Edmunds v The King [2025] VSCA 31

Edmunds v The King [2025] VSCA 31 | Case summary | Zoe

[5]

In November 2012, the applicant applied for a family violence intervention order against Caposiena. The applicant was pregnant with Alex at the time of the application.
In July 2013, the Magistrates' Court granted the application and made the order. Among other things, the order prohibited Caposiena from communicating with or contacting the applicant, and from going within or remaining within 100 metres of any place where the applicant lived or worked. In its practical operation, the order prevented Caposiena from spending time with Alex, who resided with the applicant.
At trial, there was evidence that Caposiena was unable to have access with Alex because of the intervention order. The intervention order lapsed in July 2014.
At some point in 2014, Caposiena commenced proceedings in the Family Court for parenting orders concerning the care of Alex. After he commenced proceedings, arrangements were made, pursuant to an order of the Family Court, for Caposiena to attend supervised access visits at Berry Street in Shepparton. Among other things, Berry Street provides supervised visits and changeover facilities for parents in conflict.
The first supervised visit occurred on 30 August 2015. Caposiena attended 12 or 13 supervised visits in total. The last supervised visit he attended (along with Silva) was on 11 March 2016 - the day before his death. Notably, that was to be the final supervised visit; from that point onwards, the applicant and Caposiena were to 'self-manage' visits.
There was ample evidence, including from the applicant's sister and mother, that the applicant was resistant to Caposiena's efforts to involve himself in Alex's life.
The applicant's sister, Kirinia Edmunds, gave evidence that the applicant told her that she (the applicant) wanted Caposiena 'out of the way' and 'I want him gone'. On the evidence of this witness, the applicant had said Caposiena's access was 'getting in the way of her life' and 'lifestyle'. The applicant said 'I wish [Caposiena would] just leave us alone and not try for [Alex]'. She 'wished the problem would just disappear and that [Cassidy] would be the boys' only father'. Kirinia Edmunds said that, when the applicant said these things, including in front of Cassidy, she (the applicant) was 'always angry'.
The applicant's mother, Ellen Edmunds, gave similar evidence. She said that the applicant told her that she (the applicant) did not want Caposiena to see Alex because Caposiena was violent. The applicant also indicated that Caposiena's 'sudden onset of trying to have access visit[s] was becoming a hassle with her life with [Cassidy]'. She recalls the applicant saying that she (the applicant) wished Caposiena would 'fall off the face of the earth'.
Cassidy's mother and two daughters also gave evidence of the applicant's negative attitude towards Caposiena.

[13]

The prosecution contended that the list of items under 'Opsticols' (intended to mean 'obstacles') was referrable to the proposed murder of Caposiena. Similarly, the reference to 'Bike or car that's not mine no plate' was said to embody Cassidy's plan to travel to Melbourne in a vehicle that could not be linked to him.
Although there was evidence that the applicant continued to voice her dislike of Caposiena, there was little to no evidence of planning between 26 December 2015 and 2 March 2016. Bonner gave evidence that he visited Cassidy and the applicant on an unspecified date shortly before the murder. He said that the applicant came outside and showed him a firearm that she had wrapped in a towel or blanket. She asked him whether he would be able to get a 'magazine' for it. Bonner told her to 'fuck off'. The prosecution argued that this was evidence of the applicant's knowledge of, and involvement in, the plan to murder Caposiena.
From 2 March, Cassidy travelled from Shepparton to Melbourne on several occasions. The prosecution alleged that the purpose of this travel was to conduct reconnaissance on Caposiena's premises. The prosecution's case in this respect was supported by images captured by traffic cameras, as well as a series of recorded telephone conversations between Cassidy and the applicant. These conversations occurred prior to the murder of Caposiena. For reasons that are not entirely clear, Cassidy had recorded them using his phone.
On their face, and divorced from any context, the recorded conversations were not incriminating. However, the prosecution alleged that the pair were talking in code. Specifically, they were said to have used the words 'job' and 'work' to refer to the murder, and 'workers' to refer to Caposiena and Silva.
It suffices to give only a few examples.
Before doing so, it is necessary to say something about Cassidy's employment. In the period leading up to the murder, Cassidy told his daughters that he (Cassidy) was doing 'demolition' work in Melbourne. One of his daughters also gave evidence that he (Cassidy) was travelling from Shepparton to Melbourne in the applicant's car.
Thus, when Cassidy refers to 'work' and 'workers', he had to be talking about one of two things: a demolition job; or the proposed murder of Caposiena (including his surveillance of Caposiena between 2 and 12 March 2016). The prosecution argued that the latter was the only reasonably available inference. It pointed to, first, the timing of the calls, and, second, the inherent implausibility of Cassidy travelling two hours each way to Melbourne only to discover that the job could not be completed. There was also evidence, given by the informant, that there was no indication - by way of telephone records or otherwise - that Cassidy was involved in demolition work.
One of the recorded conversations occurred at 8.23 pm on 5 March 2016. It included the following exchange:

[86]

