because he was acting in self-defence, then you must consider whether he is guilty of the offence of defensive homicide.

To find Frank Babic guilty of defensive homicide you must be satisfied that the prosecution has proven beyond reasonable doubt that, firstly, all of the elements of murder have been met, and that Frank Babic did not have reasonable grounds for his belief that it was necessary to do what he did to defend himself from the infliction of death or really serious injury.

If you find those matters have not been proven by the Crown then you would find Frank Babic not guilty of defensive homicide.

79 Counsel for the applicant submitted that in the first passage from her Honour's jury directions, the judge repeatedly referred to the accused believing that he was acting in self-defence. But (the submission continued) a conclusion by the jury that the applicant believed that he was acting in self-defence (or, to put it more succinctly, that he had a self-defence belief) was only one of two possible conclusions or positions either of which, if reached by the jury, would require a verdict of not guilty of murder. The other was that the jury were not satisfied beyond reasonable doubt that the applicant did not have a self-defence belief. If, therefore, the jury either came to the positive conclusion that the applicant did have a self-defence belief, or if they were not satisfied to the requisite standard that the applicant did not have a self-defence belief, they would be bound to return a verdict of not guilty of murder, and turn then to consider whether the Crown had proved that he was guilty of defensive homicide.

80 The effect of the repeated references to the applicant believing that he was acting in self-defence, and the absence at this point of any accompanying reference to the possible conclusion that the prosecution had failed to prove that the applicant did not have that belief, it was submitted, was that in the context of defensive homicide the jury may have believed it necessary that the applicant prove that he had such a belief, before it could consider whether there were reasonable grounds for holding it. By failing to direct the jury that if the Crown failed to disprove a self-defence belief, held on reasonable grounds, the accused should be convicted of defensive homicide, the jury had been presented with the choice of convicting the accused of murder or acquitting him altogether. In these circumstances the principles laid down by the High Court in Gilbert v The Queen[59] and Gillard v The Queen[60] applied and a miscarriage of justice had occurred because the jury had been incorrectly directed on the alternative verdict of defensive homicide.

81 Counsel for the Crown submitted that her Honour's jury direction was consistent with the direction contained in the Victorian Criminal Charge Book published by the Judicial College of Victoria. Further, when the whole of her Honour's written and oral jury directions were taken into account, a reasonable jury would have understood that the Crown had the onus of proving all the elements of murder - including that the applicant was not acting in pursuance of a self-defence belief when he killed the victim - and all the elements of defensive homicide. He also submitted that her Honour's directions made it clear to the jury that they could only convict the applicant of defensive homicide, if they were persuaded beyond reasonable doubt that the Crown had disproved that the accused was acting in pursuance of a self-defence belief for which he lacked reasonable grounds.

82 The submissions made by counsel in oral argument exposed some difficulties in the interpretation of ss 9AC and 9AD to which we now turn.

83 We turn first to the meaning of the ss 9AC and 9AD. It will be remembered that the first of these was set out in paragraph [45] above. It is as follows:

Section 9AC Murder - 'self-defence'

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

84 The second section which is relevant at this point is s 9AD. It is in the following form:

Section 9AD Defensive homicide

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.

85 The sections are drafted in a way which does not reflect the burden of proof which lies on the Crown to disprove a claim by the accused that he or she acted in self-defence. For example, s 9AC gives an accused a defence to murder where he or she believed the conduct was necessary to defend him or herself or another person from the infliction of death or really serious injury (or, in other words, held a self-defence belief). Despite the language of the section, it is axiomatic that the accused does not have to affirmatively prove the presence of such a belief; rather, it is for the Crown to disprove its existence. If the Crown does not persuade the jury beyond reasonable doubt that the accused did not have a self-defence belief, the accused must be acquitted of murder.

86 Similarly, s 9AD applies where the accused does not have reasonable grounds for the belief referred to in s 9AC. But this does not take account of the fact that an accused's acquittal of murder may not be based on the jury finding that the applicant had such a belief, but rather on the failure of the Crown to disprove the accused's claim that such a belief was held.

87 In oral argument counsel for the applicant submitted that the effect of the provisions read together is that an accused cannot be convicted of defensive homicide if either of two positions obtain. First, an accused cannot be convicted of defensive homicide if the Crown has failed to disprove the existence of a self-defence belief in the accused; and this is so because if the acquittal for murder were based on the failure of the Crown to disprove that the accused was acting in pursuance of a self-defence belief (rather than the jury reaching an affirmative conclusion that the accused did have a self-defence belief), s 9AD could not operate because it depends on 'the belief referred to in [s 9AC]'. Nor (assuming that the jury has positively accepted that the accused had a self-defence belief) can there be a conviction if the Crown has failed to prove that he or she did not have reasonable grounds for that belief. Counsel for the applicant claimed that her Honour's jury direction was deficient because it did not address this issue.

