Prosecution v Defence

1 By a presentment filed 30 January 2007 Michael Wallace Pepper was charged with an offence of attempted murder alleged to have occurred on 22 February 2006 and with a charge of causing serious injury intentionally. He pleaded not guilty to these offences and the trial began on Monday 18 June 2007. On Thursday 28 June 2007 the jury returned a verdict of not guilty on all counts.

2 Prior to the trial commencing a number of issues had been canvassed with counsel. One of the issues canvassed was the impact upon the charge of attempted murder of the Crimes (Homicide) Act 2005 ("the new Act") which came into operation on 23 November 2005 and was accordingly in operation at the time of the alleged attempted murder.

3 When the issue was first raised counsel for both the prosecution and the defence submitted that the new Act had no relevant operation in relation to the charge of attempted murder. I expressed misgivings in relation to this position. As a consequence, counsel for the defence applied pursuant to s.446(2) of the Crimes Act 1958 ("the Act") that a question of law be reserved for consideration and determination by the Court of Appeal. The matter was adjourned whilst the Crown considered that application, the indication being at that stage that the Crown would support the application and prepare a draft case stated.

4 On Monday 18 June 2007 counsel for the accused sought leave to withdraw the s.446(2) application. He indicated that upon further consideration the application was inappropriate for two reasons. First, the facts stated would necessarily be hypothetical. Secondly, the point of law could not be said to be one whose determination could render the conduct of the trial unnecessary.

5 Both counsel then requested that I defer ruling on the issue of the effect of the new Act. They submitted that the deferral would not alter the manner in which the trial was conducted. I subsequently heard argument on the issue when time was available during the trial and on 25 June 2007 I ruled that I would charge the jury on the basis that the new Act applied and indicated that I would give my reasons later. These are those reasons.

Relevant provisions of the Crimes Act 1958

6 Section 321M of the Act creates an indictable offence where a person "attempts to commit an indictable offence". Section 321N provides, amongst other things, that for a person to be guilty of attempting to commit an offence the person must "intend that the offence the subject of the attempt be committed" and "intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time the offence is to take place."

7 In the context of attempted murder the requirement that the accused must intend that the offence be committed creates a position where attempted murder cannot be found unless there is an intention to kill in circumstances in which if the killing takes place it will be murder.[1] The penalties for attempting to commit an offence are set out in s.321P. I will return to that.

8 Pursuant to s.421(2) of the Act, on a person's trial for an offence other than treason or murder where the jury find him not guilty of the offence specifically charged but the allegations include an allegation of another offence the jury may find him guilty of that other offence. Under sub-s.(4), the judge has the power to order that the guilt of the other offence shall not be determined at the trial.

9 The offence of causing serious injury intentionally is dealt with in s.16 of the Act and the penalty provided for is level 3 imprisonment. The offence of causing injury intentionally is dealt with in s.18. The penalty for intentionally causing injury is level 5 imprisonment.

Potential effect of the new Act and review of prior position

10 The new Act makes a number of alterations to the law concerning homicides. For present purposes the significant alteration concerns self-defence. Before considering the provisions of the new Act in this context it is necessary to briefly review the position in relation to self-defence and homicide prior to 23 November 2005 when the new Act came into operation.

11 In Viro v R,[2] the High Court held that where the issue of self-defence arises on a charge of murder the jury should be directed to undertake a six-step process. Whilst the directions, which were set out by Mason J, involve six steps,[3] those steps require three issues to be addressed. They are:

1. When the accused killed the deceased did he or she reasonably believed an unlawful attack which threatened him with death or serious bodily injury was being made or was about to be made on him or her? The issue here is what the accused would reasonably have believed, not what a reasonable person might believed. If the Crown proved the answer "no" beyond reasonable doubt, then no further issue of self-defence would arise. If it did not, it was necessary to then address the second issue.
2. Was the force in fact used by the accused reasonably proportionate to the danger which the accused believed he or she faced? If the Crown proved the answer "no" beyond reasonable doubt, the offence was either murder or manslaughter depending upon what the Crown could establish in relation to the third issue. If the Crown did not, then the accused was acquitted.
3. Notwithstanding the use of force which was not reasonably proportionate to the danger in fact, did the accused believe the force he or she used was reasonably proportionate to the danger the accused believed he or she faced? If the Crown proved the answer "no" beyond reasonable doubt, the verdict was murder. If it did not, the verdict was manslaughter. This last issue was sometimes referred to by reference to the expressions "excessive self-defence" or "excessive force".