Silva confirmed in cross-examination that she did not see Caposiena stab Cassidy; her only 'focus point' was the firearm.
We pause here to make some observations about the effect or import of Silva's account:
- In examination-in-chief, Silva said that she could not recall if she lost sight of the men.
- However, it is common ground on this application that she must have lost sight of them. Silva said that she was sitting on a seat in the lounge room when she saw Cassidy push Caposiena into the dining room. There was a short dividing wall between the dining room and the lounge room. Given her position at the time, Silva must have lost sight - however momentarily - of Cassidy and Caposiena when they were in the dining room at a position directly behind the dividing wall. It was only when Silva stood up and walked over to the archway between the dining room and lounge room that she was able to resume her observations of what was occurring.
- It is common ground that the effect of her evidence is that she did not see the firearm while Cassidy and Caposiena were at the front door or during the first moments of the struggle when Cassidy grabbed Caposiena and pushed him into the house. She saw the firearm for the first (and only) time after she had got up from her chair and saw them in the kitchen area (near to where Cassidy was shot).
- It is common ground that the effect of her evidence is that she never saw Caposiena stab Cassidy.
We return to her narrative.
Immediately after witnessing Cassidy shoot Caposiena, Silva ran to the front door. She began to scream for help. It was at this point that Cassidy turned his attention to Silva.
Silva gave evidence - which was not the subject of challenge during cross-examination - that Cassidy attacked her. He put the firearm to her head and pulled the trigger. She said that the shot did not fire. She said that Cassidy then commenced a ferocious physical assault. He grabbed her by the hair, repeatedly forcing her back into the door and wall. He then began to hit her head against the step of the front porch. Once he turned her around, he started to hit her head against the ground. Silva thought that she was going to die.
Two of Caposiena's neighbours - Garry Walker and Ingrid Walker - heard the commotion and went outside to see what was happening. Each of them gave evidence at trial.
Garry Walker and Ingrid Walker lived across the road from Caposiena. From his veranda, Garry Walker could see Silva being dragged into the house. He said she was on her 'backside' and was being pulled by her hair. She was screaming. Ingrid Walker described hearing a woman's scream, which 'sounded like someone was murdering a dog'. Both witnesses ran across the street and up to Caposiena's house.
Ingrid Walker said that she saw Cassidy 'bashing the shit out of a woman's head and bashing her on the floor'. She described Cassidy standing over Silva, grabbing her by the hair and 'repeatedly putting her head to the concrete'.
Garry Walker intervened. He said that he saw Cassidy 'belting into the girl', who was on the ground. He said that he grabbed Cassidy from behind, 'like a bear hug', and carried him outside. He then pinned Cassidy to the ground. At this stage, Ingrid Walker had returned to her home to contact the police. She did not see anything else.
While he was holding Cassidy, Garry Walker noticed that Cassidy was bleeding. He said that Cassidy was saying 'she stabbed me'. He took 'she' to be a reference to Silva. Defence counsel cross-examined Garry Walker about this aspect of his evidence. It was suggested that he may have misheard what Cassidy had said. However, his evidence was unequivocal: he heard Cassidy say 'she stabbed me'. The relevant part of his cross-examination was as follows:

[131]

The applicant argues that the evidence suggested a reasonable possibility of the existence of facts that would establish the defence of self-defence. She argues that the judge was wrong to find otherwise.
First, the applicant argues that the trial judge made certain errors in the course of the Ruling relevant to the application of s 322L.
She contends that his Honour was wrong to find that Caposiena must have seen the firearm before he stabbed Cassidy. While Silva saw the incident unfold, she did not observe Caposiena stabbing Cassidy. In the applicant's submission, this left open a reasonable possibility that Caposiena began to stab Cassidy before he (Caposiena) saw the firearm. If this occurred, there was a reasonable possibility that Caposiena resorted to lethal force without any reason to believe that he (Caposiena) was in danger of death or really serious injury. This leaves open the reasonable possibility that Caposiena may have acted unlawfully.
The applicant also contends that the trial judge failed to consider both limbs of s 322L. In particular, his Honour was required to consider whether Caposiena was acting lawfully and whether Cassidy knew that Caposiena was acting lawfully.
The applicant argues that his Honour only made findings with respect to whether Caposiena was acting lawfully. He did not, in her submission, go on to consider Cassidy's state of mind as required by s 322L(b) (i.e. whether Cassidy knew that Caposiena was acting lawfully). His Honour was required to do this, as s 322L would only remove self-defence if both requirements of s 322L are satisfied. Because his Honour did not make findings as to Cassidy's state of mind, the decision to remove self-defence from the jury's consideration miscarried.
On the facts of this case, the applicant submits that the trial judge erred in finding that s 322L was a bar to the raising of self-defence for the jury's consideration.
Ultimately, it was the applicant's case that the evidence suggested a reasonable possibility that Cassidy acted in self-defence - by defending himself to avoid being stabbed to death.
In this respect, the applicant takes issue with the trial judge's treatment of the evidence that Cassidy told Garry Walker that 'she' (Silva) stabbed him. In her submission, this was a contested issue and was not a basis upon which his Honour could properly dispose of the application for a direction on self-defence.
The failure to leave self-defence was productive of a substantial miscarriage of justice.

[132]

The respondent submits that the applicant failed to discharge the evidential onus imposed by s 322I; there is no evidence that suggests a reasonable possibility that Cassidy was acting in self-defence at the time he killed Caposiena.
The respondent effectively made two arguments.
First, the respondent submitted that Caposiena was acting lawfully (in self-defence) when he (Caposiena) started to stab Cassidy. This triggered s 322L and removed the availability of self-defence.
The respondent argued that the evidence supported the conclusion that the firearm would have been visible to Caposiena immediately upon Cassidy's entry. Cassidy procured entry to Caposiena's house by using a ruse, and immediately began to assault Caposiena. He was effectively committing aggravated burglary, entering the property as a trespasser and armed with an array of weapons. It follows, in the respondent's submission, that Caposiena was well-entitled to defend himself in the way he did; his actions could be characterised as a pre-emptive strike that was on any view proportionate to the threat he perceived.
Additionally, the respondent argues that it could not reasonably be suggested that Cassidy did not know that Caposiena was acting lawfully. Again, the respondent points to what Cassidy did and the purpose for which he did it: he was at the property to murder Caposiena. Once that is accepted, the only inference reasonably available is that Cassidy was well-aware that Caposiena was acting in self-defence when he (Caposiena) started his stabbing of Cassidy.
Second, the respondent contended that the trial judge effectively concluded on the evidence that the only reasonable view of Cassidy's use of the firearm to shoot Caposiena was that he did so as 'an aggressor in pursuit of his original design' being the plan to kill Caposiena. There was no change in the dynamic which might have altered the fact that, at all relevant times, Cassidy remained the aggressor in pursuit of this 'original design'. There was therefore no reasonable possibility that Cassidy acted in self-defence.

