R v Kell & Dey

3 This ruling is being given at a point shortly before the commencement of counsel's final addresses to the jury. In summary, the issue I must determine is whether the defence of self-defence should be left for the jury's consideration. Mr Rose SC for the Crown submits that I should not leave self-defence since both accused deny they stabbed the deceased, blame the other for having done so, and give no evidence in any form to support a belief in the necessity of such action, bearing in mind that the Crown must prove the absence of such belief beyond reasonable doubt.

4 Mr Danos for the accused man Simon Kell submits straightforwardly that self-defence should be left to the jury, and that as the law currently stands I have little or no choice but to leave it.

5 Mr Stuart for the accused man Robin Dey submits that only common law self-defence should be left and that statutory self-defence should not be left and the alternative offence of defensive homicide which arises from statutory self-defence should not be put to the jury. Mr Stuart's submission is based, as he acknowledged in the course of submissions, on what are, I would accept, good and tactical considerations.

6 On the night of 26 June 2007, the evidence indicates that Tyrone Shepherd, the estranged partner of Sarah Kell, had gone to Sarah Kell's house uninvited and late at night. He had done the same thing in the early hours of that morning and Sarah Kell had asked him to go and he had done so. The relationship between Tyrone Shepherd and Sarah Kell had ended some three weeks earlier and there was a pre-existing intervention order against him from the Ringwood Magistrates' Court.

7 At all events, Mr Shepherd returned that night and knocked on her window as I have described. At the time Sarah Kell was on the phone to her brother. In evidence she said she told her brother, "Look, I've got to go, Tyrone has knocked on my window." In response she said her brother said "Okay, we're coming around." The evidence indicates that both men knew that Sarah Kell claimed to have been the victim of earlier violence by Mr Shepherd against her during their relationship. That included a stabbing to the face leaving a scar and the physical violence to her body as well as damage to her car. Both accused also claimed to be aware that Mr Shepherd habitually carried a knife.

8 A short time after the phone call between Simon Kell and his sister, the two accused arrived at Sarah Kell's premises. Mr Shepherd was still there, having declined Sarah Kell's requests to leave. He was not armed and it is not claimed that he had either been violent or had threatened violence. When they entered the premises the accused were armed with a baseball bat and a knife. The knife belonged to the accused man Mr Dey. He claims that Mr Kell had the knife and had taken it from Mr Dey's room at the premises where they had been when they departed for Sarah Kell's house. Mr Kell, in his record of interview, denies any knowledge of the knife being taken to his sister's house although he agrees he had the baseball bat. Of course, it is the knife that caused the wounds which ended the life of Mr Shepherd.

9 The accused men climbed over the gate to gain access to the rear area of Sarah Kell's house where they, or at least Mr Dey said he, could hear an argument. Neighbours had also heard the argument and witnessed aspects of what then occurred.

10 Sarah Kell's evidence was that when the two accused came over the gate she saw her brother Simon Kell had a baseball bat. Ms Kell gave evidence that she then said "No, no blood is going to be shed here tonight."

11 There was then a discussion between Simon Kell and Tyrone Shepherd. In that conversation or argument Simon Kell accused Mr Shepherd of having used a knife on his sister, which Mr Shepherd denied, and observed that Mr Kell was being a good brother in "sticking up" for his sister. Then, "out of the blue", Sarah Kell described her brother "whack[ing]" Mr Shepherd with the bat to the upper body. She said she was trying to stop it, and I would have to observe at this stage she was not claiming to have felt that she was at any risk from Mr Shepherd either then or earlier. She then described a scuffle involving Mr Kell, Mr Shepherd and herself which finished near the gates. Mr Dey had attempted to intervene and remove her from the struggle but she said she remained involved. She said there is then a blank in her memory because the next thing she remembers is Mr Shepherd on the ground either sitting or half lying down and saying, "Stop" in a very faint voice. She said she then saw the accused man Mr Dey coming in and jabbing into Mr Shepherd with the knife and then stepping back and then going forth and jabbing in again a couple of times. She thought this may have happened three times. She said she saw her brother hit Mr Shepherd with the bat a couple of times and then remembers Mr Dey saying "He's had enough". There was then some pause at that point from everybody. Mr Dey then said to her, according to her evidence: "Come on, Sarah, come with us. The cops are going to be here any minute. It's the best thing to do". I note that Mr Dey admits that he told Sarah Kell to come with them, but does not agree that the balance of that utterance was something that he said.

12 Sarah Kell did not say anything but saw the two accused leave down the driveway and shortly after that she rang an ambulance for assistance. A recording of that phone call is in evidence before the jury.

13 Another eyewitness who was looking from the front of the property claims that she saw a man matching the description of Mr Dey in the driveway of the house. She said that she then saw a man. She there were some people lying on the ground and she saw two legs which she described as being in the air. She said she then saw the man who the Crown says was Mr Dey go back to the place where the man was lying on the ground and then start hitting the man on the ground while bending over him. She demonstrated a downward punching motion.

