R v Parr [2009] VSC 166

2 Prior to charging the jury I heard submissions on the issue of whether the Crimes (Homicide) Act 2005 alone governs self-defence in relation to homicides occurring after 23 November 2005, as previously held by me in R v Pepper,[1] or whether the common law of self-defence also continues to apply, as held by Coghlan J in R v Gould.[2] The Victorian Criminal Charge Book published by the Judicial College of Victoria also suggests that there is concurrent operation of both the statute and the common law.[3]

3 In R v Pepper I set out some of the relevant history in the context of a case that concerned attempted murder. I will not repeat what I said there. In this matter it was submitted on behalf of the Crown that R v Pepper was correctly decided and that I should charge the jury on the basis that the Crimes (Homicide) Act sets out completely and exclusively the law on self-defence. Counsel for the defence submitted that I should follow R v Gould and the Charge Book. The substance of the submission made on behalf of the defence was that since R v Gould the practice in the Trial Division has been to charge on the basis of both the statute and the common law and that it would be unfair to Mr Parr to depart from that practice in his case, the Court of Appeal not having yet resolved the matter.

4 What was submitted to me on behalf of the accused as to the practice in the Trial Division accords with my own understanding of what has been occurring. All Trial Division judges, including myself, have been following R v Gould since it was decided so as to ensure there is no injustice to any accused and so as to avoid the possibility of a re-trial.

5 In this case I ruled that I would follow what is currently the practice in the Trial Division and charge the jury on the basis of the concurrent operation of both the statute and the common law. I did so whilst indicating that I adhered to the view I had expressed in R v Pepper. I accepted the submission of counsel for the defence that it would be unfair on Mr Parr not to charge the jury on the basis of concurrent operation given the divergent opinions which have been expressed, given the current practice in the Trial Division, and given the fact that the Court of Appeal has not yet dealt with the issue. I said I would publish reasons why I adhere to the view I expressed in R v Pepper. On 5 May 2009 the jury returned a verdict of not guilty of murder but guilty of defensive homicide and I indicated to counsel that I would publish reasons quickly so that the Director of Public Prosecutions could consider his position.

6 The Crimes (Homicide) Act was passed in response to the Victorian Law Reform Commission final report entitled "Defences to Homicide".[4]

7 The Crimes (Homicide) Act does not in terms abrogate the common law of self-defence for homicides committed on or after 23 November 2005. The issue is whether Parliament has expressed an intention to abrogate the common law of self-defence by its enactment of legislation which completely and exclusively says what the law shall be in relation to self-defence.[5]

8 The starting point must be the legislation itself.

"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."(emphasis is mine)

It seems to me that the express provisions of s 9AC make it clear that there is to be no continued operation of the common law. If the common law were to continue to operate then conduct which was not murder at common law, because the Crown was not able to prove there was no lawful justification or excuse on the basis of common law self-defence, would not be conduct which would "otherwise constitute murder". Thus, if s 9AC is to operate according to its terms in circumstances where the common law still applies, s 9AC would be considered only after self-defence at common law had been negated. This cannot be Parliament's intention.

"A person who, by his or her conduct, kills another person in circumstances that, but for s 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide)..."(emphasis is mine)

Again, it is clear from the terms of s 9AD, in my view, that there is no continued operation of the common law. If there were, the conduct would not constitute murder "but for s 9AC" unless common law self-defence was negated first, and s 9AC then addressed. I cannot accept that that is the correct approach.

11 The statute comprehensively addresses self-defence for manslaughter. It has not been suggested that there is any room for the common law's continued operation there. But the statute does not do this by simply reproducing the common law. In one respect (deprivation of liberty in s 9AE(b)) it expands the potential operation of the self-defence, and in one respect (response to lawful conduct in s 9AF) it reduces the potential ambit of its operation. Parliament's intention was to deal with self-defence comprehensively and exclusively in relation to manslaughter. This suggests to me that the intention was the same in relation to murder.

12 There are other aspects of the legislation which seem to me to reveal an intention to completely and exclusively cover the field. They are:

(a) There are provisions of the Act which, in my view, can not operate concurrently with the unamended common law in a principled and comprehensible way. These provisions are s 9AF (response to lawful conduct), s 9AG (duress), s 9AH (family violence) and s 90AJ (intoxication). If that is right, these provisions must be treated as either particular amendments to the common law,[6] or as components of a legislative scheme to replace the common law. The breadth and nature of these particular changes lead me to conclude that the latter is the correct analysis.