[134]

It is accepted that the threshold test in relation to the evidential onus of raising self-defence is now contained under s 322I; this requires an accused to point to or present evidence that 'suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence'.
There was a dispute between the parties at the hearing before us about whether this statutory threshold is more stringent than that which applied at common law.
The applicant contends that under the common law if the evidence raised 'the possibility' of self-defence, a trial judge was required to leave the issue of self-defence for the jury's consideration. It was submitted that the advent of statutory self-defence should not be seen as an attempt by the Parliament to exclude such an approach. Reliance was placed by the applicant upon Zecevic v DPP[23] and R v Kear.[24]
The respondent contends that s 322I(1) of the Crimes Act 1958 has altered the 'threshold test for the evidential onus for self-defence'. The respondent observes that, at common law, the evidential onus was met if there was 'any evidence from which a jury might infer' that the accused acted in self-defence. In support of that interpretation of the common law, the respondent also cited this Court's decision in Kear. In the respondent's submission, this meant that self-defence had to be left where it was a 'mere possibility'. The respondent argues that the test is no longer one of mere possibility. This, the respondent says, flows from the text of s 322I(1), which requires an accused to point to or present evidence that 'suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence'.
As the High Court has recently said, the 'starting point for the ascertainment of the meaning of a statutory provision ... is the text of the statute, whilst at the same time regard is had to context in its widest sense - including its historical context - and purpose'.[25]
The common law approach cannot be a substitute for the words of the statute. Whatever the approach might have been at common law, the statutory test is whether there is evidence that 'suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence'. The phrase 'reasonable possibility' within this test cannot mean 'mere possibility' or 'any possibility'. That would involve a re-drafting of the statute. Certainly, something more than a speculative, unrealistic, or fanciful possibility is required.
That said, a close analysis of the decision in Kear makes it plain that the touchstone of the threshold test at common law has always been one of reasonableness; the law has never allowed the issue of self-defence to be left to the jury in circumstances where the defence is fanciful or based upon mere speculation. For the defence to be left, it needed to be grounded in the evidence.
In Kear, each member of the Court delivered a separate judgment. However, despite using slightly different language, their Honours were clearly at one when it came to the applicable test.
Tadgell JA endorsed the approach that, before the issue of self-defence arises, there must be evidence which would enable 'a reasonable jury' to logically conclude that the accused acted in self-defence.[26]
Ormiston JA asked whether 'there was any evidence from which the jury might infer that the applicant acted in self-defence'.[27] At first blush, and read out of context, the reference to 'any evidence' might be regarded as setting a low bar. But that is not how his Honour applied the test. Rather, his Honour approached it in this way:

[140]

Later, in R v Yasso,[33] Vincent JA emphasised the need for there to be 'a sense of reality about the process'[34] of leaving defences to the jury for their consideration. In our view, this is a useful and grounded way to approach the question raised by the proposed ground of appeal: Is a claim of self-defence realistic in the circumstances?
The common law has therefore always required something more than a speculative, unrealistic, or fanciful possibility. As we have said, that is also the clear import of s 322I(1), which demands that evidence must suggest a reasonable possibility of self-defence.
This leaves the question about whether the test under s 322I(1) might be satisfied even if the plea may seem to the trial judge to be 'weak and tenuous'. The respondent suggested that evidence considered to be 'weak and tenuous' may not be sufficient to discharge an accused's evidential onus under s 322I(1).
At common law, self-defence was to be put to the jury even if the plea may seem to the trial judge to be 'weak and tenuous'.[35]
In our view, s 322I(1) should be construed to allow for the possibility that evidence might meet the test even if the judge considers the evidence of self-defence to be 'weak and tenuous'.
There are several reasons why it should be interpreted or applied in this manner.
First, the test is not whether there is in fact a 'reasonable possibility' that the accused acted in self-defence. The test is whether there is evidence that 'suggests a reasonable possibility' that the accused did so.
The word 'suggests' is important; it should not be overlooked. It makes it plain that it is not for the trial judge to evaluate and weigh the evidence pointed to or presented by an accused, still less draw any conclusions. To do so would intrude into the jury's arena.
Second, s 322I(1) refers also to 'facts that, if they existed, would establish self-defence'. This lends further support to the proposition that the judge should not engage in any form of fact-finding.
Third, s 322I(1) must be interpreted within the context of the constitutional role which the jury plays in determining questions of fact. Thus, in Zecevic, the plurality said:

[144]

It is important to recall that s 322L is designed to exclude a class of case from the operation of self-defence.
The common law permitted a plea of self-defence even when the charged act was carried out in response to the 'lawful conduct' of the victim.[39]
Under s 322L, an accused who responds to the 'lawful conduct' of another, which they know to be lawful, cannot rely upon self-defence.
Section 322L has thus modified the common law and narrowed the scope of self-defence. Self-defence is now confined to responses to unlawful conduct.
If it can be said that an accused responded to the 'lawful conduct' of another, and that the accused knew the conduct to be 'lawful', s 322L is engaged, and the accused is disqualified from relying upon self-defence. The two conditions under s 322L are cumulative. Both must be established before the operation of s 322L is enlivened and before self-defence is removed.
On the other hand, if there exists a reasonable possibility that either limb is not established, s 322L is not engaged and self-defence can still be relied upon.
When s 322L and s 322I(1) are read and applied together, there are two questions for the trial judge to consider in deciding whether self-defence is available:
- The first question for the trial judge is whether there is evidence which suggests a reasonable possibility that the victim's conduct was not lawful.[40]
- The second question is whether there is evidence which suggests a reasonable possibility that the accused did not know the conduct to be lawful.
If there is evidence which suggests either of these reasonable possibilities, s 322L does not operate to make self-defence unavailable.
That, however, is not the end to the enquiry about whether self-defence should be left to the jury. It simply means that reliance upon self-defence is not excluded by s 322L.
Section 322L does not define the requisite components of self-defence. The elements of self-defence are to be found in s 322K. That being the case, the question of whether the facts suggest a reasonable possibility of self-defence must still be primarily resolved by reference to the terms of s 322K. Section 322L tells us what (or what class of case) cannot amount to self-defence; whereas, s 322K tells us what amounts to self-defence.
We now turn to this issue.

