Prosecution v Accused

2 The offence of defensive homicide was inserted as s 9AD of the Crimes Act 1958 by the Crimes (Homicide) Act 2005 (77/2005) and was abolished by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (63/2014). Thus, it is only available as a verdict for homicides alleged to have been committed between 23 November 2005 and 1 November 2014. Section 9AD was in the following terms:

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.

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.

3 The indictment upon which Mr Ayyad was tried contained no particulars of the circumstances of the offences alleged beyond the bare assertion of their having been committed, by reference to their statutory descriptions, on a specific date and at an identified place. Although attempted defensive homicide was not pleaded by the Crown as an alternative offence, it seemed to have been common ground between the prosecution and defence counsel, at least in the early stages of the trial, that, as well as the charges on the indictment, attempted defensive homicide was an available verdict in this case. However, neither party advanced any argument based on attempted defensive homicide to the jury. Both counsel mentioned it to the jury as being a matter that would be addressed in directions they would receive before considering their verdict.

4 Upon considering the offence of attempted defensive homicide whilst finalising those directions to the jury, I became concerned as to whether it was in fact necessary, or even permissible, to direct the jury as to that offence in the circumstances of this case. I invited submissions from counsel on the question and postponed charging the jury.

5 The prosecutor provided a helpful outline of his submission on this point, which was to the effect that attempted defensive homicide was not an available alternative verdict for the jury to consider in this case. He expanded briefly on this outline in oral argument. Defence counsel provided no written argument and contented himself with expressing 'accord' with the prosecutor. At no stage did he submit that attempted defensive homicide should be left to the jury for their consideration in the event that they acquitted the accused of attempted murder.

6 There are three first instance decisions of this Court that have considered the question whether attempted defensive homicide is an available alternative verdict on an indictment alleging attempted murder. The question has not been considered by the Court of Appeal, although it has been mentioned at least once.[1] Further, speaking extra-curially, Justice Weinberg raised the same question in the context of an examination of self-defence doctrine following the enactment of the Crimes (Homicide) Act 2005, which created the offence of defensive homicide.[2]

7 The first of the three cases to which I was referred was R v Pepper ('Pepper'),[3] in which Whelan J ruled that attempted defensive homicide should be left to the jury in a case of attempted murder where self-defence is an issue. His Honour considered this to be the necessary consequence of his having decided that, in a case of attempted murder where the issue of self-defence is raised, the jury must apply the definition of self-defence found in s 9AC of the Crimes Act 1958 and not self-defence as understood at common law; that is to say, 'statutory self-defence' was also relevant to attempted murder, not solely to murder. Both the prosecutor and defence counsel in Pepper submitted, without argument, that if the 'new Act'[4] applied to the case, then attempted defensive homicide had to be left to the jury as an alternative verdict. His Honour accepted that submission whilst acknowledging that he had done so without the benefit of argument on the point. In the other two cases, R v Carrington[5] and DPP v McAllister,[6] the trial judges followed the decision in Pepper. For the reasons that follow I must respectfully disagree with the judges who held that attempted defensive homicide was an available alternative verdict on an indictment alleging attempted murder.

8 As already noted, the indictment upon which the accused was tried did not contain a charge of attempted defensive homicide. This raises the question: in what circumstances may a jury convict an accused of an offence with which he has not been charged?

9 There are a number of provisions in the Crimes Act 1958, generally found between ss 421 and 435, that permit certain specific alternative verdicts to be returned on the trial of indictments charging other, usually more serious, offences. They cover a range of different principal offences: murder (ss 4 and 421), serious injury by gross violence (s 422), culpable or dangerous driving causing death (s 422A), certain sexual offences (s 425), identity crimes (s 426) and others. Confined as they are to certain specific offences, none of the provisions referred to provides an answer to the above question, where the offence charged is not one specifically provided for.

