R v Hendy [2008] VSCA 231

R v Hendy [2008] VSCA 231 - VSCA 2008 case summary — Zoe

[17]

1. There are two possible ways for the prosecution to prove the accused was not acting in self-defence, and the first is belief in necessity. The first way in which the prosecution can prove that the accused was not acting in self-defence is to prove beyond reasonable doubt that he did not believe it was necessary to do what he did to defend himself, and I will read that again.

2. The first way in which the prosecution can prove that the accused was not acting in self-defence is to prove beyond reasonable doubt that he did not believe that it was necessary to do what he did to defend himself. This involves assessing the accused's state of mind at the time. What threat did he believe that he faced? Did he believe it was necessary to react to the threat with force, and to react with the level of force used in order to defend himself? Or, was he acting for some other purpose?

3. In making this assessment, you must consider the circumstances as the accused perceived them to be at the time that he committed the acts. It does not matter if you think he was mistaken about the danger he faced or you believe that he overreacted to the threat. The question here is whether the prosecution can prove that he did not believe it was necessary to act in the way he did to defend himself against the danger he faced at the time, and that is the danger that he thought he faced at the time. It is his state of mind which you have to consider.

4. A second way in which the prosecution can prove that the accused was not acting in self-defence is by proving that even if he believed his acts were necessary, that belief was not based on reasonable grounds. This again requires you to consider the circumstances as the accused perceived them at the time he stabbed the victim.

5. You must determine whether the prosecution has proved that it was not reasonable for him to have acted in the way that he did in response to the threat he believed he faced. It does not matter if the accused was mistaken about that threat, so long as his response to the threat, in all the circumstances, as he perceived them to be, was based upon reasonable grounds. If the prosecution fails to prove beyond reasonable doubt either that the accused did not believe it was necessary to act in the way he did to defend himself, or the belief was not based upon reasonable grounds, then you must find him not guilty of the offences.

6. In determining whether the accused acted in self-defence, you must take into account all of the circumstances in which the act occurred. This includes all those matters which form part of the evidence, and I will take you to the evidence in due course. You should also consider the defence's claim that the accused was acting to an imminent threat. In such circumstances, a person cannot be expected to weigh precisely the exact amount of self-defence action which is required. You should not look at the situation with the benefit of hindsight, but instead take into account the fact that calm reflection cannot always be expected in a situation such as this. It is for this reason that there is no requirement that the force used in self-defence be proportionate to the harm threatened. As long as the accused believed on reasonable grounds that his acts were necessary, it does not matter if you believe that they were disproportionate. However, if you consider the accused's actions were out of all proportion to the harm threatened, then that is one of the factors you take into account in determining whether he believed his actions to be necessary in the circumstances. You can also take it into account in deciding whether the accused's belief was based upon reasonable grounds.

7. For example, you would take into account in this case the fact that the victim was very aggressive, he admits he grabbed the accused in a headlock; you will recall the evidence of the mother as to the way the headlock was applied, that is, in a standing position, or bent forward slightly. The victim, on his evidence, was very drunk. The accused was totally sober, if you accept his evidence.

8. In addition, you have heard evidence that the accused had some martial skills and the extent of those skills will be a matter for you to assess. You have seen the build of both men and heard the evidence of the accused's mother, that they were about six feet in height, and you then had the production of the knife. The mother said to you that she saw three blows to the front of the body of the complainant, and we know from the hospital records that not only were there more than three wounds to the front of the body, there was one to the head and four to the back. In this case the prosecution alleged that the accused's acts were plainly disproportionate to the threat he faced, and I will return to that shortly.[1]

[19]

20. In conclusion, if you find that the accused did not believe that it was necessary to do what he did to defend himself, then the Crown has made out its case, so you look at the situation the accused is dealing with. He is dealing with a man who is drunk, who was not armed with any weapon, who has the accused in a headlock. The accused has both arms free and he has martial arts expertise using arms and legs, as admitted by him in his record of interview, and you ask yourself was it necessary to take a knife, using his free hands, and stab his attacker on nine occasions.

21. You must concentrate on the accused man's state of mind - what threat he believed he faced at that time. The headlock was such that he was in real danger of being overwhelmed, and the threats made to break his neck or cause his head injuries, were not only real but were occurring at the time that he acted, and the Crown must prove that positively his state of mind was such that he did not believe it was necessary to do what he did.

22. He told police in the record of interview that he was scared, that he was shitting himself in the situation he found himself in - that he was fighting with a man who had a violent reputation, and although he was not being threatened with an iron bar he was still being threatened in the way in which he was being held. Even if you believe he was mistaken as to the threat he faced or that he [over-reacted], it must be proved that he did not believe it was necessary to act in the way he did, in order to convict him.

23. In order to determine a person's state of mind you have to draw an inference or a conclusion from the facts [as] you find them to exist. When you examine those facts, is the only inference or conclusion open, that he did not believe it was necessary to do what he did to defend himself? You must be satisfied that no other inference or conclusion is open. If you believe there is another conclusion or inference open, then the Crown has not proved its case.

24. As I said to you, if the Crown has proved to your satisfaction, having regard to all the facts you find established, that the only conclusion open is that he did not believe it is necessary to do what he did, then of course you would convict him. That has to be proved beyond reasonable doubt to your satisfaction. If you have a reasonable doubt about that then of course you must acquit him.