[148]

At the risk of some repetition, it is helpful to summarise the effect of the interaction of ss 322I, 322K and 322L.
The threshold test for the raising of self-defence is governed by s 322I. The question asked by s 322I is whether the accused has satisfied the evidential onus by pointing to 'evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence'.
The meaning of self-defence is primarily defined by the elements of self-defence under s 322K. However, s 322K must also be read in the light of s 322L. Section 322L excludes a class of case from the ambit of self-defence under s 322K.
The threshold question under s 322I - whether the facts suggest a reasonable possibility of self-defence - must therefore be answered by reference to self-defence as defined by s 322K, and as confined by s 322L. Thus, both s 322K and s 322L inform the threshold question under s 322I.
If the facts suggest a reasonable possibility of self-defence by reference to the elements of s 322K, and a reasonable possibility that self-defence is not excluded by reason of the application of s 322L, then the evidential onus under s 322I is discharged and self-defence must be left.
Insofar as the threshold question is informed by s 322K, the questions to be addressed by the trial judge are (in the case of murder):
- Is there a reasonable possibility that the accused believed his conduct was necessary to defend himself from the infliction of death or really serious injury? (s 322K(2)(a)); and
- Is there a reasonable possibility that the conduct was reasonable as perceived by the accused (s 322K(2)(b))?
Insofar as the threshold question is informed by s 322L, the questions to be addressed by the trial judge are:
- Is there a reasonable possibility that the accused was responding to conduct of the victim which was not lawful (s 322L(a)); or
- Is there a reasonable possibility that the accused did not know the conduct of the victim to be lawful (s 322L(b))?
If either of the reasonable possibilities under s 322L exist, it would follow that the facts suggest a reasonable possibility that s 322L does not apply to remove self-defence. This means that s 322L would not stand in the way of the accused discharging the evidential onus under s 322I.
However, whether the evidential onus under s 322I is ultimately discharged by the accused will depend upon whether the accused can point to facts which suggest there is a reasonable possibility of self-defence under the elements of s 322K.[42]
On the other hand, if the only reasonable view of the evidence is that the accused was responding to lawful conduct, and that at the time the accused knew the conduct to be lawful, then s 322L applies. It would follow that, by reason of the application of s 322L, self-defence under s 322K would not be available. The accused would fail to discharge the evidential onus of raising self-defence under s 322I.

[157]

The statutory provisions are consistent with the underlying requirement that self-defence must involve the accused responding in defence of himself to the conduct of the victim:
- Under s 322K(2)(a), the accused must believe that the conduct is necessary in self-defence. As the authorities cited above show, this involves the accused believing that the response was necessary in defence of himself.
- Under s 322K(2)(b), the conduct must be 'a reasonable response in the circumstances as the person perceives them'.[50] Self-evidently, this explicitly demands that the conduct of the accused is responsive to the conduct of the victim.
- Section 322L provides that self-defence does not apply if the accused 'is responding to lawful conduct'[51] of the victim. While s 322L is directed at the question of the lawfulness of the conduct of the victim, it is predicated upon the anterior or threshold fact that the accused responded to that conduct.
- Section 322I(2) provides that if the accused satisfies the relevant evidential onus, 'the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence'.[52] Again, this reinforces that the accused's conduct must have been carried out for a defensive purpose in response to the threat posed by the victim.
This brings us to our fourth (albeit related) observation: self-defence cannot be used as a pretext to carry out a criminal purpose.[53]
If a person kills in pursuit of an original criminal design to commit murder, it could hardly be said the person acted in self-defence. In these circumstances, it is difficult to see how they could have responded to the conduct of the victim and formed the belief that it was necessary to engage in the fatal act to defend themselves from the risk of death or really serious injury.
Certainly, the justificatory or exculpatory effect of self-defence[54] would be entirely subverted if it could be invoked by a person who planned and fully intended to harm the victim in a particular way and succeeded in doing precisely that, and so acted irrespective of any action taken by the victim.
Of course, whether the accused acted in self-defence, or in pursuit of an original criminal design, will necessarily be fact dependent.

[158]

It is necessary to breakdown - and to some degree repeat - the import of the applicant's argument:
- The evidence allowed for the reasonable possibility that Caposiena commenced to stab Cassidy without then realising that Cassidy was armed with a firearm.
- Caposiena has thus resorted to the use of lethal force with the knife to respond to (what he perceived to be) a non-lethal threat posed by Cassidy (i.e. unlawful intrusion and assault).
- This lethal force resorted to by Caposiena caused the death of Cassidy.
- Section 322K(3) is therefore engaged when assessing whether Caposiena acted in lawful self-defence. For Caposiena to have acted in lawful self-defence, he must have believed 'that the conduct was necessary to defend himself from the infliction of death or really serious injury' and the conduct 'must have been a reasonable response in the circumstances as he perceived them' (s 322K).
- As the evidence suggests a reasonable possibility that Caposiena resorted to lethal force in response to a non-lethal attack (at least as perceived by Caposiena), there is a reasonable possibility that Caposiena's response was excessive or disproportionate.
- If so, there is a reasonable possibility that Caposiena did not believe that the conduct was necessary to defend himself from the infliction of death or really serious injury or the conduct was not a reasonable response in the circumstances as he (Caposiena) perceived them (s 322K).
- The evidence therefore suggests a reasonable possibility that Caposiena was not acting in lawful self-defence when he stabbed Cassidy. This knife conduct, which culminated in four stab wounds, was a single composite activity.
- It follows that self-defence remained available for Cassidy's shooting of Caposiena (s 322L); in other words, it was not excluded or removed by s 322L.
- When Cassidy shot Caposiena, he (Cassidy) was seeking to repel - in self-defence - Caposiena's unlawful and lethal knife attack.
- There is a reasonable possibility that Cassidy believed that his conduct (shooting Caposiena) was necessary to defend himself from the infliction of death or really serious injury (threatened by Caposiena's knife attack) and that it was a reasonable response in the circumstances as he perceived them (s 322K).[55]
- Self-defence had therefore been sufficiently raised on the evidence for Cassidy's shooting of Caposiena, and should have been left to the jury (s 322I).
The applicant's case effectively invites a consideration of self-defence at two levels:
- Caposiena's stabbing of Cassidy: If Caposiena's stabbing of Cassidy was 'lawful conduct', then by virtue of s 322L, self-defence would not have been available to Cassidy for his shooting of Caposiena. That would be an end to the matter. On the other hand, if Caposiena's stabbing of Cassidy was not 'lawful conduct', then s 322L would not have excluded or removed the availability of self-defence to Cassidy for his shooting of Caposiena. Whether Caposiena's stabbing of Cassidy was 'lawful conduct' invites a consideration of whether Caposiena acted in lawful self-defence when he stabbed Cassidy (in response to Cassidy's forceful intrusion and assault). That must be considered by reference to the elements of self-defence under s 322K.
- Cassidy's shooting of Caposiena: Assuming s 322L has not made self-defence unavailable, the central claim is then whether self-defence was otherwise raised on the evidence for Cassidy's shooting of Caposiena (in response to Caposiena's stabbing of Cassidy or use of the knife). That must also be considered by reference to the elements of self-defence under s 322K.
We will deal with each of these in turn.

