R v Shumski

RULING 2 - Whether recklessness to be left as alternative head of mens rea for murder - Recklessness not to be left - Herodotou v The Queen [2018] VSCA 253; Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313; Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

RULING 3 - Whether open to leave self‑defence to jury in view of Crown argument that accused was responding to lawful conduct by deceased (in defending MC) - Whether reasonably possible accused not responding to lawful conduct or that did not know deceased's conduct was lawful - On current state of evidence, open to leave self‑defence - Crimes Act 1958 (Vic), ss 322I, 322K, 322L & 322N; R v McDowall (Ruling No 1) [2019] VSC 341; Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645.

1 Spencer Shumski is charged with the murder of Clinton Allen at Sale on 7 May 2023. At that time, Mr Shumski was aged 20, and Mr Allen was aged 38.

2 This judgment concerns three rulings - two made pre‑trial earlier this week, and one made today (Wednesday 13 November 2024) after empanelment of a jury but before the matter was opened by the prosecutor.[1]

3 CCTV footage of the incident shows that, as Mr Allen ran at him, Mr Shumski stabbed Mr Allen twice with a knife to the chest region. The medical evidence is that, as a result of the internal damage caused by one of the stabbings, Mr Allen died at the scene of the incident. These facts are not disputed.

4 The Crown case is that Mr Shumski deliberately stabbed Mr Allen with the intention of causing him at least really serious injury and while not acting in self‑defence. The defence case is that Mr Shumski did not have murderous intent and that he was acting in self‑defence. Counsel agree that manslaughter should be left to the jury as an alternative verdict, and that self‑defence should be left in respect of both murder and manslaughter.

5 Prior to empanelment of a jury, two matters of significance arose. The first question concerned whether the jury should be directed that the Crown must prove that the elements of voluntariness,[2] mens rea and an absence of self‑defence accompanied both stabbing actions, notwithstanding that only one of those actions resulted in the fatal stab wound. The second question concerned whether recklessness should be left as an alternative head of mens rea for murder.

6 Counsel ultimately agreed that the answer to the first question was yes, and that the answer to the second question was no. That said, the matters are of sufficient importance that I should record my reasons for ruling in that manner in each instance.

7 A third issue arose today, after empanelment of the jury but before the Crown opening (which is scheduled to be delivered tomorrow morning). Despite noting a moment ago that counsel agree that self‑defence should be left to the jury, Mr Glynn, who appears for the Crown, raised the question whether the occasion for self‑defence did not even arise on the evidence, given s 322L of the Crimes Act 1958 (Vic). In particular, in his submission, Mr Shumski was responding to lawful conduct by Mr Allen because the latter was defending his friend Michael Callow from an attack by Mr Shumski, and, at the time of Mr Shumski's response, he knew that Mr Allen's conduct was lawful. In the end, I understood Mr Glynn to concede that, on the evidence as it is expected to be, self‑defence still should be left, but that it will be a matter for the jury whether they are satisfied beyond reasonable doubt that the elements of s 322L have been engaged so as to oust self‑defence, and, if not, whether for other reasons Mr Shumski was not acting in self‑defence as defined in s 322K of the Crimes Act.

8 Notwithstanding Mr Glynn's concession in that respect, the issue is also of sufficient importance that I should record my reasons for accepting that concession.

9 Accordingly, in addition to what I said ex tempore in respect of all three issues, these are my reasons for ruling as I did.

10 I turn first to a brief summary of the evidence of the circumstances giving rise to the charge of murder, commencing with the lead‑up events.

11 On the evening of Saturday 6 May 2023, Mr Allen had been at Jack Ryan's Irish Bar in Sale with his wife Rebecca Allen, his friends Michael Callow and Lachlan Reynolds, and his daughter's boyfriend Zebulin Hartig ("Mr Allen's group"). They were celebrating Mrs Allen's thirty‑eighth birthday.