88 Counsel for the Crown submitted that an absurdity would arise if the sections were interpreted in the manner relied upon by the applicant's counsel. If the jury had a reasonable doubt about whether the accused had a self-defence belief, an accused would be better off (because he or she would be entitled to acquittal of both murder and defensive homicide), than if the accused had a self-defence belief not based on reasonable grounds, in which case the accused would be acquitted of murder but convicted of defensive homicide.

89 The question is whether s 9AD must be interpreted literally, so that the section is inapplicable where the jury acquits an accused of murder because it is not satisfied beyond reasonable doubt that the Crown has negated the existence of a self- defence belief, but applicable if the jury considers that such a belief existed but there were no reasonable grounds for it.

90 We have already referred to the history of the legislation. The Commission's Final Report recommended reintroduction of the defence of excessive self-defence which ceased to apply after Zecevic.[61] This was to be achieved by legislation providing that excessive self-defence would reduce murder to manslaughter, which would carry a maximum penalty of 20 years' imprisonment.

91 The Attorney-General's second reading speech also makes it clear that one purpose of the homicide reforms was to provide that a person who was found not guilty of murder but whose conduct in self-defence was not based on reasonable grounds should be convicted of a lesser offence. Section 9AD introduced an offence of defensive homicide, which attracts the same penalty of 20 years' imprisonment that applies to manslaughter.

92 In our opinion s 9AD should be interpreted as applying where an accused is acquitted of murder either because the jury considers that the accused had a self- defence belief (of course the onus does not lie on the accused to prove the existence of that belief) or because the Crown did not persuade the jury beyond reasonable doubt that the accused did not have a self-defence belief.[62]

93 It may be objected that this does some violence to the words of s 9AC. However it is a long-established principle that departure from a literal interpretation of a legislative provision is justified where the literal reading produces absurd results.[63] Further, the interpretation which we propose is consistent with the purpose of the legislation, and should therefore be preferred under s 35(a) of the Interpretation of Legislation Act 1984.[64] As Brennan CJ, Dawson, Toohey and Gummow JJ held in CIC Insurance Ltd v Bankstown Football Club Ltd:[65]

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy ... [I]f the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[66]

94 Thus we consider that s 9AD should be interpreted as applying where:

(a) the Crown has not proved beyond reasonable doubt that the accused did not have a self-defence belief (this will necessarily be the case where the jury has acquitted the accused of murder); and

(b) the Crown has not proved beyond reasonable doubt that, if any self-defence belief were held by the accused, it was not held on reasonable grounds.

95 A direction which is consistent with this interpretation would not need to be excessively complex. The jury could be directed along the following lines, in a case where self-defence is relied upon:

You may find that the accused believed it was necessary to do what he/she did to defend him/herself or another person from death or really serious injury. If so you must acquit the accused of murder and go on to consider whether he/she is guilty of defensive homicide.

Or you may find the accused not guilty of murder because the prosecution has not proved beyond reasonable doubt that the accused did not believe it was necessary to do what he/she did to defend him/herself or another person from death or really serious injury. There again you must go on to consider whether he/she is guilty of defensive homicide.

He /she will be guilty of that crime only if the prosecution proves beyond reasonable doubt that the accused had no reasonable grounds for having the belief which you either found he/she held or alternatively which he/she said he/she held and the prosecution did not disprove. In that second case you should assume, when considering whether the prosecution has proved the accused is guilty of defensive homicide, that the accused did hold the asserted belief.

96 Although we have held that s 9AD can be interpreted consistently with its purpose, this does not overcome all of the difficulties which arise in the application of subdivision 1AA. Questions which remain unresolved at appellate level include the relevance of statutory self-defence to attempted murder, and whether the alternative verdict of attempted defensive homicide should be left to the jury, when an accused is charged with attempted murder.[67] In our opinion the legislation should be redrafted to clarify these questions.

97 In our opinion the written jury directions given by her Honour, set out in [73] and [75] above, were consistent with ss 9AC and 9AD, as we have interpreted them. We take the same view of her Honour's oral jury charge. In relation to murder, her Honour told the jury that:

The prosecution have to prove beyond reasonable doubt that, firstly, all the elements of the offence have been met and, secondly, that Frank Babic did not believe that it was necessary to do what he did to defend himself from the infliction of death or really serious injury.