[162]

When reading his ruling in its entirety, we take his Honour to be saying that this was the only reasonable view of the evidence.
As to the timing of Cassidy's presentation of the firearm - and its visibility to Caposiena - we make these observations about the state of the evidence.
Silva gave evidence of some observations of Cassidy carrying a plastic bag while he was outside the house, and then when he was at the front door talking to Caposiena. But she did not see a firearm. It can be inferred that the firearm was in some way concealed, whether on his person or in the plastic bag, at the time that Cassidy initially gained entry to the house. It can also be inferred that Caposiena - who was in a heightened state of anxiety about Cassidy's presence - would not have unlocked and opened the door had the firearm been visible.
Silva makes the following observations after Cassidy's intrusion into the home.
- The men were under her observation during the initial phase of the struggle in the front entrance area (when she was initially seated in the lounge room).
- The men then moved quickly into the dining area towards the kitchen. In so doing, they briefly passed behind a wall which partially divided the lounge room from the dining area. This concealed the men momentarily from Silva's view.
- As they passed behind the dividing wall, Silva stood up and walked to the other side of the dividing wall. Silva then had the men under her observation again when they were in the dining area near to the kitchen. This is where Caposiena was shot.
- She saw the firearm for the first and only time once they came into her sight again in the dining area near to the kitchen. At this point Silva saw Cassidy holding the firearm. Cassidy was pointing the firearm at Caposiena's head. Caposiena was trying to hold Cassidy's hand to avoid the firearm. Cassidy then shot Caposiena.
Silva's evidence on this issue must be considered in light of her overall account that this was a fast moving and brief physical struggle, lasting a matter of seconds in total, during which the men were physically entangled with each other.
Given that Cassidy's sole purpose for his forceful intrusion and assault of Caposiena was to shoot him dead with the firearm (we expand upon this below), it can be inferred that Cassidy must have ensured he had ready access to the firearm. He clearly presented the firearm within seconds - given that the entire episode culminated in his shooting of Caposiena only a matter of seconds after his entry.
That all said, bearing in mind the dynamic nature of the physical struggle, and Silva's failure to remark upon the firearm in those first few seconds at the front door area, the evidence allows for the scenario that there may have been some fleeting delay in Cassidy's complete withdrawal of the firearm (from where he had secreted it).
As to the timing of Caposiena's stabbing of Cassidy, relative to Cassidy's presentation of the firearm, we make these observations about the state of the evidence.
While it is not known precisely when Caposiena commenced stabbing Cassidy, the stabbings must have occurred before Caposiena was shot. Once shot, Caposiena was immediately disabled on Silva's evidence. This is also consistent with the medical evidence.
The trial judge found - and this was not disputed at trial or on this application - that the stab wounds must have been inflicted by Caposiena to Cassidy's back and buttock and 'obviously occurred while the two men were connected with each other during the struggle'.
There is no direct evidence which supports the hypothesis that Caposiena started stabbing Cassidy in the first moments upon Cassidy's forceful entry. On the other hand, the evidence, including Silva's evidence, does not exclude this hypothesis. Silva never saw Caposiena stab Cassidy. The speed and dynamic nature of the physical confrontation might account for this. Also, as we have said, Caposiena held the knife in a state of readiness behind the front door when verbally engaging with Cassidy (prior to Cassidy's forced entry). It can be inferred that Caposiena was in an increased state of fear.
We are of the view that the evidence does suggest a reasonable possibility that Caposiena deployed the knife at the first sign of Cassidy's intrusion. This might also have involved the fatal stab wound.[57] We also allow for the possibility that at this moment Caposiena may not have seen the firearm; Cassidy might still have been in the process of withdrawing it. This hypothesis is more than mere speculation.
It follows that we are of the view that it was open on the evidence that Caposiena commenced to stab Cassidy before the firearm was withdrawn and became visible to Caposiena (albeit these actions could not have been separated by much time).
The trial judge concluded that it could readily be inferred from Silva's evidence that Caposiena 'realised from the forceful entry of Cassidy into the premises that Cassidy was in possession of a firearm'. The trial judge went on to conclude that Caposiena used the knife to repel the threat of being shot with the firearm.
Given our interpretation of the evidence, it follows that, with respect, we do not share the trial judge's conclusion. Of course, it must have become apparent to Caposiena that Cassidy was armed with a firearm, presumably within moments of Cassidy's entry. But this is not the issue we are now grappling with. We are presently addressing the applicant's argument that the evidence suggested a reasonable possibility that Caposiena first resorted to the use of the knife at the front door, and when he did so he was unaware of the presence of the firearm.
Having reached the conclusion that it was open on the evidence that Caposiena started to stab Cassidy before seeing the firearm, we must then consider whether this evidential framework suggests a reasonable possibility that Caposiena did not act lawfully.
We would certainly agree that if Caposiena stabbed Cassidy in response to Cassidy's brandishing of a firearm upon forcefully entering the premises, the only reasonable inference available would have been that Caposiena must have been acting in self-defence and thus lawfully. If Caposiena realised that Cassidy was armed, then it must follow that Caposiena acted in the face of a threat of death or really serious injury to himself. That conclusion would have been irresistible. In these circumstances, s 322L would have patently applied to exclude the availability of self-defence to Cassidy for his shooting of Caposiena.
We think, however, that as there was a reasonable possibility that Caposiena commenced to stab Cassidy before realising that Cassidy had a firearm, the facts suggest a reasonable possibility - although a weak one - that Caposiena was not at that moment acting in lawful self-defence.
Of course, the manner of Cassidy's intrusion into Caposiena's home, and his immediate physical violence and aggression upon entry, must have unquestionably indicated to Caposiena that Cassidy intended to do him real harm. Caposiena was entitled to defend himself to repel this intrusion and attack. Allowance must be made for the fact that Caposiena had to react instantly to what was obviously imminent danger. Caposiena could not be expected to weigh precisely the exact measure of self-defensive action which was required. As juries are directed, account must be taken of the fact that calm reflection cannot always be expected in such a situation.
Even accepting all that, it would still have been open to a jury, acting reasonably, to have viewed Caposiena's deadly use of force - in the absence of seeing the firearm - to have been excessive to the threat posed by Cassidy as perceived by Caposiena.
This may have had a bearing on the jury's assessment of whether Caposiena believed it necessary to use deadly force with the knife in response to the danger then posed by Cassidy (and whether this response was reasonable as perceived by him).
To be clear, this possibility that Caposiena's conduct may not have been lawful was a weak one. Had Caposiena survived, and been charged with Cassidy's murder, Caposiena would have had a powerful case for self-defence.
But, as we have discussed above in our legal analysis,[58] if the applicant could point to evidence which suggested a reasonable possibility that Caposiena was not acting in self-defence and thus not acting lawfully, s 322L would not operate to preclude the applicant from discharging the evidential onus under s 322I.
Mindful of the constitutional role played by the jury on questions of fact, especially on questions of proportionality, and not without some hesitation, we have concluded that the hypothesis that Caposiena's stabbing of Cassidy was not lawful rose above being fanciful, speculative or unrealistic.[59]
We think the evidence suggested a reasonable possibility that Caposiena was not acting in self-defence and thus not acting lawfully.
It was therefore an error for the trial judge to have concluded:
- that the evidence excluded the reasonable possibility that Caposiena was not acting lawfully; and
- that, by reason of the application of s 322L, the applicant had failed to discharge the evidential onus of raising self-defence under s 322I for Cassidy's shooting of Caposiena.
To resolve the s 322L issue in the applicant's favour, it is sufficient to conclude there was a reasonable possibility that Caposiena was not acting lawfully (s 322L(a)). We therefore do not need to resolve whether there is also evidence which suggests a reasonable possibility that Cassidy did not know Caposiena's stabbing to be lawful (s 322L(b)).[60]
Importantly, however, for the applicant to make good this ground of appeal, she must do more than point to evidence which suggests a reasonable possibility that Caposiena's conduct was not lawful (s 322L). The existence of such a reasonable possibility simply means that s 322L did not stand in the way of the applicant discharging the evidential onus under s 322I.
In order to discharge the evidential onus under s 322I, the applicant had to point to evidence which suggested a reasonable possibility that, in shooting Caposiena, Cassidy acted in self-defence, as defined under s 322K.
It is at this point that the applicant's case falls down.
We now turn to this issue.