14 This evidence is a brief summary of the Crown case against the accused Mr Dey. On the way this case is put Mr Dey has stabbed Mr Shepherd at the end of the incident and at a time when, on the evidence of Sarah Kell, Mr Shepherd may have been to some extent subdued, although she does not describe how that happened.

15 The alternative version is that given by Mr Dey in his sworn evidence. In brief summary he agrees that he went to the premises of Sarah Kell with his friend Simon Kell. He had been in an intimate relationship with Sarah Kell for a several weeks. On that night before going there, he, Mr Kell and others who have given evidence in the trial were at his home drinking bourbon and cola and using drugs, in particular amphetamine. After the phone call between Simon Kell and his sister, Mr Dey said that he and Mr Kell left his premises and went to Sarah Kell's house. He took a baseball bat, he said for protection, and Mr Kell told him in the hallway of his premises that he was taking Mr Dey's hunting knife.

16 On arrival Mr Dey's agrees that they climbed over the gate - Simon Kell first, then he followed - and confronted Mr Shepherd, by which time Simon Kell had both the baseball bat and the knife. Simon Kell was displaying the baseball bat. He said that after an argument between Mr Kell and Mr Shepherd, Mr Kell hit Mr Shepherd in the head with the baseball bat although it had little effect. There was then a struggle between them with Mr Shepherd getting the better of Mr Kell due to his superior size and strength. Mr Dey said that Mr Shepherd's demeanour in the lead up to this incident was "extremely aggressive". The struggle moved down the driveway to the gate. Mr Dey said that he intervened to remove the baseball bat from Mr Shepherd, who now had some level of control of it, and was pressing it against Mr Kell's neck. The bat fell free and Mr Dey picked it up. Having done that he struck Mr Shepherd as hard as he could with the bat between four and six times. Mr Shepherd was on his back on the ground and Mr Dey then moved toward Sarah Kell and asked her to come with them. He said she was screaming and saying "stop it" and he then turned around and saw Simon Kell crouched over Mr Shepherd with the knife. He said he saw Simon Kell slash Mr Shepherd to the right side of his head with the knife. He did not claim to see any other stabbing of Mr Shepherd, though he accepted that there must have been given the nature of the injuries that Mr Shepherd sustained.

17 The Crown relies on Sarah Kell's version of events and would put to the jury that this account by Mr Dey should be rejected.

18 On the evidence the following factual matters raise a significant issue as to whether self-defence should be left to the jury:

(a) Both accused deny inflicting the fatal stab wounds, rather than contend that they did stab Mr Shepherd in the belief that such conduct was necessary to defend themselves or Sarah Kell from the infliction of death or really serious injury (see s 9AC of the Crimes Act 1958).

(b) On the evidence before the jury the deceased was unarmed but was behaving aggressively and had expressed his willingness to engage in a confrontation with the accused when they arrived and behaved accordingly.

(c) On the other hand, there was history of violence between the deceased and Sarah Kell which both accused were aware of. Both accused qualify as family members under s 9AH of the Crimes Act 1958 and therefore their knowledge of that history may be relevant to be taken into account on the question of whether the conduct of the accused was believed to be necessary and whether the accused had reasonable grounds for that belief.

(d) The two accused went to the premises armed with a knife and baseball bat. The accused Mr Kell denies knowledge of the knife; the accused Mr Dey admits knowledge of both weapons.

(e) On both versions of the events, particularly the version given by Mr Dey, the fatal wounds were inflicted after the confrontation between Mr Kell and Mr Shepherd, during which Mr Shepherd had got the better of the struggle and had pressed the bat into Mr Kell's throat.

(f) However, neither accused suffered any wounds apart from some possible scratching to the hand of the accused man Mr Kell.

(g) On the evidence of the pathologist the fatal wound was an incised wound to the right lung. It started on the outside of that lung, and it went through to the other side of the lung. That wound was applied to the upper right back of the deceased. Mr Shepherd also had other less life-threatening wounds to his back. In relation to the degree of force that was used to inflict that injury, the pathologist said she had a scale and she thought given that there are incised wounds that involve the ribs it should be considered at least moderate.

(h) Neither of the accused explains the major wound to the left leg or claims to have seen the other inflicting it. The pathologist described two wounds to that leg; one being an incised wound, that with the edges brought together measures 31 millimetres. The major injury was approximately 180 millimetres in length and approximately 85 millimetres in depth. It has exposed the bellies of the muscles of the calf and the bone of the tibia, which is part of the front of the left lower leg. That was exposed at the back. The neurovascular bundle which comprises nerves and veins and arteries and runs next to the tibia had been severed.

(i) Immediately after the infliction of the stab wounds, by whoever inflicted them, the accused left the premises, concealed the weapons which had been taken to the premises, and later made efforts to clean and conceal their clothing.

19 On this trial, I will direct the jury that they should consider whether they are able to be satisfied beyond reasonable doubt as to which of the accused applied the fatal wounds with the knife. If they can, then the question is whether self-defence should be left in respect of that accused given the evidence. I have concluded that it should be.