12 In R v Bozikis,[4] the Full Court of the Supreme Court considered an appeal from a trial where an accused had been charged under an offence (then provided for by s.11(1) of the Act) of wounding with intent to commit murder. The trial judge had withdrawn self-defence from the jury because he found the jury could not reasonably entertain any doubt that the force used exceeded what was reasonably necessary. Thus, the issue was withdrawn because the Crown case negatived the second issue set out above. The issue for the Full Court was whether the Crown ought to have also been required to negative the third.

13 The Full Court decided the matter as an issue of statutory construction. Young CJ held:

"It is the proper construction of the words 'with intent to commit murder' which produces the result that a person cannot be convicted of the offence if his plea of self-defence only fails because he used excessive force."[5]

14 Anderson J observed that the Crown's failure to negative belief as to the force being reasonably proportionate (the third Viro issue as I have summarised them) must result in acquittal because "there is no such offence as wounding with intent to commit manslaughter".[6]

15 Jenkinson J reviewed the matter in more detail by reference to principle, but also decided the appeal as an issue of construction of the statute. He held that a person who held the belief which would result in a manslaughter conviction if death had occurred did not have the intent to commit murder required under the then s.11(1).[7]

16 In Bozikis, Jenkinson J accepted, without it being necessary to decide the issue, that his reasoning may be inconsistent with authorities which had held that provocation was not applicable to crimes other than murder, save in relation to sentence.[8]

17 In R v McManus,[9] the Court of Criminal Appeal in New South Wales also considered the self-defence issue in the context of a charge of wounding with intent to murder. Street CJ, with whom Priestley JA and Lusher J agreed, adopted what had been said in Bozikis,[10] and also said that the same approach applied to charges of attempted murder.[11] Street CJ articulated questions which might be considered by a jury (which he felt might be more readily intelligible to a jury than the Viro six steps), and said that these questions would apply where the charge was attempted murder[12]. Under this formulation, having found that the force used was not proportionate in fact, the question the jury should address was as follows:

"Are you satisfied beyond reasonable doubt that the accused did not believe that the force which he used was reasonably proportionate to the danger which he faced, or may have believed, he faced?"

18 If the answer to this question was no, then, according to the New South Wales Court of Criminal Appeal, where the charge was murder the verdict should be not guilty of murder but guilty of manslaughter, but where the charge was wounding with intent to murder or attempted murder the verdict should simply be not guilty.

19 In Train v R,[13] the Court of Criminal Appeal in Victoria, affirmed Bozikis and referred to McManus without disapproval, but said that the analysis referrable to excessive self-defence only applied to murder, attempted murder, and committing an act with intent to commit murder. The accused in that case had not been charged with any of those offences.

20 The High Court then altered the law of self-defence. In Zecevic v R,[14] Wilson, Dawson and Toohey JJ (with whom Mason CJ agreed, and with whom Gaudron and Brennan JJ agreed with qualifications) said the sole issue in all cases of self-defence was the simple question:

" ... whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did."[15]

21 This formulation was said to be of general application and not limited to homicide. Under this formulation the defence would either succeed or fail. There would be no manslaughter outcome on a murder charge on the ground of self-defence.

22 The new approach involved a departure from the position as it had been set out in Viro. Two differences which were specifically referred to by Wilson, Dawson and Toohey JJ[16] were the question of whether self-defence could be a response to a lawful attack, and the issue of excessive self-defence. As the test was of general application, the new approach also altered the Viro formulation by removing the reference to the threat in response to which the accused acted as being one which involved the threat of death or serious bodily injury.

23 Hampel J reviewed some of the history of the matter in R v Farrar.[17] The accused had been charged with attempted murder and the issue was whether provocation could be raised. Hampel J referred to Bozikis. He said that that case had been decided as a matter of statutory construction, but he also said Bozikis suggested that excessive self-defence would be available as a defence to attempted murder, as well as to wounding with intent to murder. In this respect, Hampel J's analysis of Bozikis reflected that in McManus. Hampel J rejected the suggestion that provocation could be relied upon as a defence to attempted murder holding that provocation was a concept explicable by historical circumstances referrable only to homicide. He said that provocation as a legal concept was quite different to self-defence.

24 The issue of the relevance of provocation where the charge is attempted murder was settled by the High Court in McGhee v R.[18] Although this was a decision under the Criminal Code (Tas), the analysis, particularly that of Dawson J, reflected the approach Hampel J had taken in Farrar.

