DPP v McAllister [2007] VSC 315

2 In Pepper, Whelan J set out his reasons for concluding that the new Act applied to a charge of attempted murder. He noted and set out the terms of provisions in the Crimes Act which relevantly warranted consideration, particularly sections 321M, 321N, and 421(2). As to the law as to self-defence, he summarised the position as spelt out in Viro v R [1978] HCA 9; (1978) 141 CLR 88, with the gloss added by other cases leading up to the substantial revision of the law effected by Zecevic v R [1987] HCA 26; (1987) 162 CLR 645. He summarised the thrust of the Victorian Law Reform Commission report as to "Defences to Homicide". He noted that, while there was a Draft Bill annexed to that report, the new Act differed from that Draft Bill in relevant respects. He quoted from the Attorney-General in the Second Reading Speech. He set out the relevant provisions of the new Act. The issues he addressed were, in short, whether the self-defence provisions of the new Act (or the common law, or both), applied to attempted murder, and whether an alternative verdict of attempted defensive homicide should be left to the jury.

3 The submissions made by Mr Gilligan to me, which I now summarise, were substantially similar to those put in Pepper:

A. By reason of Section 4 of the new Act, the alternative verdict of defensive homicide was expressly to apply only as to murder.

B. That was reinforced by the definition of "relevant offence", in s.9AB(1) which did not include "attempted murder", and by the addition of the specific limitation in s.9AB(2).

C. The absence of any reference in the Second Reading Speech to attempted murder was to be treated as an indication that the new Act applied only to criminal homicides and not to crimes involving serious injury, into which category "attempted murder" fell.

D. The intention of Parliament was to ameliorate the harshness of the common law as to murder in circumstances where there was a reasonable belief but there were not reasonable grounds for that belief, and there was no basis for concluding that Parliament intended to go beyond murder.

E. If the new Act applied, the jury would have to be directed as to attempted defensive homicide, and as to common law self defence as it applied to intentionally causing serious injury, and such directions involved not only greater complexity but also that the jury would have to be directed that a more stringent test applied to the lesser alternative.

4 Mr Desmond submitted to me that the provisions of new Act as to self defence did apply. He noted that against the benefit to a person charged with attempted murder in having the new provisions apply, had to be weighed the disadvantageous requirement that the belief of the person had to be a particularly focused belief, namely that it was necessary to defend himself or herself from the infliction of death or really serious injury. Both Mr Gilligan and Mr Desmond accepted that, if I ruled that I would apply the new Act, I should then proceed on the basis that there was an offence of attempted defensive homicide, and that it should be addressed as the first alternative to attempted murder.

5 What ultimately weighs most with me is the primary reason of Whelan J for concluding that the new Act applies to attempted murder, as set out in [41] in Pepper. It is that which is based on section 321M. The elements of attempted murder are close to inextricably linked to those of murder. If the acts, which did not kill, but which were relied on to amount to attempted murder, had killed, the perpetrator could have relied on the ameliorated defence. Should a lack of success make a significant difference?

6 I am troubled that the phrasing of the new Act is not such as to clearly bear out that there is to be, or not be, a difference. With the benefit of hindsight, it would have been preferable for Parliament to have expressly addressed the issue. If the final ruling on this issue does not achieve the result that Parliament intended, that course may still be appropriate. I am not disposed to place much weight on the absence of specific reference to attempted murder in the new Act, or the Second Reading Speech, or in the Draft Bill. Indeed, I perceive the reason for that absence to be that the Law Reform Commission reference was limited to homicide. Despite that important limitation, the Commission's report does appropriately refer several times to attempted murder in the context of "duress". In R v Goldman 2007 VSCA 25, Bongiorno J made a reference at [66] to section 9AG of the new Act now specifically applying the defence of duress to both murder and attempted murder. Given the context of that reference, I do no more than note it, as against relying upon it.

7 The interpretation that the new Act applies to a charge of attempted murder does favour a person charged with attempted murder. I am always troubled about making a ruling, the effect of which is to make an explanation of the law less simple for a jury. But fairness has to be weighed against simplicity, and generally ought to outweigh it. Zecevic ushered in a simpler law as to self-defence. The law under the new Act has ushered in a law that is not so simple, but is fairer. It seems to me that, absent a very specific legislative provision to the contrary, that added level of fairness ought to be extended to persons charged with attempted murder.