(b) The Victorian Law Reform Commission expressed the view that "a person is never justified in intentionally causing death or serious injury where the threat of harm is to property only".[7] Its recommendations in relation to the nature of the threat reflect that view. The provisions of the Crimes (Homicide) Act also reflect that view. Defence of property is not included in the description of the relevant belief. It seems to me that Parliament must be taken to have enacted what the law is to be on that issue. If the common law has concurrent operation, that intention is nullified.

13 My conclusion is that a consideration of the provisions of the Act reveals an intention on the part of Parliament to completely and exclusively say what the law shall be governing self-defence in homicide cases.

14 There are further considerations which seem to me to fortify this conclusion. They are:

(1) The most significant alteration to the law in the statute is the designation of the relevant belief as being a belief that the conduct is necessary in response to a threat of death or really serious injury. The existence of a threat of this nature has not been part of the common law since Zecevic v R[8] was decided in 1987. The concept that self-defence, where murderous intent has been proved, should be premised on a belief in a threat of death or really serious injury does, however, reflect the common law prior to the decision in Zecevic. Prior to Zecevic, the law was as set out in Viro v R.[9] The statute does not reproduce the position as it was under Viro,[10] but it cannot be said that the statute has introduced into self-defence a factor unknown to the common law.

(2) Recommendation 2 of the Law Reform Commission[11] was as follows:

"The law of self-defence and other defences to homicide should be codified in Victoria and included in a new part of the Crimes Act 1958"

(3) On my reading of the Attorney-General's Second Reading Speech,[12] he made it clear that the common law was being changed. He said:

"This bill will change the way self-defence operates in relation to murder".

He called the bill's provisions "the new test". He said that the new test "applies only" if the accused has the belief specified in the statute. He said that if the prosecution could prove the accused did not have that belief "the accused will be guilty of murder". It is true that he also said that the statute's two-stage approach "retains the same elements as the common law test", but reading what he said about self-defence as a whole, it seems to me that all he was referring to there were the "elements" of a belief on the one hand and reasonable grounds on the other. I do not read what he said as relevantly contradicting what he had said previously, namely, that the law of self-defence was being changed; that there was a new test; that the new test applied only if the accused 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; and that if the prosecution could prove the accused did not have that belief the accused would be guilty of murder.

15 The principal argument in favour of the continued operation of the common law is the rule of statutory interpretation that a right cannot be removed, and criminality cannot be imposed, without clear legislative intent. The strictness of this approach to construction has varied over time. The formulation of the rule which is now the generally accepted one is that of Gibbs J (as he then was) in Beckwith v The Queen [13]. The relevant passage was recently cited by Nettle JA in RJE v Secretary to the Department of Justice & Ors[14] and by French CJ and Kiefel J in ACCC v Channel Seven Brisbane[15]. Gibbs J said:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences....This rule is perhaps one of last resort."

16 If there is ambiguity in the statute itself, or if there is a genuine choice between two competing interpretations, the ambiguity must always be resolved, and the choice must always be made, in favour of the accused. In my view that is not the position here. I do not consider that there is ambiguity in the legislation, nor, given the legislation's comprehensive provisions, that there is any choice to be made. The rule of construction cannot itself be the source of the ambiguity or the choice.

17 It is true that the Law Reform Commission did not recommend the introduction or re-introduction of a requirement that there be the high level of threat which is provided for in s 9AC. It is also true that the Attorney-General did not in his Second Reading Speech refer to the fact that as a result of the reforms an individual might be disadvantaged. But it seems clear that some of the reforms do disadvantage individuals, on any view. The provisions governing intoxication must disadvantage some individuals. Whilst the Law Reform Commission might not have recommended the belief enacted in s 9AC, Parliament's intention to re-introduce consideration of the existence or otherwise of that level of threat is clear.

18 The Crimes (Homicide) Act expressly abolished the law of provocation. It did not expressly abolish the common law of self-defence. The contrast is important and potentially significant. But it needs to be seen in context. The law of provocation was not being replaced with anything. It was being abolished. Nothing could be said about it other than just that.

19 It is possible to frame a charge to the jury which gives some logical consistency to the continued operation of the common law, and the approach of Coghlan J does that. The approach adopted is to instruct the jury to turn to the common law if they find that the prosecution has proved beyond reasonable doubt that the accused did not have the belief provided for in s 9AC.

