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[2007] VSC 420
Supreme Court of Victoria
2007-09-28
COGHLAN, J
Original judgment source is linked above.
Criminal Law - Sections 9AC, 9AD, 9AE and 603 Crimes Act 1958 - date of offence for murder - application of statutory self-defence, defensive homicide and common-law self-defence.
1 I had already ruled on the question of the date of the offence. I did so after hearing only limited argument. I have been asked by Mr Saunders to review the matter. If this offence can be said to have been committed either before 23 November 2005 or at least committed between dates commencing before 23 November 2005, then the common law would apply to it. In the latter case that is because of the transitional provision found in ("the Act").
"For the purposes of this Act (i) if an offence is alleged to have been committed between two dates, one before or one after the commencement of the Crimes (Homicide) Act 2005, the offence is alleged to have been committed before the commencement."
2 The issue is of importance to the accused, in the submission of Mr Saunders, because the law of self-defence will be different if Part 1 Division 1 Sub Division 1AA applies.
3 As I indicated in my earlier ruling and in argument, in my view, since the crime of murder can only be committed if death is caused, the date of death will be the date of the offence. That is the date on which an essential element of the offence occurred and the crime could not have been committed without it.
4 It is the Crown allegation that the accused stabbed the deceased once in the back of the shoulder. The deceased, Mr Brown returned to the accused's home after being ejected an hour or so earlier. The event had been preceded by a day of drinking.
5 It is put by Mr Saunders that the actus reus of the crime of murder occurred on 20 November 2005. It is appropriate, therefore, to say that the crime had been committed between dates. Why otherwise would the transitional provision be necessary? It is true to say that the act or acts which would constitute the actus reus did occur on 20 November 2005. They were not, at that time the actus reus of the crime of murder (or any homicide offence). They only took on that character when Mr Brown died.
6 In relation to the transitional provision there will be some cases where the date of the actus reus and the death will not be known with any precision.
7 One other intriguing feature of this case is that the deceased died in a formal sense when life support apparatus was turned off, that was 25 November 2005. It would be accepted that he was by then "brain dead". It may be that the deceased was in fact legally dead at some time before the 25th. The evidence did not involve that analysis and both counsel seemed content to accept that the date of death would be the 25th. It was in that context that Mr Saunders developed his "between dates" argument.
8 In my involvement in the law it has always been "a given" that the date of murder was the date of death.
9 There is not much authority on the subject. Dr Ian Freckelton, in the 4th Edition of Indictable Offences in Victoria, says at [89.490] p.367: "If the victim is injured on one day and dies on another, the latter is the date of the offence." He makes reference to Archbold (1997) para 19-22. That reference is to the year and a day rule which was abolished in this State in 1991. The Archbold reference in turn mentions R v. Dyson [1908] 2 KB 454. (The paragraph in Archbold has, except for reference to the abolition of the rule, remained the same since at least 1966). That case does not take the matter further.
10 In my view, it follows that the existence of the year and a day rule was an indication that the homicide crimes are committed when death occurs. That is the most logical conclusion. In a case where death occurred at a date significantly after the "actus reus", there is little logic in describing that offence as having been committed between dates when listing two quite distinct events.
11 The other case which throws some light on the matter, at least insofar as practice is concerned, is R v. Evans & Gardiner (No.2) [1976] VicRp 53; [1976] VR 523, 523. That case is the leading case on causation. It concerned a prisoner who was stabbed by the two accused in April 1974. He had apparently recovered after medical treatment. He died in March 1975 as a result of a bowel dysfunction which had flowed from the operation to remedy the original stab wound.
12 In the judgment of the Court (Young C.J., Gillard J. and Anderson J.J.) the following passage appears:
"The applicants, who were presented for trial on a charge of having at Beechworth on 23 March 1975 murdered Wayne Douglas Hamilton ...".
13 Hamilton, who was a prisoner at the time, died at Beechworth Training Prison.
14 For those reasons I am satisfied that the presentment as filed correctly states the date of death. If the question of date of death had arisen in a direct sense, then that is a matter which the jury would have to have decided.
15 That is not the end of the matter. The authors of Bench Notes published by the Judicial College of Victoria make the following observations (see Bench Notes 8.9.2.1)
"13. The accused must have believed that his or her actions were necessary to defend himself or herself or another person from the infliction of death or really serious injury. This also differs from common law self-defence, which does not specify the type of harm that must be threatened before a person can raise self-defence. At common law, even if people defend themselves against less serious harm, or act to protect property or prevent crime, they may successfully raise self-defence if the jury finds they believed upon reasonable grounds that their actions were necessary (Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645; R v McKay [1957] VicRp 79; [1957] VR 560).
15. While a determination that the accused was not defending himself against the infliction of death or really serious injury will preclude reliance on s 9AC, it may still be possible for an accused to rely on common law self-defence in such a situation (see "Common Law Self-Defence and Homicide Cases" below)."