98 Throughout her jury charge her Honour continually reminded the jury that the onus of proof lay on the Crown. When the above passages are read in the context of the overall jury charge, it was clearly brought home to the jury that the onus was on the Crown to disprove the assertion that the accused believed that he was acting in self-defence. Within the passage relied upon by counsel for the applicant, which we have set out above, her Honour told the jury that the onus was on the Crown to prove that 'there was no reasonable basis for the accused to have believed it was necessary to act in the way he did in response to the threat he believed he faced'. Further, in the later passage we have quoted, her Honour said:

To find Frank Babic guilty of defensive homicide you must be satisfied that the prosecution has proven beyond reasonable doubt that, firstly, all of the elements of murder have been met, and that Frank Babic did not have reasonable grounds for his belief that it was necessary to do what he did to defend himself from the infliction of death or really serious injury.

99 In Zecevic[68] Deane J pointed out that jury directions on self-defence are inevitably complex because of

... the synthesis of the constituents of a defence of self defence and the operation of the onus of proof in relation to such a defence. The result of the abovementioned synthesis is an unavoidable use of negatives and one double negative which makes overall comprehension somewhat difficult even for a lawyer.[69]

100 Although Deane J was there referring to the jury direction required by Viro v The Queen[70] a similar complexity arises in directing a jury on defensive homicide.

101 In our opinion her Honour dealt with this issue appropriately by referring throughout her charge to the burden on the Crown to prove to the requisite standard all the elements of the offence and then in a more simplified manner, referring to the components of the offence of defensive homicide.

102 We do not consider that it was necessary for her Honour to tell the jury that if they considered that the Crown had not proven beyond reasonable doubt that the applicant lacked a self-defence belief for the purposes of murder, they must again consider that question in the context of defensive homicide.

103 Even if we are wrong in that view, we do not consider that an error in her Honour's jury directions on defensive homicide resulted in a miscarriage of justice. The circumstances of this case are distinguishable from those which arose in Gillard[71] and in Gilbert.[72] In Gilbert,[73] the jury direction was based on the trial judge's incorrect conclusion that a manslaughter verdict was not open to the jury, if they took a particular view of the facts. In Gillard,[74] the High Court held that there was a viable case of manslaughter against an appellant who had been convicted of murder and that a miscarriage of justice had occurred, because the trial judge's directions were that this was a case of murder or nothing.

104 In this case, by contrast, her Honour's written instructions and her oral jury charge made it clear to the jury that a verdict of defensive homicide was open to them. Further, her Honour's written directions told the jury that the offence of defensive homicide should be considered only if they held that the accused was not guilty of murder. Her Honour told the jury to consider whether the Crown had proved the elements of murder, including that the Crown had proved that the accused had not believed that it was necessary to do what he did in self-defence, before turning to the question whether he was guilty of the offence of defensive homicide. In convicting the accused of murder the jury must necessarily have concluded that the Crown had proven beyond reasonable doubt that he did not have a self-defence belief. In these circumstances the jury were not 'wrongly deprived of an opportunity to consider an intermediate position'[75] and no miscarriage of justice occurred.

[t]he learned trial erred in her directions to the jury as to the relevance of intoxication to the issue of intention.

106 In support of this ground of appeal counsel for the applicant relied on the following passage in her Honour's jury direction:

In considering this aspect I must give you some instructions about intoxication. In respect of intoxication it is a matter that both the Crown and the defence may rely upon. The Crown may rely upon it as providing an explanation for the accused's otherwise inexplicable behaviour. That is, that the consumption of alcohol or drugs has reduced the normal inhibitions that would prevent someone from acting in the way alleged in this case, that is the inflicting of multiple blows from an object to the head and neck area of the deceased, tying him up and passing an electrical cord around his neck, tightening that cord.

The defence on the other hand may rely upon it as negating or helping to negate some element of the crime, such as I am referring to in this particular element here. That is conscious, voluntary and deliberate.

If as a result of the consumption of alcohol or drugs, or both, the accused's will to act was so overborne that he was acting involuntarily, like an automaton or a sleepwalker, he would not be guilty of either murder or manslaughter. You need to examine the evidence carefully and see whether his behaviour is so outrageous and so bizarre that the only explanation could be that he was doing all of these actions in a dream-like state where his mind was not controlling his actions. Those acting like an automaton may have no memory at all of what occurred, but we have no evidence here of the lack of memory, in fact the only things that the accused man has said on the night to different people, such as being held hostage for two hours, things such as that, have been repeated by him two days later, and his counsel has submitted to you that is because he had remembered what he had said and was tied into that version. That indicates a consistency in what he told people about the events that night and a memory of what occurred.