10 The question of alternative verdicts in circumstances where no specific statutory provisions applied was considered by the Full Court of this Court in R v Salisbury.[7] The Court was considering whether, on the trial of a presentment alleging maliciously inflicting grievous bodily harm, the trial judge should have left an alternative possible verdict of one of the then lesser offences of assault (assault occasioning actual bodily harm or common assault) for the jury's consideration. Although the Crimes Act 1958 had for some time contained enactments that provided for alternative verdicts in certain specific cases such as those referred to above, the then law of Victoria as to available alternative verdicts (sometimes called 'included offences') where no statutory provisions applied, was the common law. In a joint judgment, their Honours (Young CJ, Nelson and Harris JJ) said:

The common law position with respect to alternative verdicts was stated by the Court of Appeal in R v Lillis [1972] 2 QB 236, at p 240; [1972] 2 All ER 1209; in these words: 'On an indictment charging felony the accused could be convicted of a less aggravated felony of which the ingredients were included in the felony charged and, similarly, as regards misdemeanours; but except under statute a conviction for a misdemeanour was not allowed on a charge of felony.' See also: R v Taylor (1869) LR 1 CCR 194; R v O'Brien (1911) 6 Cr App R 108; 22 Cox CC 374; Smith v Desmond [1965] AC 960, at p 970; [1964] 3 All ER 587; R v Nisbett, [1953] VicLawRp 42; [1953] VLR 298; R v Williamson, [1969] VicRp 88; [1969] VR 696.

That is to say, where an accused is indicted for a felony[8] the jury may find him guilty of any lesser felony that is necessarily included in the offence with which he is charged and where an accused is indicted for a misdemeanour the jury may find him guilty of any lesser misdemeanour that is necessarily included in the offence with which he is charged.

Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.[9]

See also Reid v R,[10] Ness v R,[11] R v Cameron,[12] R v Lillis[13] and R v Springfield.[14]

11 Following a report by the Criminal Law Revision Committee (UK) ('CLRC'), the British Parliament enacted the Criminal Law Act 1967 (UK), which not only abolished the distinction between felonies and misdemeanours,[15] but also dealt with a number of other matters including the question of alternative verdicts. Of particular relevance to this case is s 6(3) of that Act, which was in the following terms:

(3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

12 The CLRC's report referred to statutory provisions that permitted alternative verdicts in certain specific cases and discussed the situation where no statutory alternative was provided. The Report said:

1. In connection with our recommendations as regards the general power to give alternative verdicts we considered the existing enactments conferring specific power to do so on charges of certain offences. Those enactments are within our terms of reference because most of them confer power to convict of a misdemeanour on a charge of a felony and date from before the time when it was possible to include counts for felonies and counts for misdemeanours in the same indictment. Some of the specific provisions will be covered by the new general provision in clause 6(3), and the Bill proposes to repeal them in consequence. Others will not be covered by clause 6(3) because they confer power to convict of an offence not included in that charged. We considered each of them separately in order to recommend whether it should be kept or abolished.
2. If the prosecution want it to be open to the jury to convict the accused of an offence other than that charged, they can either include a second count in the indictment or rely on a power to give an alternative verdict if available. Therefore the question whether to keep or abolish existing provisions for alternative verdicts is largely one of convenience, though there is also an objection in principle to a system where, for example, a person charged with rape can be convicted of unlawful sexual intercourse with a girl under 13 or with incest without being specifically charged with those offences in the indictment.
3. In general the case for alternative verdicts is that the prosecution may overlook the need to include a second count in the indictment or the evidence given at the trial may show unexpectedly that the offence committed was different from that charged. The case against (apart from the objection of principle) is that the trial is easier for judge and jury when the possible alternative verdicts can be seen in separate counts in the indictment than when they are latent in it as the result of statutory provisions, and that a conviction may have to be upset on appeal if the court omits to direct the jury that an alternative verdict is open to them.