12 Also at the same hotel were Mr Shumski and his friends Lachlan Sherlock and Michael Shortis ("Mr Shumski's group").

13 Very late in the evening, it was alleged that Mr Callow had stolen a female patron's phone and that he had inappropriately touched another female patron on the leg and the backside. This led to a confrontation between Mr Callow and others, which descended into pushing and shoving. Ultimately, Mr Callow was ejected from the hotel. Thereafter, Mr Allen and the others in his group joined Mr Callow outside.

14 After some more argy‑bargy out the front of the hotel, at about 12:45 a.m., Mr Callow, Mr Allen and Mrs Allen followed Mr Reynolds and Mr Hartig, who had headed off down the footpath on MacAlister Street moments earlier.

15 As Mr Allen's group walked away from the hotel, Mr Shortis was seen "barrelling towards the exit". Hotel staff intervened and prevented him from leaving while Mr Allen's group were within sight. Mr Shumski and a few others assisted in holding Mr Shortis and in trying to calm him down. Mr Shortis then attempted to leave via another exit, but was prevented from doing so by Mr Shumski and hotel staff. Mr Shumski and Mr Shortis then went to the toilets, followed by an acquaintance, Kiara Barker. Meanwhile, Mr Sherlock looked through a fence towards where Mr Allen's group was walking on MacAlister Street. Ultimately, Mr Shumski's group left the hotel at about 12:48 a.m.

16 Mr Shumski returned briefly to the hotel and took a satchel from Ms Barker, before finally leaving at 12:49 a.m. He then caught up with Mr Shortis and Mr Sherlock, who were waiting for him on MacAlister Street, outside Sale College.

17 As his group neared the intersection with York Street, at 12:51 a.m., Mr Shumski rang Tyren Smith and asked him to come and pick him up "right now", and said it was "important". He sounded "stressed".

18 Ms Barker followed Mr Shumski's group down MacAlister Street.

19 At about 12:52 a.m., Mr Shumski removed the black satchel from his body and handed it to Mr Shortis. Mr Sherlock and Mr Shortis turned back towards the hotel. Mr Shortis returned to the hotel to retrieve something he left behind, whereas Mr Sherlock turned and ran back towards Mr Shumski as he approached York Street.

20 By this stage, Mr Allen's group had crossed over MacAlister Street and were walking along York Street. Mr Shumski also turned the corner into York Street and followed Mr Allen's group, who were scattered a bit at this point. Ms Barker ran up to join Mr Shumski, and Mr Sherlock was a short distance behind them. Someone from Mr Shumski's group yelled out to Mr Allen's group, who stopped and turned around.

21 The stabbing incident itself was recorded by a CCTV camera on York Street. While it is a bit grainy, in short, the following events can be seen on the CCTV footage.

22 At about 12:53 a.m., Mr Shumski and Mr Callow walked towards each other. Ms Barker, who had been immediately behind Mr Shumski, stopped as he neared Mr Callow. Ms Allen, who was behind Mr Callow, tried to grab him as he neared Mr Shumski.

23 By this stage, it appears that Mr Shumski had pulled a knife from his clothing. Mr Callow then stepped back and sideways off the footpath and onto the roadway as Mr Shumski kept moving towards him.

24 As he neared Mr Callow, Mr Shumski swung his right arm at him, which, on the Crown case, caused his thigh to be nicked by the knife. Each man then stepped back from the other and assumed a stance suggestive of a preparedness to fight.

25 In the meantime, Mr Allen came running from some distance behind Mr Callow and towards Mr Shumski with his arms raised. He appeared to attempt to push or strike Mr Shumski with his right hand as he stumbled towards him. Mr Shumski retreated. As he did so, he jumped and swung his right arm at Mr Allen, stabbing him in the chest region. Mr Allen faltered, with his hands and knees hitting the road. But, while still in forward motion, he got up immediately and kept running at Mr Shumski, who was still retreating. Mr Allen lunged at Mr Shumski and threw a right round‑arm punch at him. As this occurred, Mr Shumski side‑stepped slightly to his left and swung his right arm at Mr Allen, with the knife again striking him in the chest region.