The idea that he was a person who was acting as an automaton or a sleepwalker is also entirely inconsistent with him telling Shane Fellows the details he is alleged to have told him in the Melbourne Custody Centre relating to what occurred on this night and why it occurred. If you accept the evidence of the confession being made to Shane Fellows, that would indicate a clear control of his actions by the accused and certainly no separation of his mind from his actions.

You have in this case the advantage of hearing from all of the people who dealt with him on that night, and also the recording on the tape. You need to examine what those persons said about the level of intoxication of the accused man. His behaviour was somewhat out of the ordinary in the Safeway store but was it so far out of the ordinary that it indicated his mind was not in control of his actions, or does it show whilst he was intoxicated he was aware of what was occurring around him and preparing a form of defence as to what had occurred? These are the sorts of issues you need to deal with in examining this.

As I said, there is no evidence as to the level of his intoxication, but no-one has referred to him as staggering, falling down drunk, being unable to be understood at all whilst speaking, or any of the other signs that you would expect if someone is so intoxicated that they have no control over their actions, or no control over their intentions.

The descriptions given by the ambulance officer and the doctor are perhaps the classic description for someone who is affected to a degree by alcohol or drugs, which was unsteady of their feet, breath smells of alcohol, slurring of words, a classic police description of someone who is intoxicated. But that is a matter for your judgment.

Let me tell you the mere fact that a person is intoxicated does not mean that he was incapable of controlling his actions. A person's state of intoxication can vary greatly in degree. He may be intoxicated to a degree and that what he does is he acts voluntarily and intentionally in a manner which in a sober state he would not be likely to act. Intoxication to this extent, although perhaps explanatory of the accused's conduct has not necessarily destroyed his will, nor precluded him from forming intentions to do certain acts. Indeed, intoxication may well explain how the accused came to commit the crime.

Intoxication to a varying degree may have rendered the accused less concerned about the gravity of what he was doing or its possible consequences, but it will not ordinarily prevent an accused from performing an intentional act, nor from intending the consequences of those acts and, accordingly, does not affect the accused's criminal liability for those acts. But the intoxication may reach a point of such intensity that the accused's mind will become separated from the movements of his body so that such movements are truly involuntary and/or unintentional, and that is the point that must be reached before someone is not legally responsible for their actions or their intentions.

To give you an example of what may be a more common experience. A person has too much to drink and whilst in an intoxicated state gets in the car and drives home. The next day that person may have no recollection of having driven the car. But it does not follow that because he does not recall driving the car that it was not intentional. Whilst he may not have remembered the driving the next day, at the time that he drove the car he intended to drive it. Lack of recollection does not equate with loss of intent or loss of ability to control your body.

107 Counsel for the applicant submitted that the judge had not adequately explained how the applicant's intoxication was relevant to intention. He submitted that while her Honour had told the jury that intoxication might affect the applicant's ability to perform a conscious, voluntary and deliberate act, she had not directed the jury that intoxication could affect the applicant's ability to form an intention to kill or cause really serious injury.

108 He submitted that the judge's later directions as to intoxication and intent did not cure the omission in the above directions and that failure of the applicant's trial counsel to object to the judge's directions was not a tactical decision of the kind referred to by Eames JA in R v Kumar.[76]

109 In support of that submission he relied on the statement of Gibbs J in Viro,[77] that:

In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.[78]

110 Counsel for the Crown conceded that in the above passage her Honour had conflated the relevance of the applicant's intoxication with his ability to perform a conscious, voluntary and deliberate act, and its relevance to his ability to form the specific intent for murder. He submitted however that, as the charge progressed, the requirement of a murderous intent was included in what the judge said about the likely effects of intoxication.

111 We would agree that in the passage relied upon by counsel for the applicant, her Honour did not clearly separate the issue of the voluntariness of the applicant's actions (which was relevant to the actus reus for the offence) and the issue of his specific intent to kill the victim. However these directions must be read in the context of the entire jury charge.

112 Following the passage set out above her Honour said that:

What I have just told you in respect of intoxication applies to the second element, that is, conscious, voluntary and deliberate, and the third element to which I am about to turn, which relates to the intent of the accused at the time of performing the acts. So what I have just said about intoxication applies to both, and for either actions to be involuntary or for the will of a person to be overborne such that they cannot form an intention to do something, the intoxication must be of such an extreme level that they are no longer capable of doing that and, as I say, it is a rare situation that arises.