[164]

Even accepting that there was a reasonable possibility that Caposiena's use of the knife was unlawful, in our opinion, the only reasonable view of the evidence is that Cassidy shot Caposiena, not in response to Caposiena's use of the knife, but in pursuit of his original design to kill Caposiena.
In other words, despite there being a reasonable possibility that Caposiena's knife conduct was unlawful, the evidence never suggested a reasonable possibility that Cassidy believed it was necessary to shoot Caposiena to protect himself (Cassidy) from the infliction of death or really serious injury.
There are a number of factors which support our conclusions.
First, the evidence is that Cassidy was heavily committed to killing Caposiena when he attended the front door of Caposiena's home:
- There was animosity between the applicant and Caposiena, and Cassidy was bound to the applicant's side.
- There was evidence from multiple sources of the applicant having entreated Cassidy to kill Caposiena.
- On occasions prior to the day of the killing, Cassidy had been to the area of Caposiena's premises to conduct surveillance.
- Cassidy had a 'to-do' list on his mobile phone, which included references to 'getting him alone', 'one bullet', 'body transport', 'knife', 'bike or car that's not mine'.
- When he attended the address on the day of the killing, he drove in a car that did not belong to him. He parked the car a block away from Caposiena's house. He first walked by the house, appearing to conduct surveillance, then most likely returned to the car to retrieve the firearm and other items which were in a plastic shopping bag, before attending at Caposiena's front door.
- He carried with him a loaded cut down rifle, two knives, and some gaffer tape.
- Given the speed and ease with which Cassidy produced and discharged the firearm once inside the premises, it can be inferred that Cassidy had ensured the weapon was instantly accessible, loaded and ready to fire.
- He also had in his possession a hand-drawn diagram of Caposiena's premises, showing access and lighting points.
We think the evidential matrix strongly bespoke of Cassidy being irretrievably fixed on a course of conduct to kill Caposiena. Cassidy was not there to engage in any way with Caposiena or to respond to anything which Caposiena did. He was there to kill him.
Indeed, and although this is by no means dispositive, we observe that this is precisely what defence counsel argued at the third trial. The defence case at that trial was that Cassidy was unrelenting in his resolution to kill Caposiena that day. The applicant's trial counsel went to the jury upon the basis that Cassidy had his own motive and plan to shoot and kill Caposiena. In her final address, the applicant's trial counsel submitted that Cassidy's plan to murder Caposiena - as revealed by his conduct at the time of the killing - demonstrated that he was 'unhinged' and 'out of control'. This could not, trial counsel argued, have been the subject of 'a rational thoughtful and negotiated plan' with the applicant.
Second, the evidence is that Cassidy then sought entry to the house for the sole purpose of carrying out the plot to kill Caposiena:
- His request to shake Caposiena's hand was a pretext to get Caposiena to open the safety door.
- The moment Caposiena unlocked and opened the front security door, Cassidy immediately launched a physical attack upon him. Cassidy aggressively held Caposiena's hand and forcefully pushed Caposiena further inside the house.
- There is no evidence that Caposiena displayed any act of physical or verbal aggression before Cassidy's forceful entry and attack upon him. Indeed, Caposiena addressed Cassidy in apologetic or conciliatory language.[61]
Third, Cassidy's murderous intent had already been fully formed, and his murderous assault was actively underway, before Caposiena ever produced or used his knife.
Cassidy's intention to kill did not develop in response to Caposiena's conduct.
Cassidy's murderous assault at the front door was not provoked or induced by Caposiena's conduct.
As the authorities show, an original aggressor may still be entitled to rely upon self-defence. In those cases, however, the original aggressor is usually faced with a disproportionate level of force from the victim. The original aggressor's intention to kill or do really serious injury forms at some point after the hostilities have commenced, and in response to the victim's escalation.
It would be a perversion of the facts to suggest that this might have happened here.
This was not a situation where Caposiena - through his unlawful use of the knife - might have 'escalated' the conflict to one which induced Cassidy's murderous assault upon him (Caposiena). In no sense did Caposiena's own conduct - even assuming it was excessive and unlawful - bring about a deadly attack upon himself by Cassidy.
It is implausible to suggest that Cassidy formed the belief that it was necessary to resort to the use of lethal force to repel the threat posed by Caposiena's use of the knife in circumstances where Cassidy had already fully committed to kill Caposiena.
Cassidy could have intended no lesser harm than killing Caposiena. This murderous intention was cemented by the time Cassidy forcefully entered the house. There was thus no scope for Cassidy to intend a greater level of harm in response to anything which Caposiena did.
As Cassidy forcefully entered the house, he had committed himself to fatally shooting Caposiena with his sawn-off shot gun. Cassidy had committed to using this weapon, for this purpose, at this time. In these circumstances, it cannot be sensibly inferred that Cassidy's use of the firearm was precipitated by anything Caposiena did.
It seems to us that the only reasonable view of the evidence is that, in shooting Caposiena, Cassidy acted quite independently of any threat posed by Caposiena's use of the knife.