The Law Reform Commission and the Crime (Homicide) Act 2005

25 On 21 September 2001 the Attorney-General gave the Victorian Law Reform Commission a reference to examine the law of homicide and to consider whether it would be appropriate to reform, amongst other things, self-defence. The Victorian Law Reform Commission's final report entitled "Defences to Homicide" recommended that the law of self-defence and other defences to homicides should be codified in Victoria and included in a new part of the Act.[19] One of the issues addressed was excessive self-defence as a partial excuse. The Commission recommended the re-introduction of excessive self-defence. The view it expressed was that a person who acts honestly, albeit unreasonably, to protect himself, herself or another person by using a level of force that is grossly excessive or otherwise unreasonable, should not be convicted of murder, but that such a person is not entirely free of moral blame and is deserving of some form of punishment.[20] It recommended that a person who believed their conduct to be necessary but acted in a way that was not a reasonable response to the circumstances as the person perceived them should be found not guilty of murder but guilty of manslaughter.[21] The Draft Bill annexed to the Commission's Final Report included a proposed s 322J of the Act reflecting this recommendation.

26 The government's response to the Victorian Law Reform Commission Report was the Crimes (Homicide) Bill which had its second reading on 6 October 2005. The Bill did not replicate the draft annexed to the Victorian Law Reform Commission's final report. In relation to excessive self-defence the bill introduced a new offence named "defensive homicide". The Attorney-General in the Second Reading Speech said the following:[22]

"This bill will change the way self-defence operates in relation to murder. For manslaughter the bill will state the common law test, without making any changes to that test.

The first thing to note about the new test for self-defence in relation to murder is that it applies only if the accused person believed that it was necessary to do what he or she did to defend himself, herself or another from the infliction of death or really serious injury.

The second thing to note is that, in relation to murder, this bill will separate the 'belief' and 'reasonable grounds' components of the common law test into two separate tests.

Under the first test, the jury would have to consider whether the accused person had the relevant belief. If the prosecution can prove that the accused did not have that belief, the accused will be guilty of murder. If the prosecution cannot prove that, he or she will not be guilty of murder.

However, in such a case, a finding that the accused was not guilty of murder would not be the end of the matter because, under this bill, the second test then arises. The second test is whether the person had reasonable grounds for his or her belief. This test determines whether the accused person is guilty of the new offence of defensive homicide or is completely acquitted."

27 The Attorney-General said that the division of the test into this two stage process was "consistent with" the recommendations of the commission and with the law in other States and was "similar in some ways" to the common law rule that existed prior to Zecevic. The Attorney-General went on to say[23]:

"The offence of 'defensive homicide' will operate as a substantive offence in its own right as well as a lesser alternative offence in cases where a person is on trial for murder."

28 The bill, which relevantly became the new Act was, in this respect, consistent with the recommendations of the Victorian Law Reform Commission but it differed from the draft which the Victorian Law Reform Commission had proposed.

29 The new Act contains the following relevant provisions.

30 Section 1 sets out the purposes. Amongst other things, the purposes are to amend the Act so as to remove provocation as a partial defence to murder, to create a new offence of defensive homicide, and to provide expressly for self-defence in relation to homicide offences.

31 Section 3 of the new Act introduces a new s.3B to the Act whereby the rule of law concerning provocation is abolished.

32 Section 4 of the new Act introduces a new s.4 to the Act. Subsection (1) of that new section is as follows:

"If on the trial of a person for murder the jury are not satisfied that he or she is guilty of murder but are satisfied that he or she is guilty of an offence against section 9AD (defensive homicide), the jury may acquit the accused of murder and find him or her guilty of defensive homicide and he or she is liable to punishment accordingly."

33 Section 6 of the new Act introduces a new subdivision to the Act being Subdivision (1AA) of Division 1 of Part 1. The new subdivision contains the following provisions:

"9AB. Definitions and application of Subdivision

'intoxication' means intoxication because of the influence of alcohol, a drug or any other substance;

'relevant offence' means murder, manslaughter or defensive homicide.

(2) Without taking away from the law relating to any other offences and except as otherwise expressly provided by this Subdivision, this Subdivision applies only to relevant offences.

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.

Note 1: See section 4 for alternative verdict of defensive homicide where the accused had no reasonable grounds for the belief.

Note 2: This section does not apply where the response is to lawful conduct - see section 9AF.