The third element is that the act which causes the death must have been carried out with the intention of either killing the person or causing really serious bodily injury to that person. You will note that they are alternatives. The Crown does not have to prove both, the Crown has to prove one or the other. So what you are dealing with here is the actual intention in the mind of the person at the time that the person beat Raphael Innaimo and tied the cord around his neck causing his death. The intention at that time.

As I said, it is not possible to look into the mind of a person. You cannot go back to 26 June 2006, open up a person's brain, look in and say, 'Well, that's what the intention was'. You need to draw on inferences that I referred to earlier, and they become very important in relation to this aspect.

In determining the element of the offence there are a number of factors that you may consider which include the following: the injuries that were inflicted, and from them draw any reasonable inference that is open to you; the force, the number, the severity of those injuries; the position in which the deceased was at the time of the infliction of the injuries. You can look at the degree of force that was used according to the forensic odontologist which caused a number of teeth in the deceased's mouth to be fractured and/or forcibly removed from the gum. You can look at the amount of blood that has been sprayed around the premises, which you may find demonstrated that the person who was inflicting the injuries would be well aware of the severity of the harm that was being inflicted.

That is not an exhaustive list of what you may consider to be relevant to the issue, and it is what you consider to be relevant in helping you to determine what you consider. They are just some suggestions of things that may be of assistance to you in determining at the time that that number of blows and the tying of the cord was taking place, what was or what could have been the only intention of the person who was doing it.

Remembering what I have told you about the drawing of inferences, what an individual's intention was may be deduced by you, that is, inferred by you from the facts that you find established. However, before you draw an inference in relation to this matter, that is, the state of mind of the accused, in a manner that is adverse to the accused, you must be satisfied beyond reasonable doubt that there was no other reasonable inference open on the evidence other than that the accused intended to cause the death of Raphael Innaimo or intended to cause him really serious injury.

You are also entitled to act upon the evidence of Shane Fellows, if you accept his evidence, that the accused told him that Mr Innaimo had recognised him and that he had to knock him, which Fellows explained meant kill him.

Equally, I remind you that the issue of intoxication that I have directed you upon earlier has application to this element in the manner I have described.

113 In our opinion this ground is not made out. Her Honour told the jury that her directions as to intoxication applied equally to the 'third element' (ie intent) and expressly linked this element of the offence with the Crown's obligation to prove that there was no reasonable inference open on the evidence other than that the accused acted with a murderous intent.

114 As counsel for the Crown submitted, counsel for the accused at the trial did not take exception to the judge's charge on the relevance of intoxication to intent. Nor did counsel for the Crown indicate that her Honour had not adequately dealt with this issue. Presumably both counsel considered that her Honour had adequately dealt with the effect of intoxication on the question of whether the Crown had proved that the applicant had the specific intent required for murder. In our opinion ground 4 fails.

115 Leave was given to the applicant to add an additional ground of appeal, which was as follows:

The trial of the Applicant miscarried in that as a result of the Learned Trial Judge misdirecting the jury as to the belief as set out in s 9AC (and referred to in s 9AD) of the Crimes Act 1958 - by erroneously introducing the concept of 'imminent' death or really serious injury - the jury may well have understood that such a concept was a required component of that belief.

116 Counsel for the applicant relied on the following passage in her Honour's charge:

You must determine whether the prosecution has proven that Frank Babic did not believe it was necessary to act in the way he did to defend himself against a threat of death or really serious injury that he believed or thought he faced at the time.

If you are not satisfied that the prosecution has proven that he did not believe it was necessary to act in the way he did, to defend himself against a threat of death or really serious injury, beyond reasonable doubt, that you must find Frank Babic not guilty of murder.

It is only if you are satisfied that the prosecution has proved all of the elements of the offence beyond reasonable doubt that I have referred to earlier, one, two and three, and the prosecution have proved that Frank Babic did not believe that he was threatened with death or really serious injury, or did not act in the belief that what he did was necessary to defend himself from that threat, that you can convict him of murder.

In relation to this element, you need to examine issues such as who was the aggressor in the confrontation? Did that change at any stage? Does a punch to the face cause a person to believe that he is facing imminent death or really serious injury? Who produced the weapon? Did the accused really believe that he was facing imminent death or really serious injury? You are entitled to look to the evidence of the witness Kelvin Thomas and act upon what parts of that evidence you accept, if any, and also the evidence of confession from Shane Fellows that the accused told him he had to kill him because he could recognise him and that he just kept hitting him again and again and again. Once again, that is your judgment as to whether you accept that evidence of either both or one of those witnesses on this issue.

The Crown say to you here that there was no risk of any imminent death or really serious injury as there was no weapon being used by the deceased. There was no knife, there was no baseball bat. They were figments of the imagination of the accused man setting up an issue of self-defence.