Assuming Cassidy became aware of Caposiena's use of the knife, then the only reasonable view of the evidence is that Cassidy persisted with his murderous attack irrespective of any action taken by Caposiena; he killed Caposiena in pursuit of his original design to kill him and he did so despite Caposiena's resistance.
Fourth, the evidence of Silva bespeaks of a single, short, continuous and rapid attack by Cassidy against Caposiena, culminating with Cassidy shooting Caposiena.
There was no realistic room, in the time available, in the contextual circumstances presented by the evidence, or in the dynamics between the two men, for Cassidy's conduct to have transformed from one of murderous attack in pursuit of his original design to one of self-defence. The evidence only speaks of one brief and unbroken murderous attack; from the beginning (with Cassidy's forceful intrusion with intent to kill) to the end (with Cassidy shooting Caposiena to the head).
The judge described it as 'a very quick and dynamic struggle'.[62]
As to the brevity and speed with which the incident unfolded, the import of Silva's evidence is that the time which passed from Cassidy's forceful entry through to his shooting of Caposiena in the head was very brief. According to Silva, it lasted 'a matter of seconds'. Her estimate of time was unchallenged.
The struggle covered a modest distance of some metres within a confined space - across an entrance hall and dining room. The men travelled this space quickly - joined together - in one fluid movement. The struggle and movement were uninterrupted.
The hypothesis postulated by the applicant requires Cassidy to have instantaneously broken off his murderous resolve, despite being hell-bent on killing Caposiena at the moment of his forceful intrusion. By then, Cassidy was well advanced in carrying out his criminal design to kill Caposiena.
Certainly, there was, on all the facts, no evidence which suggested a 'reasonable possibility that [the] incident had come to an end and a new incident had commenced.'[63] There is no evidence that Cassidy acted defensively; for example, there is no evidence that he recoiled, retreated, broke off, showed concern for his own safety, paused, hesitated or sought to de-escalate the situation. To infer any of this, would invite mere speculation, and indeed fly in the face of the evidence.
Fifth, it is completely unrealistic to suppose that Cassidy held back on producing the firearm until he realised that Caposiena was using a knife, and thus only resorted to the firearm in defence of himself. The applicant's self-defence hypothesis seems to assume this.
The only rational inference available is that Cassidy initially armed himself, loaded the firearm, and arranged for ready access to it, not to defend himself from any possible response from Caposiena, but to carry out his original design to kill Caposiena.[64]
Cassidy's access to, and presentation of, the firearm was integral to his murderous attack. It can be inferred that Cassidy immediately moved to withdraw the firearm upon the launch of his murderous attack at the front door. There is no other inference available. On this point, we are in full agreement with the trial judge.
On the evidence, Cassidy's resort to the presentation (and use) of the firearm was independent of anything which Caposiena did with the knife.
The only rational view of the evidence is that when Cassidy withdrew the firearm, he did so as soon as he could, not in self-defence, but as a necessary step in pursuit of his original design to shoot Cassidy dead.
That is so, even allowing for the reasonable possibility that Caposiena commenced to stab Cassidy as Cassidy crossed the threshold through the front door, and before the firearm became visible to him (Caposiena). That scenario focuses only upon Caposiena's state of mind but says nothing about Cassidy's state of mind; on all the evidence, Cassidy was concentrated on carrying out his plan to kill Caposiena.
Sixth, the unlawfulness of Caposiena's conduct is ultimately immaterial in the circumstances of this case.
That Caposiena may have engaged in unlawful conduct, was inconsequential to the development of Cassidy's intention to kill and to his act in shooting Caposiena.
Once it is accepted - as we have - that Cassidy did not shoot Caposiena in response to Caposiena's stabbings, but did so in pursuit of his original design, then the question of whether Caposiena's conduct is characterised as lawful or unlawful is a distraction.
It seems to us that the argument at trial - and indeed much of the argument at the hearing of the application before us - was unduly fixated upon the question of Caposiena's conduct under s 322L rather than upon Cassidy's conduct under s 322K.
Ultimately, whether the trial judge was required to leave self-defence in this case fundamentally turned upon the applicability of self-defence to Cassidy's shooting of Caposiena, and not the applicability of self-defence to Caposiena's stabbing of Cassidy.
In summary, Cassidy embarked upon a course of conduct to kill Caposiena. As he forcefully entered Caposiena's home, Cassidy was in the throes of realising this murderous plan. His murderous attack had not only commenced; it was in full swing and only seconds from coming to fruition. The evidence bespeaks of Cassidy's unwavering focus and determination to carry out this original design to kill Caposiena immediately.
The hypothesis that, in the midst of this murderous attack, Cassidy instantly abandoned his resolve, or weakened in his determination, to complete his original design to kill, has a real air of unreality about it. As does the notion that his conduct was 'transmuted in split seconds into self-defence'.[65]
The claimed inference that Cassidy formed the belief that it was necessary to resort to the use of the firearm to protect himself in response to Caposiena's use of the knife - rather than to fulfil his original design to kill - is far removed from any rational view of the evidence. At best it is 'no higher than speculation or surmise.'[66] It could never have satisfied the test under s 322I.