**"**Common Law Self-Defence and Homicide Cases
60. As the Crimes (Homicide) Act 2005 did not in terms abrogate the use of common law self-defence for homicides committed on or after 23 November 2005, it may still be necessary to rely on common law self-defence in relation to such offences.
61. It seems likely that this will only be necessary if a case involves matters on which the statutory defence is more restrictive than the common law defence (and so less advantageous to the accused). For example, if there is evidence that the killing was committed in response to a less serious harm than that defined in ss9AC or 9AE, or in response to lawful conduct.
62. Depending on the circumstances, the judge may need to charge the jury about statutory self-defence, common law self-defence, or both. For example, if the accused claims that when s/he killed the victim, s/he was defending against a threatened sexual assault, and it is unclear whether that harm should be classified as "really serious injury", the judge will need to instruct the jury that:
[2] In R v Pepper [2007] VSC 234 Whelan J considered that the statutory provisions reveal a Parliamentary intention to codify the law of self defence in relation to homicide, and thus determined that the relevant common law has been effectively abrogated. However the legislation is yet to be considered by the Court of Appeal.
17 Later in the Bench Notes under the heading "Common Law Self-Defence and Homicide Cases" the following appears:
"62. The Crimes (Homicide) Act 2005 introduced two statutory self-defence provisions into the Crimes Act 1958 - one for use in relation to murder (s 9AC) and the other for use in relation to manslaughter (s 9AE). See Statutory Self-Defence: Bench Notes for information about these provisions.
63. These defences only apply to homicide offences it is alleged occurred on or after 23 November 2005. It will therefore still be necessary to rely on common law self-defence for homicide offences which took place before that date.
64. As the Crimes (Homicide) Act 2005 did not in terms abrogate the use of common law self-defence for homicides committed on or after 23 November 2005, it may also be necessary to rely on common law self-defence in relation to such offences.[1] However, as the statutory scheme for self-defence is, in most respects, more advantageous to accused people (see Statutory Self-Defence: Bench Notes), this will usually not be required. For most cases occurring on or after that date, reliance on the statutory provisions will be sufficient.
65. However, statutory self-defence is more restrictive than common law self-defence in some respects. For example:
66. It may therefore remain necessary to rely on common law self-defence if there is evidence that the killing was committed in response to a less serious harm than that defined in ss 9AC or 9AE, in response to lawful conduct, or in any other circumstances where the statutory provisions are more restrictive than the common law.
[1] In R v Pepper [2007] VSC 234 Whelan J considered that the statutory provisions reveal a Parliamentary intention to codify the law of self defence in relation to homicide, and thus determined that the relevant common law has been effectively abrogated. However the legislation is yet to be considered by the Court of Appeal.
18 In the recent Geelong case, R v. Carrington, I had to consider the issue in relation to attempted murder. In that case the threat described by the accused was to his life. I did not consider that any injustice could flow from failure to give a Zecevic direction in relation to the charge of attempted murder. There was an alternative charge on the presentment of intentionally causing serious injury.
19 I instructed the jury to proceed on the basis that since attempted murder could only be committed if the accused intended to kill. Unless they were satisfied beyond reasonable doubt that the accused intended to kill the deceased, then they should not consider attempted murder further. In relation to the alternative charge, I gave the usual Zecevic direction. The accused was acquitted of attempted murder and attempted defensive homicide and convicted of intentionally causing serious injury. Because of the manner in which I instructed the jury, it must be that the acquittals relate solely to the question of intent.
20 I have much sympathy with the view expressed by Whelan J. that the new sub-division codifies the law of self-defence and that is the logical conclusion. The circumstance set out in the Bench Notes (supra) referred to in paragraph 17 show the tensions which arise. The difficulty I have is that it is also likely that some accused who might have been acquitted as a result of the relatively simple test stated in Zecevic would be convicted if the new law of self-defence (s.9AC) is applied. If the Crown can prove that an accused did not believe the conduct was "necessary to defend himself or herself from infliction of death or really serious injury" then he or she would be convicted of murder.
21 I do not believe that it was the intention of Parliament or part of the recommendations of the Law Reform Committee that these reforms could or would operate in such a way that some individual was disadvantaged by the new provisions. As I understand the matter, the intention was the preservation of the common law but the extension of self-defence to cover certain pre-emptive responses and to restore the notion of excessive self-defence with the new crime of defensive homicide (s.9AD).
22 In the Second Reading Speech the Attorney General, on 6 October 2005 (Hansard p.1350) said:
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.
This two-stage approach retains the same elements as the common law test but, by separating out those two elements, it will ensure that the law of self-defence appropriately measures the culpability of those who act in the genuine belief that it is necessary to do so to defend themselves or another person ....
23 The first paragraph seems to indicate a fundamental change to the Zecevic test. That change seems at odds with that which appears in the second paragraph. The reference is to the same elements as the common law test.
