DPP v McDowall

322K Self-defence

(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if -

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

322L Self-defence does not apply to a response to lawful conduct

Section 322K does not apply if -

(a) the person is responding to lawful conduct; and

(b) at the time of the person's response, the person knows that the conduct is lawful.

2 The evidence adduced by the prosecution indicated that on the night of 15 October 2017, Natalie Dalton told McDowall (her recent ex-boyfriend) that she had been raped by Jade Goodwin. Dalton also said that Jade Goodwin was staying in Olivia McOrmond's unit nearby and that McOrmond wanted him out. McDowall spoke to McOrmond over the phone who confirmed that Goodwin was there, asleep in the master bedroom. McDowall told McOrmond to leave the front door open for him. Soon after, McDowall and his friend, Shane Heiberg, went to McOrmond's unit. McDowall admitted in his recorded interview with police that he went there intending to give Goodwin a "flogging".

3 After entering McOrmond's unit through the unlocked front door, McDowall opened the door to the master bedroom and observed Goodwin in bed, apparently sleeping. He closed the door momentarily, indicating to Heiberg that Goodwin was in the room. He opened the door again and the two men entered but were surprised by Goodwin as they did so. Goodwin launched himself off the bed, kicking McDowall to the chest and striking Heiberg's hand with a sharp object, possibly a piece of glass. The two intruders then sought to overpower and tie up Goodwin. The struggle was protracted. McDowall used cable ties and electrical cords to tie up Goodwin. Eventually, as Goodwin continued to struggle, McDowall wrapped a dog lead twice around Goodwin's neck, pulling it tighter and tighter until Goodwin passed out. McDowall left the room, telling McOrmond and Dalton a short time later that Goodwin was dead or unconscious.

4 Later that night, McDowall removed Goodwin's body from the unit and eventually, with Dalton's assistance, dumped it at a property in Tyabb. He returned to the Tyabb property in the following days and dug a shallow grave into which he put the body. The body was discovered by police on 22 October 2017, the dog lead still wrapped around Goodwin's neck.

5 Professor Cordner, who conducted the autopsy, was not able to state the cause of death. He gave evidence that, assuming the ligatures (including the dog lead) were applied to Goodwin's neck "in life", they would have been an operating and substantial cause of death.[3]

6 At the close of the evidence, defence counsel submitted that it was a reasonable possibility that Goodwin's pre-emptive strike on McDowall and Heiberg, as they entered his bedroom, was unlawful (in effect, an assault) and that McDowall's response to that pre-emptive strike, including the application and tightening of the dog lead, amounted to lawful self-defence.[4]

7 Defence counsel focused first on McDowall's conduct. Relying on McDowall's answers in his recorded interview, defence counsel emphasised that McDowall knew Goodwin to be a violent person. Further, McDowall told police in his recorded interview that Goodwin thought he was "fighting for his life",[5] and he believed that if they gave Goodwin "an inch", he or Heiberg would be killed.[6] In other words, defence counsel submitted a jury could find that it was a reasonable possibility McDowall believed it was necessary to do what he did in self-defence and that his conduct was a reasonable response to Goodwin's conduct in the circumstances as he perceived them to be.

8 As regards s 322L of the Act, defence counsel submitted that the only basis on which Goodwin's pre-emptive strike could have been lawful was if Goodwin was acting in self-defence. But, counsel submitted, Goodwin could not have believed it was necessary to do what he did when he kicked McDowall and stabbed Heiberg: he did not know the intentions of the men as they entered his room. Focusing on s 322L(a) of the Act, defence counsel submitted that I was obliged to leave self-defence for the jury's consideration, unless I found "that the jury would necessarily be satisfied beyond reasonable doubt that Jade Goodwin's conduct was lawful".[7]

9 In the course of discussion, I suggested reframing the relevant question as follows: "Could a jury find or consider that there was a reasonable possibility that Jade Goodwin's conduct was unlawful?" Defence counsel agreed that that was the appropriate question.[8] If I answered it in the affirmative, it followed that the defence of self-defence was not precluded by s 322L.