26 While this occurred off‑camera, there is eye‑witness evidence that Mr Allen fell to the ground. He did not get up again. Desperate attempts were made to revive him, but, sadly, he was later declared deceased at the scene by paramedics.

27 Meanwhile, after Mr Allen fell onto the roadway, Mr Shumski and Mr Sherlock walked backwards away from the scene. Together with Ms Barker, they headed back around the corner to MacAlister Street. Mr Smith arrived in a vehicle, collected Mr Shumski and Mr Sherlock there, and drove them away, leaving Ms Barker behind.

28 The medical and photographic evidence shows that Mr Allen suffered two stab wounds - one to his upper left chest, just under his nipple, and the other in the middle of his chest, near his sternum.

29 In his report, Dr Hans de Boer, the forensic pathologist who conducted the autopsy on Mr Allen, said the stab wound to the upper left chest, which he labelled wound C, was about five centimetres in depth. It was associated with injury to his heart and aorta, causing massive blood loss and cardiac dysfunction. The effects of that injury were, Dr de Boer said, "sufficient to explain death in the absence of contributing factors".

30 In contrast, in Dr de Boer's opinion, the stab wound to the middle of Mr Allen's chest, which he labelled wound D, was about four centimetres in depth and was associated with injury to the liver, causing a small amount of intra‑abdominal blood loss. In Dr de Boer's view, "this injury was therefore less relevant for the cause of death".[3]

Ruling 1: Whether both stabbing actions must be accompanied by all mental elements

31 I turn now to the first ruling. This concerned whether the Crown must prove that the elements of voluntariness, mens rea and an absence of self‑defence accompanied both stabbing actions, notwithstanding that, on Dr de Boer's report, it appeared that only one of those actions resulted in the fatal stab wound.

Dr de Boer's viva voce evidence on the voir dire

32 For the purposes of considering this issue, Dr de Boer was called to give viva voce evidence upon a voir dire.[4]

33 In his evidence, Dr de Boer said that the internal damage associated with wound C alone was the cause of death. It was not survivable. The damage to the aorta and the heart resulted in massive blood loss. The mechanism is that the blood accumulates around the heart, impacts upon its contractability and thereby diminishes heart function, which adds to the general ill‑effects of blood loss.

34 The internal damage to the liver associated with wound D, on the other hand, was "relatively mild", was "superficial", resulted in only "a very small amount of blood within the abdominal cavity", and made only "very, very minor contribution" to death. Dr de Boer said it was the "type of injury [that] would usually be dealt with expectatively; so, a [watch‑and‑see] policy in hospital". He said he "can best summarise it" by saying that "this injury, in a clinical setting, would not necessarily be seen as life threatening or very serious and usually [would be] dealt with [by] a watch‑and‑see policy, so ... in that respect it's a minor injury". By itself, he said, it would not have killed Mr Allen.

35 Dr de Boer said that both wound tracts were towards the back, and to the right (from the deceased's perspective), and a little bit upwards. In other words, both wounds were more or less in the same direction.

36 He also opined that there would not necessarily be any inconsistency with Mr Allen "receiving a stab wound to his heart and then managing to get up to his feet and run and act energetically for at least a period of a few seconds afterwards".

37 Following that evidence, Mr Glynn conceded that it would not be open to the jury to find that the damage associated with wound D was also an operating and substantial cause of death. Rather, it was only the internal damage associated with wound C that could be found to have caused death.

38 In those circumstances, the question became whether, in view of the medical evidence, the photographic evidence and the CCTV footage of the incident, it could be determined which of the two stabbing actions resulted in wound C. After examining the CCTV closely again, Mr Glynn submitted that, while the first stabbing action in isolation seemed more likely to be the candidate for causing wound C, it could not be said which wound was caused by the second stabbing action when considered in isolation. This, he accepted, necessarily left open the reasonable possibility that either wound Could have been caused by either stabbing action. I accept those submissions.

39 Further, in those circumstances, it was also accepted that it would be fruitless to leave to the jury the question of the identification of which of the two stabbing actions caused wound C, and equally that there would be no point in requiring them to be unanimous as to the answer to that question - because neither question could be answered satisfactorily.