20 There is an inherent contradiction in this approach in that s 9AC is premised on the proposition that the accused has committed conduct that "would otherwise constitute murder". If the common law continues to provide a defence, the conduct would not otherwise constitute murder.

21 Concurrent operation also leads to this potential anomaly. For these purposes I will ignore the burden of proof. A person who has the belief provided for in s 9AC, that the conduct is necessary in response to a threat of death or serious injury, but who does not have reasonable grounds for a belief about a threat of that high level, will be guilty of defensive homicide. Such a person may have had reasonable grounds for a belief about a lower level of threat. If his belief had been about that lower level of threat, and not the high level of threat provided for in s 9AC, he would have been guilty of nothing because the common law would have provided a complete defence. So, if one hypothesises two persons acting on grounds which are reasonable for the lower level of threat but not the higher, the one with the belief in the higher threat will be guilty of defensive homicide and the one with the belief in the lower threat will be guilty of nothing.

22 At my instigation the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission were notified of the issue raised here, in case it might be contended that the Charter of Human Rights and Responsibilities Act 2006 might have a role to play. The Commission wrote to the Court advising it would not be intervening. Counsel for the Attorney-General appeared and submitted the Charter had no role to play in the resolution of the matter. No contrary submission was made. In the absence of any contrary submission I accepted the submission made on behalf of the Attorney-General.

23 Whilst for these reasons I adhere to the view I expressed in R v Pepper, out of fairness to the accused given the conflicting views and the current practice, I rejected the Crown's submission that I should charge the jury on self-defence on the basis of the statute alone.

[1] [2007] VSC 234.

[2] [2007] VSC 420.

[3] The Charge Book currently deals with the issue at 8.9.1.1 paras. 64 - 70 and at 8.9.2.1 paras. 68 - 71.

[5] I have expressed the issue borrowing the terminology of Dixon J in E_x parte McLean_ [1930] HCA 12; (1930) 43 CLR 472, 483 in the context of the constitutional issue concerning inconsistency between Commonwealth and State legislation.

[6] The Charge Book suggests the provisions of s 9AJ (intoxication) and s 9AH (family violence) do amend or clarify the common law, whereas s 9AF (response to lawful conduct) does not: See 8.9.1.1 paras. 32, 37, 48, 69 & 70. There is a basis for this distinction as s 9AF is expressed as a qualification upon s 9AC and s 9AE, whereas s 9AJ and s 9AH are expressed as referrable to the specified offences themselves.

[7] Victorian Law Reform Commission "Defences to Homicide: Final Report", at 3.82.

[8] [1987] HCA 26; (1987) 162 CLR 645.

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

[10] Under Viro, reasonable proportionality was an issue and the differentiation between murder and manslaughter was based on the existence or otherwise of a belief as to reasonable proportionality of the defensive force used. Under the statute, the differentiation between murder and defensive homicide is based on the existence or otherwise of reasonable grounds for the belief as to the threat. Proportionality is not a requirement, it is merely a factor to be taken into account.

[11] This report may be considered pursuant to s 35 of the Interpretation of Legislation Act 1984 (Vic).

[12] Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349-56. This speech may be considered pursuant to s 35 of the Interpretation of Legislation Act 1984 (Vic).

[13] [1976] HCA 55; (1976) 135 CLR 569, 576. The approach articulated by Gibbs J in Beckwith v The Queen reflects some older decisions, such as that of O'Connor J in Chandler & Co v Collector of Customs (1907) 4 CLR 1717, 1734-5; but generally the older authorities express the rule in stricter terms. In this respect I refer to Richardson v Austin [1911] HCA 28; (1911) 12 CLR 463, 474 per Barton J; Ingham v Hie Lee [1912] HCA 66; (1912) 15 CLR 267, 271 per Griffith CJ; and The King v Adams [1935] HCA 62; (1935) 53 CLR 563, 567 per Rich, Dixon, Scott and McTiernan JJ. Since Beckwith v The Queen, Gibbs J's statement of the rule has usually been adopted, although there are some judgments which might be seen to still reflect the stricter approach, such as Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353, 359-360 per Murphy J; and Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338, 350 per Murphy J.

[14] [2008] VSCA 265 at [99]

[15] [2009] HCA 19 at [108]