10 The prosecution submitted that Goodwin's pre-emptive strike was lawful. The fact that there was a "history" between Goodwin and McDowall gave Goodwin another reason, if one was needed, to make a pre-emptive strike when the two men entered his room. But even if he did not appreciate the identity of the intruders, he was entitled to do what he did in self-defence given the two intruders planned to assault him.

11 The prosecution submitted that even if Goodwin's conduct was unlawful, and that immediately after Goodwin's pre-emptive strike, McDowall was acting in self-defence, it was not open to find he was still acting in self-defence when he wrapped the dog lead twice around Goodwin's neck and pulled tighter and tighter. The prosecution submitted that a clear line could be drawn between what it called Phase One and Phase Two of the altercation. There was a point in the struggle where Goodwin was sufficiently restrained that McDowall, on his own admission, felt safe enough to go and get him a cup of water. It was after this point that the dog lead was applied and tightened.

12 In reply, defence counsel said the prosecution's first argument wrongly assumed that Goodwin knew what McDowall and Heiberg were planning when they entered his room. As for the prosecution's alternative argument, defence counsel argued it was a jury issue: a jury might reason as the prosecution suggested, but it was not inevitable that it would do so.

13 On 9 May 2019, I gave brief oral reasons for refusing to leave the defence of self- defence for consideration by the jury. At the time I said this:

"I'm of the view that s 322L [of the Crimes Act 1958] applies. Consequently self-defence...as set out in s 322K does not apply. I do not think that it is open to a jury acting reasonably to consider that Mr Goodwin was acting unlawfully, or to put it another way, was not acting in lawful self-defence...[He was] in his bed...his door [was] opened, someone look[ed] into his room, close[d] the door, a short time passe[d], the door [was] opened again, and two men [began making] their way into his room. It seems to me that his response in making a pre-emptive strike was clearly lawful, and it would be farcical to view it as otherwise. I will elaborate on my reasons in due course..."

14 As mentioned above, I gave my ruling in the course of discussions under the Jury Directions Act 2015. Pursuant to ss 11(b)(ii) and 12(a) of that Act, defence counsel submitted that self-defence was in issue and that I should direct the jury accordingly. Further, pursuant to s 14(1) of the Jury Directions Act 2015, I was obliged to direct the jury on self-defence unless there were "good reasons" for not doing so. If self-defence was not open because of the operation of s 322L of the Act, that would obviously be a good reason for not giving the requested directions.

15 In my view, Goodwin was clearly entitled to act as he did in self-defence when McDowall and Heiberg made their way into his room. In other words, a jury could not consider that there was a reasonable possibility that Jade Goodwin's conduct was unlawful.

16 The intruder or intruders, whoever they were, did not knock, did not call out to Goodwin before entering, did not do anything which could have been interpreted as reassuring. They entered by stealth. Whilst Goodwin may not have known the intentions of the men as they entered his room, the manner of entry strongly suggested that the intruder or intruders might intend to do him harm. Moreover, Goodwin was outnumbered. The fact that there were two male intruders trying to enter his room increased the chances that they meant to do him harm. Making a pre-emptive strike of the kind he did was, in my view, a reasonable response to the danger he faced.

[1] On 15 May 2019, the jury returned verdicts of not guilty of murder but guilty of manslaughter.

[2] The accused did not give or call evidence.

[3] Transcript of proceedings, Director of Public Prosecutions v Brendan McDowall (Supreme Court of Victoria, S CR 2018 0244, Beale J, 7 May 2019), 135.

[4] Transcript of proceedings, Director of Public Prosecutions v Brendan McDowall (Supreme Court of Victoria, S CR 2018 0244, Beale J, 9 May 2019) 191-196.

[6] Depositions, Director of Public Prosecutions v Brendan McDowall (Supreme Court of Victoria, S CR 2018 0244, Beale J, 9 May 2019) 2262-2263 (Answer 455).

[7] Transcript of proceedings, Director of Public Prosecutions v Brendan McDowall (Supreme Court of Victoria, S CR 2018 0244, Beale J, 9 May 2019) 193.