40 Next, it should be noted that, while the two actions are separate acts, they occur very close in time and circumstances. That said, it may be that the circumstances are sufficiently distinct in time and/or sufficiently different in circumstances that a jury might take a different view of whether they were satisfied, beyond reasonable doubt, that murderous intent and/or the absence of self‑defence accompanied each of those two actions.

41 In those circumstances, and given the requirement of contemporaneity of the elements of the act causing death and the requisite mental elements, I consider that, for the Crown to succeed on either murder or manslaughter, the jury will have to be satisfied, beyond reasonable doubt, that the elements of voluntariness, mens rea and an absence of self‑defence were present when both stabbing actions occurred, albeit only one of the resulting wounds caused death.[5]

42 Accordingly, when the time comes, I shall direct the jury in a manner that makes these points clear.

Ruling 2: Whether reckless murder should be left

43 I turn then to my second ruling. This concerns whether the Crown should be allowed to go to the jury on murder on the basis of recklessness as an alternative head of mens rea to intention to kill or intention to cause really serious injury. The issue arose because recklessness was mentioned in the summary of prosecution opening (which was not drawn by Mr Glynn).

44 The authorities recognise that one of the risks that arises from leaving reckless murder in addition to intentional murder is that, notwithstanding directions to the contrary, the jury may inadvertently treat the recklessness requirement as involving an objective, rather than a subjective, analysis. It is said that this risk is likely to be heightened when the case also raises issues of voluntariness, manslaughter or self‑defence.[6]

45 In my opinion, this is one of those cases in which recklessness should not be left to the jury precisely because of the risk of that kind. For this is a case where at least manslaughter and self‑defence (for both murder and manslaughter) will be matters the jury must consider. Further, in my estimation, this is a case in which reckless murder would be so incidental as to be a distraction from the Crown's real case on murder - namely, that of intention to cause really serious injury without any belief in the need for self‑defence.[7]

46 The difference between the recklessness required for murder and the dangerousness required for manslaughter is apt to be confused by a jury. In this case, recklessness would require proof, beyond reasonable doubt, that Mr Shumski knew or believed that, in performing each stabbing action, he would probably kill or cause at least really serious injury to Mr Allen.[8] Dangerousness, on the other hand, requires proof, beyond reasonable doubt, that a reasonable person in the position of Mr Shumski would have realised that, in performing each of those actions, he was exposing Mr Allen to an appreciable risk of serious injury.[9]

47 In Wilson v The Queen, when settling the test for manslaughter by an unlawful and dangerous act, the High Court was concerned to remove the qualifier "really" in the phrase "really serious injury" that had been preferred by Smith J in R v Holzer.[10] This was because, in their Honours' view, the latter requirement would bring "manslaughter perilously close to murder in this respect", and the "distinction between the two may easily be blurred in the minds of the jury".[11] In my opinion, a similar point may be made about leaving murder by recklessness and manslaughter by an unlawful and dangerous act.

48 In this case, Mr Glynn has made it clear that, while he requires the jury to be directed on intention to kill as well as intention to cause really serious injury, his principal case on murder will be that Mr Shumski had an intention to cause at least really serious injury. In my respectful opinion, that is a sensible approach, for proof of intention to kill strikes me as very unlikely, if not hopeless.

49 In those circumstances, and given the nature of the incident that can be seen on the CCTV, I think there is a risk that, notwithstanding the most careful directions, the jury's task would be complicated unduly - and potentially confused - by having to consider and make decisions about recklessness as well as the other elements in this case. As it is, the jury will have to consider whether Mr Shumski had an intention to cause really serious injury (for the purposes of murder), whether instead his actions were dangerous in the sense required (for the purposes of manslaughter), and whether he was not acting in self‑defence (for the purposes of either murder or manslaughter). I think that this risk is heightened when the question of self‑defence concerns both subjective and objective considerations.[12]

50 While precluding reliance on recklessness might potentially deprive the Crown of a path to conviction on murder, that can be said in almost every case where recklessness is not left. The greater risk in leaving murder by recklessness in this case is that it might well confuse the jury and result in a miscarriage of justice.