Note 3: See section 9AH as to belief in circumstances where family violence is alleged.

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.

Note: See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.

A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary -

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

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person -

and he or she had reasonable grounds for that belief.

Note 1: See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.

Note 2: This section does not apply where the response is to lawful conduct - see section 9AF."

34 Three issues were raised in this proceeding concerning the effect of the new Act.

35 First, an issue was raised as to whether self-defence as provided for under the new Act is applicable where the charge is attempted murder. Counsel for both the Crown and the defence submitted that the new Act did not apply and that where the charge is attempted murder the common law in accordance with Zecevic continues to apply.

36 Second, if the new Act did apply, did the common law of self-defence continue to apply as well, so that the Crown would have to negate self-defence both in accordance with the common law and in accordance with the new Act.

37 Third, if the new Act did apply, could or should an alternative verdict of attempted defensive homicide be left to the jury pursuant to s.421(2)? If such an alternative was open, could or should an order be made under s.421(4) that the guilt of the person in respect of that offence not be determined?

38 As indicated, counsel for both the Crown and the defence submitted that the new Act did not apply. Counsel for both the Crown and the defence also submitted that if the new Act did apply then the entire regime of the new Act must apply, and the alternative verdict of attempted defensive homicide must be left to the jury.

(a) The new s.4 of the Act introduced by s.4 of the new Act provides for an alternative verdict of defensive homicide in relation to murder only.

(b) The Parliament's intention to confine the operation of the new Act is made explicit in s.9AB(2), and attempted murder is not a "relevant offence".

(c) It is clear from the second reading speech that Parliament intended the amendments to apply only to offences involving homicide.

(d) If the Act applies an alternative verdict of "attempted defensive homicide" must be left and this results these anomalous consequences:

(i) Where an accused is also charged with intentionally causing serious injury (as was the case here) the trial judge would be required to give directions on self-defence under the new Act in relation to attempted murder and attempted defensive homicide, and under the common law in relation to intentionally causing serious injury.

(ii) The alternative of "attempted defensive homicide" would, pursuant to s.9AD and s.321P of the Act, have a maximum penalty level 4 imprisonment, which is less than the maximum penalty for intentionally causing serious injury, and yet, given the structure of the offences as introduced by the new Act, the jury would have to consider the offence of attempted defensive homicide before considering a charge of intentionally causing serious injury.

40 The defence submission was that s.9AD only arises once what was described as the "gateway" provision of s.9AC has operated. Thus, it was submitted, the issue of reasonable grounds and defensive homicide only ever arises where there has been a murder charge and s.9AC has operated. The submission was that in those circumstances s.9AD could never have application where the charge is anything other than murder, including attempted murder. Defence counsel submitted that each of s.9AC and 9AD are only concerned with circumstances where a person is killed. The defence also submitted that s.9AB(2) makes it clear that the subdivision does not apply to a charge of attempted murder which is an entirely separate offence to those defined as a "relevant offence".

41 As to the first issue, I was unable to accept the submissions put on behalf of both the Crown and the defence in this respect. I could not accept them because of the effect of s.321M and s.321N. A person cannot be guilty of the crime of attempted murder unless the person is attempting to commit murder. What is murder for these purposes? In a case where the issue is appropriately raised, one of the essential elements of the crime of murder is that the person was not acting in self-defence. When the issue is appropriately raised, the Crown bears the burden of proving that the accused was not acting in self-defence beyond reasonable doubt, as it bears the burden of proving every other element of the crime. Thus, a person cannot be guilty of attempted murder if the circumstances are such that he or she would not have been guilty of murder had death resulted. The new Act altered the elements of murder as from 23 November 2005 and, accordingly, it necessarily also altered the elements of attempted murder. Thus, my conclusion was that self-defence in accordance with the new Act must apply to a charge of attempted murder when the crime is alleged to have been committed after 23 November 2005.

42 I appreciate that this reasoning might be thought to be not consistent with the approach adopted in relation to provocation in Farrar and in McGhee. However, Hampel J recognised in Farrar that the considerations relevant to provocation differed from those relevant to self-defence and as Dawson J explained in McGhee provocation is (now was) "an anomaly which finds its explanation in history".[24]

43 I also appreciate that the circumstances that the prosecutor referred to as being anomalous will arise, namely that it will be necessary to give different directions in relation to self-defence in the context of a single trial where an accused is charged with attempted murder and with intentionally causing serious injury. In that situation the position will also be that the jury will have to consider the less serious charge, attempted defensive homicide, before the more serious intentionally causing serious injury. These so called anomalies can be accommodated in my view. They cannot be avoided given the provisions of s.321M and 321N.