13 By the Crimes (Classification of Offences) Act 1981, the Victorian Parliament also abolished the distinction between felonies and misdemeanours and adopted s 6(3) of the English Act, in a slightly truncated form, as s 421(2) of the Crimes Act 1958. In his second reading speech on the Bill[16] that became that Act, the Attorney-General, the Honourable Haddon Storey, said that s 421(2):

reproduces the common law rule that a person charged with an offence may be convicted of a lesser offence the ingredients of which are included in the offence with which he is charged.[17]

It is clear that the intention of Parliament was to provide for alternative verdicts in a limited range of situations without altering the existing common law principles upon which such verdicts might be delivered by a jury.

14 Upon the enactment of the Criminal Procedure Act 2009, s 421(2) of the Crimes Act 1958 was repealed and re-enacted in a slightly different form as s 239 of the Criminal Procedure Act 2009 in the following terms:

239 Alternative verdicts on charges other than treason or murder

(1) On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

(2) For the purposes of sub-section (1), an allegation of an offence includes an allegation of an attempt to commit the offence.

15 Sub-section (2) is not relevant for present purposes. It merely confirms that an allegation of an offence includes an allegation of an attempt to commit that offence, so that an attempt to commit the offence charged will always be available as an alternative verdict to the offence charged.

16 The application of s 239(1) requires an examination of the terms of the indictment itself to ascertain whether the words of the charge actually laid amount to, or include, whether expressly or impliedly, an allegation of the offence being considered for inclusion. As a majority in the High Court recently observed, in a slightly different factual context in James v R, s 239 does not confer 'an unqualified statutory right or power to find an accused person guilty of a lesser offence'.[18]

17 As already noted, the indictment in this case pleads an allegation of attempted murder without particulars and without specific reference to the mental element of that offence. This bare allegation of attempted murder neither expressly nor impliedly alleges the elements of attempted defensive homicide: namely, an attempt to kill another person whilst having a genuine but unreasonable belief that it was necessary to do so to defend oneself or another person against death or really serious injury. Proof of all of the elements of attempted defensive homicide is not a necessary step in proof of attempted murder. Indeed, it is not possible to imagine any case of attempted murder where the charge laid could, expressly or impliedly, allege all the elements of attempted defensive homicide. This is because attempted defensive homicide requires the existence of a 's 9AC belief',[19] which necessarily precludes a finding of attempted murder. If the prosecution wished to include attempted defensive homicide as an alternative verdict to attempted murder it should have alleged that offence as a specific alternative charge on the indictment.

18 There was no legal basis for leaving an alternative verdict of attempted defensive homicide in this case for the jury's consideration.

[1] Babic v The Queen [2010] 28 VR 297, 318 [96].

[2] Mark Weinberg, 'The Criminal Law - A Mildly Vituperative Critique' [2011] MelbULawRw 39; (2011) 35 Melbourne University Law Review 1177.

[3] [2007] VSC 234; (2007) 16 VR 637.

[4] Crimes (Homicide) Act 2005, which both defined self-defence with respect to murder and created the offence of defensive homicide.

[5] [2007] VSC 422; (2007) 16 VR 694 (Coghlan J).

[6] [2007] VSC 315 (Teague J).

[7] [1976] VicRp 45; [1976] VR 452.

[8] At the time R v Salisbury was decided, both English and Victorian law still divided indictable offences into felonies and misdemeanours.

[9] R v Salisbury [1976] VicRp 45; [1976] VR 452, 454.

[10] [2010] VSCA 234; (2010) 29 VR 446, 450-1.

[11] [2013] VSCA 84.

[12] [1983] 2 NSWLR 66.

[13] [1972] 2 QB 236.

[14] (1969) 53 Cr App R 608.

[15] Criminal Law Revision Committee, Felonies and Misdemeanours, Report No 7 (1965).

[16] Crimes (Classification of Offences) Bill 1981.

[17] Victoria, Parliamentary Debates, Legislative Council, 28 October 1980, 1652 (Haddon Storey).

[18] [2014] HCA 6, [15].

[19] That is, the belief that one's conduct is necessary to defend oneself or another against death or really serious injury.