[170]

However, the defence at trial did challenge Garry Walker's evidence or, at the very least, tested his evidence, raising the hypothesis that Walker may have misheard Cassidy's words (i.e. it being suggested that Cassidy could have said 'he stabbed me').
Additionally, at the hearing of this application before us, it was also argued that Cassidy himself might have misspoken (given that he was close to death, his ability to communicate rationally and logically may have been severely compromised, so the applicant says).
The reliability of Garry Walker's account of Cassidy's statement was thus put in issue - as well as the reliability of Cassidy's own words (accepting that they were uttered). In this sense, Garry Walker's evidence was contested, or at least its import was.
In our view, Walker's evidence was cogent.[69] It was unequivocal. Despite being tested, Walker steadfastly maintained that Cassidy said, 'she stabbed me.' Some support for why Cassidy may have (wrongly) believed that Silva - not Caposiena - stabbed him can also be found in the evidence.[70]
The 'Cassidy misspoke' argument also verged on speculation.[71]
With all that said, the defence would have been entitled to address the jury on these issues. Had the determination of whether the trial evidence suggested a reasonable possibility of self-defence hinged upon the acceptance of Garry Walker's evidence, then we are inclined to the view that the issue should have been left to a jury to decide.
A trial judge would risk trespassing into the jury's domain of assessing contested facts, and resolving questions of reliability, were they to do otherwise. It may be that this explains why his Honour hesitated in decisively resolving the self-defence issue upon the basis of Garry Walker's evidence.
Importantly, however, our conclusion on this application - that the evidence did not suggest a reasonable possibility that Cassidy believed it was necessary to shoot Caposiena in self-defence - does not rest upon the evidence of Garry Walker.
We have concluded that - even if Cassidy realised he was being stabbed by Caposiena - he did not kill Caposiena in response to that conduct in self-defence but did so in pursuit of his original plan to murder him.
Of course, Garry Walker's evidence strengthens the conclusion that Cassidy attacked and killed Caposiena in pursuit of his plan to murder him, and not in response to being stabbed by Caposiena. Even without Walker's evidence, the evidence did not suggest a reasonable possibility that Cassidy acted self-defence in shooting Caposiena. Walker's evidence makes self-defence even more unrealistic.

[173]

Section 12 of the JDA provides that, after the close of evidence, trial counsel must request the trial judge to give particular directions in respect of the matters in issue and evidence relevant to those matters.
Section 14 provides that the trial judge must give the requested direction unless there are good reasons for not doing so.
Where a direction about self-defence is not requested, the judge must still so direct the jury if the judge considers that there are substantial and compelling reasons to direct the jury about self-defence despite the absence of a request (s 16).
At the hearing of this application, the respondent identified a threshold issue.
The respondent contended that defence counsel appearing at the third trial did not, contrary to their obligation under s 12 of the JDA, request a direction on self-defence.
The respondent submits that defence counsel's failure to request a direction on self-defence effectively precludes the applicant from raising the issue on appeal.
That 'failure', the respondent submitted, may not have been an oversight, but the result of a legitimate forensic decision to abandon the defence at trial. The respondent argued that the hypothesis that Cassidy may have shot and killed Caposiena in self-defence would have forensically undermined the defence case that Cassidy was 'unhinged' and 'out of control'. This forensic explanation, rather than oversight, explains the absence of a request for self-defence to be left to the jury.
The applicant characterised the respondent's submissions on this issue as 'very unfair, very unmeritorious and very unrealistic'. She argued that defence counsel's failure to request a direction - if there was such a failure - needs to be viewed in the light of what occurred at the first and second trials, as well as what the trial judge said prior to the commencement of the third trial. The applicant pointed to the trial judge's insistence that his earlier ruling stood. His Honour was, according to the applicant, dismissive of any attempt to have the matter further agitated. In the applicant's submission, in the face of this judicial resistance, defence counsel was justified in the course they took.

[186]

The judge's reference to 'the self-defence non-issue' - made during the cross-examination of the only witness to the events that led to the death of each man, and whose evidence was clearly central to any defence - would have signified to defence counsel that the judge (still) did not consider self-defence to be available on the evidence.
Having regard to the judge's position immediately prior to the commencement of the third trial, the judge's intervention was apt to convey to the trial participants that there had not been a 'dramatic change' in the evidence, and, consequently, that the judge's ruling '[would] stand'. That was especially so in circumstances where the effect of Silva's evidence did not differ in material respects from the evidence she gave at the first and second trials.
It seems to us that a reasonable interpretation of what occurred is that the applicant sought to have self-defence left as an issue in the third trial, just as she had in the first and second trials.
We can detect no material change in the conduct of the defence case which might explain a different approach with respect to the use of self-defence on the third trial from the first and second trials. The exchange with trial counsel above strongly suggests that their approach to self-defence persisted deep into the third trial.
Importantly, there was no apparent evidential basis to have the trial judge's ruling re-visited at the conclusion of the evidence. The trial judge's ruling and reasons therefore stood at the conclusion of the evidence of the third trial. The judge made this plain. We infer defence counsel must have thought it futile to attempt to further agitate the matter (and we are prepared to proceed on the basis that it would have been).
We are prepared to infer that this background explains the absence of an explicit request by the applicant's trial counsel at the conclusion of the evidence for a direction on self-defence pursuant to s 12 of the JDA.
In our view, the applicant can be taken to have effectively - albeit implicitly - made the request for self-defence to be left pursuant to s 12. Further, the judge's ruling subsisted until the end of the trial.
We would accept the respondent's argument that the defence case that Cassidy was unhinged and had a plan to kill Caposiena on a frolic of his own might be viewed as inconsistent with self-defence. We have touched upon this above. However, given the procedural history and the exchanges between the trial judge and trial counsel in relation to the issue of self-defence, we are not persuaded that an inference should be drawn that trial counsel's omission to request formally that this issue be left must have been attributable to a forensic decision.
That all said, it would have been preferable for the applicant's trial counsel to have formally confirmed their request for the direction at the conclusion of the evidence. Strict compliance with s 12 required this. Quite apart from anything else, it would have removed any doubt about what directions the defence sought at the conclusion of the third trial.
Accepting, as we do, that there was a request for the direction, then pursuant to s 14 of the JDA, the trial judge was required to give the jury the requested direction unless there were good reasons for not doing so. His Honour addressed this at the conclusion of his written ruling (given at the first trial and adopted on the second and third trials):

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Cases Cited (12)

Edmunds v The King [2025] VSCA 31 (11 March 2025)

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