24 The comment in the second paragraph is consistent with an intent to widen the circumstances for the operation of self-defence rather than to narrow them as well in a very significant way.
25 In the recommendation of the Law Reform Committee (Defence to Homicide: Final Report), the draft section applicable to self-defence for murder and manslaughter (s 322J p.318), no mention was made of response to death or really serious injury, i.e. any return to the strict Viro test.
26 The other important consideration is this. Self-defence is not a right, it is an element of all serious offences against the person. The Crown must prove that the conduct which would constitute the offence was committed without lawful justification or excuse. If an element of the crime of murder is to be altered, then the legislative intention to do so should be made absolutely clear.
27 One of the amendments made to the Act at the time which the new sub-division was inserted was the insertion of s 3B:
The rule of law that provocation reduces the crime of murder to manslaughter is abolished.
28 Although often called a partial defence to murder, the absence of provocation also had to be proved by the Crown.
29 The legislative intent for the abolition of provocation is clear.
30 It is the ordinary rule of statutory interpretation that no right can be removed without clear intent. It must follow that no element of a serious criminal offence can be altered without clear intention of the legislature being shown. That is not the case in these circumstances.
31 If both tests are to be applied, are there any logical inconsistencies? For the purpose of this analysis I will omit reference to the fact that these are matters which must be proved beyond reasonable doubt by the prosecution.
32 The accused gave evidence and the circumstances now before the jury are:
(i) the stab wound to the deceased which caused his death was inflicted by the accused;
(ii) the stabbing was unintentional, i.e. accidental;
(iii) the knife used had been brought to the accused's house by the deceased;
(iv) the deceased did not produce the knife but in a struggle with the accused it fell to the ground and was picked up by the accused;
(v) the deceased was drunk and probably both irrational and belligerent;
(vi) the deceased came at the accused and in the struggle the accused stabbed the deceased in the back of the shoulder;
(vii) the mechanism of the stab wound is unknown but the accused, in his evidence, said that he had inflicted it in a "hugging" type motion;
(viii) the effect of this one stab wound was unusual in that it penetrated 6 centimetres into the deceased's shoulder. The knife missed both his collarbone and shoulder blade. It "nicked" the axillary artery;
(ix) the accused bled profusely and died as a consequence of blood loss which led to multi-organ failure;
(xi) the accused kept out of the way of the police after the stabbing.
33 It will be necessary to instruct the jury that unless they are satisfied that the accused deliberately stabbed the deceased then that is the end of the matter.
34 If they are so satisfied, they would next consider the question of intent. Did the accused intend death or really serious injury? That, of course, even if accident be rejected, is a very live issue as it is in most "one stab wound" cases.
35 If the jury are so satisfied, then the question of self-defence is raised:
(i) Was the accused responding to what he believed to be a threat of death or really serious injury?
(ii) If no, it would be necessary to consider Zecevic test (see (v)).
(iii) If yes, not guilty of murder. Then, was his response based on reasonable grounds? (The situation as he perceived it to be).
(iv) If yes, then not guilty of defensive homicide.
(v) Even if the jury were not satisfied of threat of death or really serious injury, self-defence would operate if the accused believed it was necessary to do what he did to defend himself and did he have reasonable grounds for that belief (Zecevic test).
36 These matters are conceptually difficult. They are not logically inconsistent. If the accused believed that he faced a threat of death or really serious injury, he will be acquitted unless he did not have reasonable grounds when he will be convicted of defensive homicide. If he believed he was under a threat less than threat of death or really serious injury, then if he either did not hold a genuine belief or such belief was not based on reasonable grounds, then he would be convicted of murder.
37 In this context it was recognised in Zecevic that although the words "death or really serious injury" were removed from the new test, which was to be one of general application, nonetheless the questions of both belief and reasonable grounds would, in homicide cases, more often than not involve a threat of death or really serious injury. (See Zecevic v. R [1987] HCA 26; (1987) 162 CLR 645 (Wilson, Dawson, Toohey J.J. at 662).
38 In this case, all these mental gymnastics might be removed by the jury not being satisfied of intention to cause death or really serious injury. I regard that as being a more than likely proposition. It would follow that, the question of self-defence having been raised, the appropriate direction is that contained in s.9AE.
39 In conclusion I will direct the jury that if they are satisfied that the accused did intend death or really serious injury, then the question of self-defence will have to be considered both in its statutory form and as it arises at common law.
40 I have given consideration to whether or not the Zecevic discretion alone would be sufficient. The better view of the accused's evidence, probably, is that he did not respond to a threat to kill or cause really serious injury. He did say that he was in fear of his life. If that assertion was accepted by the jury, then the question of defensive homicide, as well as self-defence, might arise. In the circumstances I have decided that both versions of self-defence will need to be left in favour to the accused.
R
Gould [2007] VSC 420
(1987) 162 CLR 645