20 Further, to the extent that they can resolve the issue of who stabbed Mr Shepherd, the question also arises as to the liability of the accused they find did not stab Mr Shepherd. He may be equally guilty if he acted in concert with the accused who did, but in considering whether he aided and abetted the accused who inflicted the wounds by, for example, the use of the baseball bat, then self-defence would also need to be left on that issue. Both accused have said in one form or another that at the time they used the bat to strike Mr Shepherd, they believed it was necessary to defend themselves, each other or Sarah Kell from Mr Shepherd.

21 If the jury cannot determine who stabbed Mr Shepherd, then they will have to consider whether both accused are guilty of murder or manslaughter on the basis of acting in concert or aiding and abetting each other.[1] I note at this point that Mr Danos has just made submissions on behalf of the accused man Mr Kell that acting in concert should not be left for the jury's consideration.

22 For self-defence to be left for the jury's consideration in respect of the accused they find beyond reasonable doubt stabbed Mr Shepherd (if they do), there has to be evidence on which the jury could decide the issue favourably to the accused. As the High Court observed in Zecevic v DPP:[2]

As Gibbs J observed in Reg v Muratovic_,_ " ... the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided ... that there is evidence on which a reasonable jury could decide the issue favourably to the accused".

23 Later in the joint judgment of the Court, the following appears:[3]

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence.

24 On this question of whether or not self-defence should be left to the jury, my attention has been directed to the observations of Vincent J, as he then was, in R v Williams, where his Honour observed:[4]

There is no need for recourse to the large number of authorities from a number of jurisdictions which have made clear that a trial judge must be astute to ensure than an accused person is not to be denied the consideration by the jury of any defence which may be legitimately open on the evidence. The judge's duty in this regard is clear, it is not dependent upon any defence advanced on behalf of the accused and great care must be taken by the judge to ensure that full effect is given to this principle, even in the face of express disavowal by the accused of the possible defence involved.

25 As the Court of Appeal (per Tadgell (dissenting), Ormiston and Phillips JJA) made clear in R v Kear,[5] if self-defence is open on the evidence then a judge must charge the jury on self-defence even where the factual basis for self-defence is inconsistent with the accused's version events at trial.

26 In many respects, the question posed by Mr Rose in the course of his submissions is answered by Ormiston JA in Kear as follows, although I note that Mr Rose does not accept this is necessarily the complete answer to his submission:

Could the jury, therefore, reasonably conclude that the blow struck by the applicant was reasonably thought necessary by him for his self-defence notwithstanding that he gave no direct evidence as to that belief? In my opinion such an inference was reasonably open on these facts. The blow must have been struck for some purpose and a logical reason, indeed the most logical reason, for it being struck is that the applicant wished to bring to an end a struggle to which he was an unwilling party and in which some unwelcome force was being applied to him, whether or not his visit to the flat had led Depke to attack him. If he could reasonably be perceived as the victim of the fight, then it would leave open the reasonable possibility that he thought it necessary to land the critical blow in order to defend himself from Depke's attack and, in particular, from the kicking, kneeing and head-butting which Depke was inflicting upon him.

27 In my opinion, if the jury concludes that Mr Kell was the accused who inflicted the stab wounds on Mr Shepherd, the following inferences may be open despite his denials regarding the use of the knife:

• First, that he went to the premises knowing that his sister had suffered violence at the hands of Mr Shepherd in the past and in circumstances where Mr Shepherd was at the premises late at night and against his sister's wishes.

• Second, he believed, based on his own experience that Mr Shepherd usually carried a knife.

• Third, that when he confronted Mr Shepherd about his being at his sister's house, Mr Shepherd was aggressive and a struggle developed in which he was the defeated participant.

• Fourth, that having gained a respite due to the efforts of Mr Dey, he believed that despite Mr Dey's efforts it was necessary to do what he did with the knife to protect himself from further attack, and to protect his sister and possibly Mr Dey.

28 If the jury concludes that Mr Dey was the accused who inflicted the stab wounds on Mr Shepherd, the following inferences may be open, despite his denials regarding the use of the knife:

• First, that he also went to the premises knowing that Sarah Kell had suffered violence at the hands of Mr Shepherd and in circumstances where Mr Shepherd was at the premises late at night and against her wishes.

• Second, he also believed that Mr Shepherd usually carried a knife.

• Third, that when he saw Mr Shepherd confronted by Mr Kell about his being at Sarah's house, Mr Shepherd was aggressive and a struggle developed in which Mr Kell was the defeated participant.

• Fourth, that he, Mr Dey, intervened with the baseball bat but used the knife because he believed that he, Simon Kell and Sarah Kell all remained at risk from Mr Shepherd unless he was disabled.

29 Ultimately as the High Court said in Zecevic, these are matters for the jury to consider: "Though the plea may seem to the trial judge to be 'weak and tenuous', it is for a jury not a judge to resolve an issue of this kind".

30 I propose to charge the jury on self-defence on all aspects of the case against both accused.

[1] See R v Lowery & King No 2 [1972] VicRp 63; [1972] VR 560 at 561-2; R v Makin [2004] VSCA 85.

[2] [1987] HCA 26; (1987) 162 CLR 645 at 665.

[4] [2000] VSC 20 at [13].

[5] [1997] 2 VR 555.