R v Carrington [2007] VSC 422

2 The offences were alleged to have been committed at Norlane on 9 March 2006. Lisa Steen was the alleged victim. It was uncontested that the accused shot Ms Steen four times. The defences were twofold, intent and self-defence.

3 At the time these offences occurred Part I Division 1 of the Crimes Act 1958 ("the Act") Subdivision (1AA) ("the Subdivision") Exceptions to Homicide Offences was in force. (That subdivision applying to offences committed after 23 November 2005).

4 In terms that subdivision relates to relevant offences which are defined pursuant to s 9AB -

"(1) ... '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".

5 Mr C. Hillman SC who appeared for the Crown submitted that the words of the section are clear and that therefore there is no reason for the subdivision to be applied to the offence of attempted murder. In Victoria attempted offences are offences in their own right by virtue of s 321M of the Act.

6 If that be so, as it was put by Mr Hillman, attempted murder could not be a "relevant offence" (s 9AB(2)).

7 The consequence of the operation of the subdivision are twofold. First, self-defence for attempted murder would be in accordance with s 9AC of the Act. Second, the possibility of attempted defensive homicide (s 9AD) would arise.

8 If the Subdivision did not apply, then the law of self-defence at common law would be applicable. The possible alternative of attempted defensive homicide would not arise.

9 This matter is the third one in which the question of attempted murder and the applicability of the subdivision has arisen. In the first two cases a ruling was made. In R v. Pepper [2007] VSC 234 Whelan J ruled that the provisions of the subdivision did apply to attempted murder. In that case both the Crown and the Defence had submitted that if s 9AC (Self-Defence) was to be applied then s 9AD (Defensive Homicide) should apply. In those circumstances His Honour ruled that s 9AD would apply although he had not heard any argument about it.

10 The matter was also dealt with by Teague J in DPP v McAllister [2007] VSC 315. Teague J followed and adopted the reasoning of Whelan J in R v Pepper (supra). He also left defensive homicide to the jury. In both of these cases the accused was acquitted of both attempted murder and attempted defensive homicide. Mr Wraith, for the accused, submitted that the Act should not apply and in particular attempted defensive homicide should not be left to the jury.

11 I agree with Whelan and Teague JJ that the provisions of the Act apply to attempted murder. Since the issue of the application of the Act in relation to attempted defensive homicide has been raised I will deal with that matter in some detail.

12 I agree with the reasoning of Whelan J as to the operation of the Act in relation to attempted murder. I have concluded attempted defensive homicide does arise. Although the alternative was left in the other cases, no argument was advanced to the contrary.

13 Pursuant to s 421(1)(d) of the Act one of the alternative verdicts on a charge of murder is "attempted murder".

14 Although the circumstances in which attempted murder will arise as an alternative to murder are rare and unusual (see R v Cengiz Court of Appeal 23 June 1999), attempted murder is still open as an alternative. That is yet another reason why the provisions would apply to attempted murder.

15 Since the decision of the High Court in Zecevic v. R [1987] HCA 26; (1987) 162 CLR 645 ("Zecevic"), an accused is guilty of the crime charged only if the Crown demonstrates beyond reasonable doubt that the accused did what he did, while not having a belief that it was necessary to do what he did in self-defence or that if he did hold that belief it was not based upon reasonable grounds. Reasonable grounds being based upon the situation which the accused believed he faced.

16 Those considerations, although connected, are to be considered separately and the Crown could succeed by showing beyond reasonable doubt that one or other requirement had not been made out. The rule is of general application.

17 Whelan J decided the Subdivision would apply to attempted murder largely because the common law immediately prior to Zecevic was that excessive defence, as it was known, was a partial defence to murder and a complete defence to attempted murder. Section 9AC is an attempt to restore the notion of excessive self-defence.

18 Prior to Zecevic the law of self-defence at common law was as declared by the High Court in Viro v. R [1978] HCA 9; (1978) 141 CLR 88 ("Viro"). A great deal has been written about that decision. It was thought to be a difficult decision to apply and those supposed difficulties led to the restatement of the rule in Zecevic. In Viro the view was taken that an accused who failed in self-defence only because the force which he believed to be necessary exceeded that which was reasonably necessary, then the moral culpability of such a person was such that it merited conviction only for manslaughter (see Viro Stephen J at 139).

19 The test for self-defence set out in Viro consisted of six propositions. Those propositions were distilled into three propositions by Street CJ in R v. McManus (1985) 2 NSWLR 448, 461 ("McManus"). That treatment of the Viro propositions is useful for present purposes because McManus was a case dealing with the crime of wounding with attempt to murder.

20 In McManus the Court of Criminal Appeal in New South Wales followed the Court of Criminal Appeal in Victoria (R v. Bozikis [1981] VicRp 59; [1981] VR 587) in deciding that self-defence would apply to all offences including an intention to kill in the same way as it would to murder. The simple rationale for that proposition was that if the victim had died, then self-defence would have been open.

21 The difference which arose in the non-fatal case was that excessive self-defence would be a complete defence.

22 It is necessary to state the questions set out in McManus to illustrate the difference between those questions and the Subdivision.