51 Accordingly, unless in the running of the trial there is a significant change in the case warranting a different view, the Crown will not be allowed to urge reckless murder to the jury, and I shall not direct the jury on that topic.

Ruling 3: Whether leaving self‑defence is precluded by operation of s 322L

52 I turn now to my third ruling. The issue arose today, after empanelment of the jury but before the Crown opening (which is scheduled to be delivered tomorrow morning).

53 Mr Glynn advised that, while it may not have been clear in the summary of prosecution opening, he was intending to submit, after the close of the evidence, that s 322L of the Crimes Act would preclude Mr Shumski from relying on self‑defence. This is because, in his submission, Mr Allen's behaviour was lawful, as he was defending Mr Callow. He raised the issue now because he was intending to say in his opening to the jury (albeit not in an argumentative form) that the Crown would ultimately be submitting that Mr Shumski's actions were not in self‑defence for various reasons, including that Mr Allen's conduct was lawful.

Sections 322I, 322K and 322L of the Crimes Act

54 The provisions relevant to this question are ss 322I, 322K and 322L of the Crimes Act.

55 Section 322K is in these terms:

(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self‑defence.

(2) A person carries out conduct in self‑defence if -

(a) the person believes that the conduct is necessary in self‑defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

Notes

1. See section 322M as to belief in circumstances where family violence is alleged.

2. The circumstances in which a person may carry out conduct in self‑defence include -

• the defence of the person or another person;
• the prevention or termination of the unlawful deprivation of the liberty of the person or another person;
• the protection of property.

56 Section 322L is in these terms:

Self‑defence does not apply to a response to lawful conduct

Section 322K does not apply if -

(a) the person is responding to lawful conduct; and

(b) at the time of the person's response, the person knows that the conduct is lawful.

57 Relevantly, s 322I(1) provides that the accused has the evidential onus of raising self‑defence by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self‑defence; and s 322I(2) provides that, if the accused satisfies the evidential onus referred to in s 322I(1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self‑defence.

58 In support of his submissions, Mr Glynn referred to the ruling of Beale J in R v McDowall (Ruling No 1).[13] On facts quite different from those in the present case, his Honour ruled that self‑defence should not be left to the jury because of the application of s 322L. In the course of that ruling, his Honour said this:[14]

[8] ... Focusing on s 322L(a) of the Act, defence counsel submitted that I was obliged to leave self‑defence for the jury's consideration, unless I found "that the jury would necessarily be satisfied beyond reasonable doubt that [the deceased's] conduct was lawful".

[9] In the course of discussion, I suggested reframing the relevant question as follows: "Could a jury find or consider that there was a reasonable possibility that [the deceased's] conduct was unlawful?" Defence counsel agreed that that was the appropriate question. If I answered it in the affirmative, it followed that the defence of self‑defence was not precluded by s 322L.

59 After next setting out the parties' arguments, his brief reasons given earlier for declining to leave self‑defence, and the fact that he gave his ruling in the course of discussions under the Jury Directions Act 2015 (Vic), Beale J went on to say the following:[15]

[15] In my view, [the deceased] was clearly entitled to act as he did in self‑defence when [the accused and the co‑accused] made their way into his room. In other words, a jury could not consider that there was a reasonable possibility that [the deceased's] conduct was unlawful.

[16] The intruder or intruders, whoever they were, did not knock, did not call out to [the deceased] before entering, did not do anything which could have been interpreted as reassuring. They entered by stealth. Whilst [the deceased] may not have known the intentions of the men as they entered his room, the manner of entry strongly suggested that the intruder or intruders might intend to do him harm. Moreover, [the deceased] was outnumbered. The fact that there were two male intruders trying to enter his room increased the chances that they meant to do him harm. Making a pre‑emptive strike of the kind he did was, in my view, a reasonable response to the danger he faced.