He said even if the deceased had possession of the weapon that was ultimately used, it had been wrested from his grasp by the accused man. It was in the possession of [the] accused man and the accused man was sitting on top of the deceased with the weapon in his hand when Kelvin Thomas left the scene. The Crown say the accused man was clearly in control and the weapon had not been used at that point. The accused has no injuries, no defensive injuries, and the deceased has over 50 injuries. At the stage when the cord was placed around the deceased's neck and tightened did the accused man still feel that he was under imminent threat of death or really serious injury?

The Crown submitted you should remember the evidence of the pathologist that there were wounds underneath the electrical cord that were consistent with being a result of the use of the weapon. Although there is no evidence about the order of the infliction of injuries, you should be satisfied that at least some of the injuries were inflicted with the fire poker prior to the cord being tied around his neck. Even on the version that the defence managed to get Thomas to agree to, the weapon was in the hands of the accused and the deceased was on the ground with the accused sitting on top of him. Clearly, the Crown say, the accused was in control. How on earth could he fear imminent death or serious injury from that position in which he clearly had the upper hand?

117 Counsel for the Crown submitted that neither her Honour's written jury directions nor her oral explanation of the self-defence required the threat to be imminent.

118 In our opinion, ground 8 is not made out. Her Honour's reference to a risk of 'imminent death or really serious injury' was made in the context of summarising the submission made by counsel for the Crown. Her Honour's written summary of the elements of murder did not refer to an 'imminence' requirement. At only one point in her Honour's discussion of the elements of murder in her oral charge did she refer to 'imminence'.

119 Further, even if her Honour incorrectly referred to 'imminent death or really serious injury', at one point in her charge, this was not productive of any miscarriage of justice on the facts of this case. There was no evidence indicating that there was any significant delay between the alleged apprehension of the applicant that he might be killed or really seriously injured, and the killing of the victim. Although the applicant's counsel relied on the fact that part of the applicant's case at trial was that he feared that the deceased had access to a knife or a poker, the events leading to the victim's death occurred within a relatively short time span. It is fanciful to suggest that the reference to 'imminent death or really serious injury' might have led the jury to conclude that any short delay which might exist would deprive the applicant of the benefit of self-defence.

120 Since grounds of appeal 2, 5 and 6 were abandoned the application for leave to appeal against conviction fails.

121 We have already referred to the nature of the offence. We now turn to the applicant's personal circumstances.

122 The applicant was aged 43 years at the date of offending and 45 years at the date of sentence. He had a number of convictions for violent offences. In July 1997 he was convicted of murder of a man with whom he shared accommodation and was sentenced to 13 years' imprisonment with a non-parole period of 10 years and 6 months. He was released on parole on 22 December 2005, only six months before the second murder. In her sentencing reasons, the trial judge commented on the similarity between the circumstances of the victim's death and those of the victim of the earlier murder, who was also struck many times and who was strangled by having an electrical flex passed around his neck.[79]

123 The applicant was born in Croatia and migrated with his family when he was about five years old. At the time of sentencing, he was not in contact with his parents or his brother. He grew up in Ascot Vale and left school after completing Year 9. Being unable to find an employer with whom to commence an apprenticeship, he began a career working as an unskilled labourer. He continued to live at home, apart from the periods spent in imprisonment, until 21, when his father sent him to Croatia to find a wife and to discourage the applicant's increasing drug habit. He returned to Australia after discovering that he would be conscripted into the armed forces and met his wife whom he married in 1985. They had four children two daughters and two sons. Unfortunately each of his sons died of cot death shortly after they were born.

124 In an attempt to break his drug addiction, the applicant moved to Adelaide shortly after his marriage and commenced a methadone program. The applicant's wife became severely depressed and suicidal as a result of the death of their sons and she began using drugs. This led to her imprisonment, which forced the applicant to take care of his two daughters. After the applicant's wife was released from custody, her mental state deteriorated rapidly and she was returned to custody after breaching her conditions of parole. It was at this point in 1992 that the applicant returned to Melbourne with his daughters and terminated his methadone program.

125 The applicant was imprisoned shortly after returning to Melbourne and lost custody of his daughters. His father ceased contact with the applicant, but his mother continued to see him. The applicant was sentenced to another term of imprisonment, and shortly after his release, committed the murder for which he served 10 and a half years' imprisonment.

126 He remained drug free for a while after he was released on parole, while he was living with his parents. However this did not last long as the applicant resented the constraints his parents placed on his lifestyle. He moved out to a boarding house and began using drugs again, this time preferring amphetamines. The extent of his drug abuse was such that he had to have an operation because of the state of the veins in his hand.