25. If you find the Crown has not proved the accused did not believe it was necessary to do what he did, you then move to the second way in which the Crown may prove its case, that is his belief was not based upon reasonable grounds, and you might ask what is the difference between the two? The first is that the Crown has failed to prove that it was not necessary in his mind to do what he did to defend himself. A second, if you so thought it was necessary, then although that was his view it was not based on reasonable grounds, and again we go to the issue of the circumstances that he found himself at the time of the stabbing. The prosecution must prove that it was unreasonable for him to have acted in that way. You must look at all the circumstances as indicated.

26. The Crown say that what was done was disproportionate to the threat and was not reasonable. You must take into account matters which the accused man faced. First of all, the attendance of a drunken man uninvited at the house. (2) The threat made to break his neck or cause injuries to his head. (3) The accused man in his record of interview said he was aware of the violent past of Browning. Further, there is a bad relationship between the two men. Not only does he have this awareness of his violent past. When outside he is then placed in a headlock by Browning.

27. The accused man produces a knife which he has on him and he thrashes about with that knife during this altercation. He says that he does not aim it. He inflicts some nine stab wounds front and back in this scuffle. It is said that the wounds to the back are superficial but it certainly is a serious head wound to the back of the head.

28. In his record of interview the accused says that he stopped thrashing with the knife once Browning let him go, and he says that on a number of occasions, so we are not dealing with a man who has been let go and then does some act to cause injury. The moment Browning lets him go then there is no more stabbing, and that is very clear on the evidence.

29. If you have got a pen there, if you look at passages 277 to 279 of the record of interview you will see this emerge. The passages seem to suggest clearly he just wanted to get Browning off him, and as soon as that took place he ceased using the knife and Browning left.

30. Browning admits he started the incident by grabbing the accused around the neck. He has him in a headlock and at question 74 Hendy states, "He's got me in a headlock, that's when I pulled out the knife and I just wanted to get him off me". As it turned out, apart from brute strength the knife was the only weapon to protect himself, that is the accused man, and he is entitled to use that knife to protect himself, but only if you find that it is both necessary and reasonable.

31. As for the Crown satisfying you that what was done was not necessary to defend himself, and you can also take into account in deciding the accused's belief as to whether it was based upon reasonable grounds.

32. I tell you you do not have to accept all of what he said in the record of interview, and a simple example of, you may think, is the plastic bags as to whether you find that credible. You do not have to accept that, but that does not mean that you cannot as well accept other aspects of the record of interview which were put.

33. Questions you have got to ask yourself: Do you accept the accused man's version that it was both necessary and reasonable to stab Browning that many times? Is there an element of revenge for past events? Did he go beyond the number of stab wounds so that his conduct was not reasonable? These are facts to be determined by you.

34. In the end if you have a reasonable doubt that the accused acted in self-defence by doing what he did as being necessary and reasonable, then you acquit him. The Crown must prove beyond reasonable doubt that he did not act in self-defence, that is, he knew it was necessary or reasonable to do what he did. If you find that proved then of course you convict him. If you have a reasonable doubt about that issue then you must acquit him.

[56]

Once outside, Browning proceeded to attack you. He told you that he was going to break your neck. He proceeded to place you in a headlock and a struggle ensued in front of your mother and son.

This violent, drunken, aggressive man was pursuing that which he stated to you when he arrived at the house. However, you had upon leaving the premises armed yourself with a knife. You had that knife which was in a sheath and you placed it down the front of your trousers. Once the headlock was placed upon you, which was the very threat that was made to you, a struggle took place and what you then did was to produce that knife.

How that occurred is difficult to say. You would have had your hands free and you obtained the knife from your trousers. You unsheathed it and then you proceeded to protect yourself by stabbing Browning.

I have no doubt that your actions were designed to protect yourself, however wheat you did was to inflict nine stab wounds to Browning in the ensuing struggle.

In your record of interview to police you stated that you used the knife in a random fashion. That is you used it without any specific aim, and you were only seeking to protect yourself, and that was your defence at the trial, and the jury have rejected the proposition that you acted in self-defence.

You stabbed him repeatedly until he let go of you, given his injuries. I accept that you immediately ceased using the knife, once free. You were entitled to protect yourself, given the circumstances. However, I interpret the jury's verdict of this being a situation where you went beyond what was necessary, and you acted in such a way that was disproportionate to the threat you faced.

The fact that you armed yourself with a weapon before going outside, and that you concealed that weapon and used it in a random fashion to stab Browning repeatedly was, in my view, the reason why you were convicted of recklessly causing serious injury.

The stab wounds were multiple and some of them were life threatening. In particular there was a stab wound to the neck from which blood poured and this was serious.

You were a person who had self taught yourself some martial arts, and I also interpret the verdict as indicating the jury though that having armed yourself with a knife, that having been involved in a struggle you decided to use the knife and did so at a time when during the struggle you, at least, had both hands free, but elected to use the knife.

The stab wounds were to the front of Browning's body as well as four stab wounds of a superficial nature to his back.

The use of a weapon such as a knife, the infliction of multiple stab wounds, albeit with the intention of defending yourself was of such a nature that you went well beyond that which was proportionate to the risk you face.

I have given very careful thought to the issue of what is an appropriate sentencing disposition. My initial approach was to impose upon you a fully suspended term of imprisonment, however I have come to the view that a disposition of such a nature is not appropriate.

I have formed that view based upon my own assessment of the nature of the assault. It is also a view that the Court of Appeal has taken in a similar case to which I was referred. See the Crown v Coley. Aspects of general and specific deterrence are important in cases of this nature, particularly when weapons are used.

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