Where an accused person is charged with murder or attempted murder, or with an offence involving an intent to murder or to cause grievous bodily harm, a question may arise whether he was acting in self-defence. If that claim is made, or that possibility arises, the Crown must prove beyond reasonable doubt that the accused was not acting in self-defence. In considering whether the Crown has disproved self-defence, the following questions define the approach you must take:

1_. Are you satisfied beyond reasonable doubt that the accused did not reasonably believe that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made on him?_

In answering this question you must consider what the accused himself might reasonably believe in all the circumstances in which he found himself. You do not answer this question by considering what some imaginary reasonable man would have believed - it is the accused's own belief that you must consider.

If the answer to this question is yes, the question of self-defence disappears from the trial.

If the answer to this question is no, then you must consider question 2:

2. Are you satisfied beyond reasonable doubt that the force in fact used by the accused was more than reasonably proportionate to the danger which he believed, or may have believed, that he faced?

(i) The accused's own belief as to the danger, and (ii) then apply to that your own (not the accused's) assessment of whether the force was more than reasonably proportionate to the danger the accused believed, or may have believed, he faced.

If the answer to this question is no, then the Crown has failed to prove its case against the accused and your verdict should be not guilty.

(In cases other than murder, wound with intent to murder or attempted murder): If the answer to this question is yes, the question of self-defence disappears from the trial.

(In cases of murder, wound with intent to murder or attempted murder): If the answer to this question is yes, then you must consider question 3:

3. 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 believed, or may have believed, he faced?

If the answer to this question is yes, then, if the Crown has otherwise proved its case against the accused, your verdict should be guilty of murder, guilty of wounding with intent to murder or guilty of attempted murder, as the case may be.

(In cases in which the charge is murder): If the answer to this question is no, then, if the Crown has otherwise proved its case against the accused, your verdict should be not guilty of murder but guilty of manslaughter.

(In cases in which the charge is wound with intent to murder or attempted murder): If the answer to this question is no, your verdict should be not guilty.

23 One of the reasons why excessive self-defence resulted in a complete acquittal for attempted murder was that there was no, or at least no ready, alternative. The crime of attempted manslaughter does not seem to have been known to the law. (Although see Crimes Act 1958 s 421(1)(d)).

24 I am not sure that the idea of attempted manslaughter is so foreign. If those charged with murder were acquitted as a result of provocation or excessive self-defence and they were convicted of manslaughter, even though they acted with intent to kill, it is only mercy and public policy which leads to manslaughter.

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."

26 That test is entirely subjective. It is equally capable of being answered in relation to attempted murder is it is for murder. The subjective consideration set out is a defence to murder but that is not the end of the matter. The jury have to consider s 9AD which for murder creates the alternative of defensive homicide "if he or she did not have reasonable grounds for the belief ...".

27 Proportionality is one of the matters which will have to be taken into account in assessing reasonable grounds but the test for defensive homicide is broader and easier for a jury both to understand and apply.

28 The necessary intention is an intention to kill or cause really serious injury. If the intention is less than that, the sub-division does not apply.

29 I have a separate difficulty with McManus. In that case the Court went on to convict McManus of the alternative of malicious wounding with intent to cause grievous bodily harm. That conviction followed what must have been a finding by a jury of intent to kill. I accept that what the Court of Criminal Appeal did in that case was a practical resolution. It does reveal a tension which arises in these cases.

30 In this case I will instruct the jury to decide first of all the question of intent. Did the accused intend to kill the deceased? If the answer to that question is yes, self-defence (s 9AC) has to be considered. If self-defence arises then the question of attempted defensive homicide has to be considered (foreshadowing my conclusion in this ruling). If the accused's response was reasonable, then he will be acquitted. That would be the end of the matter.

31 In McManus or R v. Bozikis (supra), the consequence of complete acquittal for attempted murder was, in terms of justice and public policy, unsatisfactory if that meant that the accused would be acquitted entirely.

32 In Victoria the old Viro test has now been replaced by a two part test reflected in ss 9AC and 9AD. In the way those tests operate, the offence of attempted defensive homicide is both a logical and satisfactory progression from attempted murder.

33 If a person is charged with attempted murder and the Crown cannot prove beyond reasonable doubt (i) that the accused did not believe that it was necessary to do what he or she did to defend him or herself from a threat of death or really serious injury and (ii) that the accused did not have reasonable grounds for the belief, the accused would be acquitted, there is no illogicality and no injustice.

34 If the Crown proves proposition (i) the accused will be convicted of attempted murder and if the Crown does not prove (i) but does prove (ii), then the accused would be convicted of attempted defensive homicide.

35 When dealing with the crime of intentionally causing serious injury, self-defence as set out in Zecevic applies. The principles in Viro were related to murder or cases which involved proof of intention to kill.

36 It is not necessary for any self-defence response to be to a threat of death or really serious injury but the Crown must rebut self-defence by proving either absence of belief or unreasonableness.

37 There may be some inconsistency with the proposition that when dealing with intent to kill, lack of reasonable grounds attracts the alternative whereas when dealing with intent to cause serious injury lack of reasonable grounds would lead to conviction for the offence. I am not sure that the possible inconsistency is of any real practical effect.

38 That leaves for consideration the question of whether it is necessary to leave common law self-defence for the charge of attempted murder. In this case the alleged threat faced by the accused is one of death or really serious injury. That is in circumstances that the complainant was said by the accused to have been armed with a loaded sawn-off shotgun. In this case the consideration of common law self-defence would be an unreal complication for the jury and I will not leave it.

39 For the reasons set out above I rule that the provisions of the sub-division apply. It follows that the provisions of s 9AC apply. I further rule that the offence of attempted defensive homicide is open and the provisions of s 9AD apply.