127 After meeting two women successively, both of whom let him stay in their homes, the applicant ceased taking drugs and underwent a methadone program, but his attempts to overcome his addiction were short-lived.

128 It was at this point in the applicant's life that he killed the victim. He informed Ian Joblin, the forensic psychologist who prepared a report tendered during the plea hearing, that during this period he was using amphetamine, Xanax, Rohypnol, Rivotril, Valium and Methadone and drinking excessive amounts of alcohol.

129 Counsel for the applicant submitted that the applicant's age should have been a central consideration in setting the non-parole period. The applicant was 45 at the date of sentence and was required to serve his sentence cumulatively on a sentence of 2 years and 6 months, relating to the cancellation of parole for a prior offence. Counsel accepted that the judge had referred to the applicant's age during the plea and in her sentencing reasons, but contended that the judge had given insufficient weight to the matter. He said that the non-parole period represented a very substantial proportion of the applicant's remaining life and would carry a greater burden in the later years of his imprisonment.[80]

130 Counsel for the Crown contended that the non-parole period was within the range of sound discretionary judgment. He relied on the judge's allusion to the applicant's age as a significant factor in her decision to fix a non-parole period,[81] the fact that the applicant fell to be sentenced as a serious violent offender, the fact that the offence was committed only six months after being released on parole for another murder and the need to protect the community, which was appropriately given considerable weight.

131 It is clear that her Honour did take account of the applicant's age. Having concluded that it was appropriate, despite the applicant's lack of remorse, to impose a minimum non-parole period, her Honour said that

[d]espite your age of 45 it must be a significant non-parole period and that means you will be an aged person when and if you are released in the future.[82]

132 In our opinion the appeal against sentence is hopeless. Although the applicant had suffered severe personal tribulations, this was an appalling crime. The applicant, who had been released on parole for a previous murder only six months previously, beat a man to death in his own home. He showed no remorse and did not plead guilty. He must be considered a real danger to the community. As her Honour noted in her sentencing reasons, there are disturbing similarities between the circumstances of this murder and of the previous murder. The application for leave to appeal against sentence should be refused.

[1] [1987] HCA 26; (1987) 162 CLR 645, 662.

[2] [1978] HCA 9; (1978) 141 CLR 88,146 (Mason J, Stephen and Aickin JJ concurring).

[3] Zecevic v The Queen [1987] HCA 26; (1987) 162 CLR 645, 661 (Wilson, Dawson and Toohey JJ).

[5] I leave to one side the question whether the statutory regime should apply in a case of attempted murder. See R v Pepper [2007] VSC 234; (2007) 16 VR 637.

[6] [2009] VSC 166; (2009) 21 VR 590, 592 [9].

[7] Zecevic v The Queen [1987] HCA 26; (1987) 162 CLR 645, 657.

[8] The steps are set out in his Honour's judgment in Zecevic, ibid 649-650.

[10] Notwithstanding that their Honours said that 'no set words or formula' was required.

[12] [2003] HCA 64; (2003) 219 CLR 1.

[13] [1987] HCA 26; [1987] 162 CLR 645 ('Zecevic').

[15] Ibid 661 (Wilson, Dawson and Toohey JJ).

[16] R v Pepper [2007] VSC 234; (2007) 16 VR 637 ('Pepper'); R v Gould [2007] VSC 420; (2007) 17 VR 393 ('Gould'), [10]-[48]; R v Parr [2009] VSC 166; (2009) 21 VR 590 ('Parr').

[17] [2007] VSC 420; (2007) 17 VR 393.

[20] The onus rests on the Crown to disprove the defence. We have expressed the proposition in this way to avoid the use of a complex double negative.

[21] [2007] VSC 234; (2007) 16 VR 637.

[22] [2009] VSC 166; (2009) 21 VR 590.

[23] Victorian Law Reform Commission, Defences to Homicide, Final Report (2004).

[24] Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (The Hon Rob Hulls, Attorney-General).

[25] [2007] VSC 234; (2007) 16 VR 637.

[26] [2009] VSC 166; (2009) 21 VR 590.

[27] Interpretation of Legislation Act 1984, s 36.

[28] [2007] VSC 420; (2007) 17 VR 393.

[29] Ibid 398. His Honour may also have been invoking the principle of statutory interpretation that legislation should not be interpreted as abolishing common law rights unless parliament has stated a clear intention to do so: see Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18 and for detailed discussion see D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006) 524.

[30] [2009] VSC 166; (2009) 21 VR 590.