44 Whilst neither counsel submitted it to be the case before me, the possibility has been suggested that both common law self-defence and self-defence as introduced by the new Act continue to apply.[25] I did not have any submissions on the issue. I determined not to proceed in that way. Whilst it is true that the new Act did not expressly abolish the common law of self-defence in relation to murder, in the way in which it did the rule of law relating to provocation, it nevertheless seems to me to be clear that it was Parliament's intention to codify the law of self-defence in relation to homicide and that Parliament did implement that intention in the new Act. A different conclusion would require consideration of whether a charge to the jury with two sets of directions on self-defence in relation to the one charge could be understood and acted upon. In relation to the charge of attempted murder, and the alternative of attempted defensive homicide, I did not charge the jury on the basis that the accused might be acquitted by applying the common law of self-defence as set out in Zecevic.

45 The final issue raised was whether the alternative of attempted defensive homicide ought to be left to the jury. Prior to Zecevic, where an accused on a charge of attempted murder, or wounding with intent to murder, held the requisite belief concerning the threat, but the force used was disproportionate, and the accused was proved not to have believed that the force used was reasonably proportionate, the accused was acquitted. When the charge was wounding with the intent to commit murder that may have been simply because there was no such offence as wounding with intent to commit manslaughter. McManus and Bozikis suggest that prior to Zecevic on a charge of attempted murder there was no room for a finding of guilt of any lesser charge as a consequence of excessive self-defence.

46 The position under the new Act is different to that which existed before Zecevic in that the new Act does create the distinct and separate offence of defensive homicide. Whilst it is true that the new Act in many respects creates a position somewhat similar to that which pertained under Viro, it does seem to me that this is one significant difference. As the Attorney-General indicated in the Second Reading Speech, the new offence of defensive homicide is a substantive offence in its own right as well as a lesser alternative offence to murder.

47 Both counsel before me submitted that if the new Act applied the alternative of attempted defensive homicide must be left. Accordingly, I did not have the advantage of hearing argument on the issue. Without hearing argument, I concluded that the alternative of attempted defensive homicide can and should be left.

48 In the circumstances I charged the jury on self-defence on the basis that:

(a) The new Act does apply to the charge of attempted murder.

(b) The new Act constitutes a code and the common law does not continue to apply in circumstances where the new Act does apply.

(c) Where the charge is attempted murder and the issue of self-defence arises, the alternative verdict of attempted defensive homicide can be left to the jury. In this case I determined that it should be so left.

[1] Authorities cited in R v Bozikis [1981] VicRp 59; [1981] VR 587, at 588 and 591-592.

[2] [1978] HCA 9; (1978) 141 CLR 88 ("Viro").

[3] [1978] HCA 9; (1978) 141 CLR 88, 146-7.

[4] [1981] VicRp 59; [1981] VR 587 ("Bozikis").

[5] [1981] VicRp 59; [1981] VR 587, 589.

[6] [1981] VicRp 59; [1981] VR 587, 590.

[7] [1981] VicRp 59; [1981] VR 587, 594.

[8] [1981] VicRp 59; [1981] VR 587, 595.

[9] (1985) 2 NSWLR 448 ("McManus").

[10] (1985) 2 NSWLR 448, 456-7.

[11] (1985) 2 NSWLR 448, 463.

[12] (1985) 2 NSWLR 448, 461-2.

[13] (1985) 18 A Crim R 353 ("Train").

[14] [1987] HCA 26; (1987) 162 CLR 645.

[15] [1987] HCA 26; (1987) 162 CLR 645, 661.

[16] [1987] HCA 26; (1987) 162 CLR 645, 663-4.

[17] [1992] VicRp 12; [1992] 1 VR 207 ("Farrar").

[18] [1995] HCA 69; (1995) 183 CLR 82 ("McGhee").

[19] Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) [Recommendation 2].

[20] Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) [3.103].

[21] Victorian Law Reform Commission, Defences to Homicide, Final Report (2004) [Recommendations 9-10].

[22] Second Reading Speech, Crimes (Homicide) Bill 2005, Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005 1349, 1350 (Rob Hulls, Attorney-General).

[24] [1995] HCA 69; (1995) 183 CLR 82, 97.

[25] Such a possibility is suggested by the current Victorian Criminal Charge Book.