[31] [1976] HCA 55; (1976) 135 CLR 569, 576.

[32] [2008] VSCA 265; (2008) 21 VR 526, 552.

[33] [2009] HCA 19; (2009) 239 CLR 305, 338.

[34] [2009] VSC 166; (2009) 21 VR 590, 594.

[35] [2009] VSC 166; (2009) 21 VR 590.

[37] Interpretation of Legislation Act 1984, s 35(b).

[38] Victorian Law Reform Commission, Defences to Homicide, Options Paper (2003).

[39] Victorian Law Reform Commission, Defences to Homicide, Final Report (2004).

[41] Section 6. The age limit for the child victim which had been recommended by the Commission was not accepted however.

[46] Section 9AC. It may be noted however that the Commission recommended that defence of property should not be a defence to murder.

[48] Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (Rob Hulls, Attorney-General).

[49] [1987] HCA 26; [1987] 162 CLR 645.

[50] Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1350.

[52] [2009] VSC 166; (2009) 21 VR 590.

[53] [1987] HCA 26; [1987] 162 CLR 645.

[54] It may be noted that Wilson, Dawson and Toohey JJ (at 662), shortly after stating the relevant test to be applied (at 661), expressed the view that a 'threat does not ordinarily call for that response [i.e. killing the victim] unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm' (emphasis added).

[55] [1987] HCA 26; [1987] 162 CLR 645.

[56] Grounds 2, 5 and 6 were abandoned.

[57] The written directions made available to the Court referred to common law self-defence. It was accepted that no direction on common law self-defence had been given in this case.

[58] The word 'not' was omitted in the transcript of the jury charge. Nothing was made of this by the applicant's counsel.

[60] [2003] HCA 64; (2003) 219 CLR 1 ('Gillard').

[61] [1987] HCA 26; [1987] 162 CLR 645.

[62] It may be noted that in New South Wales and South Australia, where provision has also been made for excessive self-defence, the legislation specifically provides that the onus lies on the Crown: Crimes Act 1900 (NSW), ss 421 and 419; Criminal Law Consolidation Act 1935 (SA), s 15.

[63] Grey v Pearson [1857] EngR 335; (1857) 10 ER 1216, 1234 and see further discussion in D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), [2.4]. In Footscray City College v Ruzicka [2007] VSCA 136; (2007) 16 VR 498, 505 Chernov JA cited this passage from Lord Wensleydale's judgment in Grey v Pearson and then said the following:

It is the case, as Pearce and Geddes point out in Statutory Interpretation in Australia, that 'the golden rule contemplated that a mistake had been made in the wording of the Act'. But the rule is also otherwise applied to avoid construing legislation so as to produce patently unintended or absurd results.

[64] Absurdity is not required for a Court to adopt the purposive approach to statutory interpretation set out in s 35(a) of the Interpretation of Legislation Act 1984: Mills v Meeking [1990] HCA 6; (1999) 169 CLR 214, 235 (Dawson J), cited in DPP (Vic) v Ali [2009] VSCA 162, [44] (Maxwell P, Weinberg JA and Kyrou AJA).

[66] Ibid 408 (citations omitted). See also Pope v WS Walker & Sons [2006] VSCA 227; (2006) 14 VR 435, 442-3.

[67] See Pepper ([2007] VSC 234; 2007) 16 VR 637, 645-6.

[68] [1987] HCA 26; (1987) 162 CLR 645.

[70] [1978] HCA 9; (1978) 141 CLR 88 ('Viro'), 146-7 (Mason J).

[71] [2003] HCA 64; (2003) 219 CLR 1.

[74] [2003] HCA 64; (2003) 219 CLR 1.

[75] Gillard [2003] HCA 64; (2003) 219 CLR 1, 14 (Gleeson CJ and Callinan J).

[76] [2006] VSCA 182, [34-[35].

[77] [1978] HCA 9; (1978) 141 CLR 88, cited by this Court in R v Cullagh [2002] VSCA 163, [15]-[16] (Winneke P, with whom Callaway JA and O'Bryan AJA agreed).

[78] Ibid 112. Counsel also relied on Brooking JA's summary of the law in R v Faure [1999] VSCA 166; [1999] 2 VR 537, 544-6.

[79] R v Babic (Unreported, Supreme Court of Victoria, Eames J, 4 July 1997).

[80] R v Bazley (1993) 65 A Crim R 154; R v Lane [2003] VSC 180; R v Iles [2009] VSCA 197, [14]-[23] (Lasry AJA), [31]-[35] (Redlich JA).

[81] R v Babic [2008] VSC 218, [50].