60 As I understood Mr Glynn, he made two principal submissions. First, he commended to me Beale J's test vis‑à‑vis s 322L in paragraph [9] of his Honour's reasons, and which he applied in paragraph [15], as a means of considering whether self‑defence should be left in this case.

61 Second, while Mr Glynn acknowledged that the common law of self‑defence had been abolished in this State,[16] and while he accepted that at common law there was no rule precluding lawful self‑defence when the accused originated an attack, he nevertheless referred to passages from Zecevic v DPP[17] that, in his submission, qualified that position. As I understood him, in this connection, Mr Glynn went so far as to submit that, in the present case, all the Crown has to prove, to engage s 322L and thereby oust self‑defence, is that Mr Shumski knew that he was the aggressor vis‑à‑vis Mr Callow.

62 As for the first point, I disagree, at least in part. In the paragraphs on which Mr Glynn relied, Beale J was focusing only on s 322L(a). But s 322L is plain in requiring both paragraphs (a) and (b) of the provision to be satisfied before it can operate to deny the operation of self‑defence in accordance with s 322K. Thus, even if there was no reasonable possibility that the conduct to which an accused was responding was unlawful, that would not preclude the application of self‑defence unless there was also no reasonable possibility that the accused did not know (or believe), at the time of his or her response, that the conduct to which he or she was responding was lawful.

63 As adapted to the circumstances of this case, s 322L can deny the operation of the self‑defence provided for in s 322K only if it is proved, beyond reasonable doubt, that, when performing both stabbing actions, (a) Mr Shumski was responding to lawful conduct by Mr Allen (namely, in attacking Mr Shumski in defence of Mr Callow) and (b), at the time of Mr Shumski's responses, he knew that Mr Allen's conduct was lawful.

64 As to Mr Glynn's second point, while it may assist the Crown, forensically speaking, to prove that Mr Shumski knew he was the aggressor in relation to Mr Callow, that is not enough to satisfy either limb of s 322L. Rather, as I have said, for s 322L to preclude any resort to self‑defence pursuant to s 322K, the Crown would have to satisfy the jury, beyond reasonable doubt, that, when performing both stabbing actions, (a) Mr Shumski was responding to lawful conduct by Mr Allen and (b), at the time of his responses, he knew that that conduct was lawful.

65 Thus, because both limbs of s 322L must be proved in order to deny reliance on self‑defence, then, provided the evidentiary burden is met in relation to s 322K, the "defence" will still be open even if the jury are satisfied to the criminal standard that, when Mr Shumski was performing both stabbing actions, Mr Allen was acting lawfully by attacking him in defence of Mr Callow but they cannot exclude the reasonable possibility that Mr Shumski did not, at the time of either of his actions, know (or believe) that that was so. Put another way, even if the jury are satisfied beyond reasonable doubt that the test in s 322L(a) is established, s 322L(b) cannot be engaged so as to oust self‑defence under s 322K if the same jury considers it is reasonably possible that Mr Shumski mistakenly believed that Mr Allen was acting unlawfully in attacking him and when he (Mr Shumski) responded to that attack.

66 Ultimately, as I understood him, Mr Glynn did not submit that self‑defence should be taken from the jury (unless the evidence altered in a material way). Rather, I understood his position to be that, in his opening, he would flag with the jury simply that one of the reasons why the Crown say self‑defence should not apply in this case is because Mr Shumski was responding to lawful conduct by Mr Allen (in defending Mr Callow) and that, at the time of his response, Mr Shumski knew that to be so. Mr Cronin was content for Mr Glynn to take that course.

67 As I indicated to Mr Glynn during argument, on the CCTV footage of the incident, and having regard to the other evidence expected to be called in this case, I could not see how I could properly fail to leave self‑defence by reason of the operation of s 322L. For, as I see the evidence, the jury could consider it reasonably possible (i) that Mr Allen was not acting lawfully on either or both occasions when he attacked Mr Shumski and (ii) that, even if he were acting lawfully, Mr Shumski believed Mr Allen was acting unlawfully.

68 Further, when regard is had to the CCTV footage, the other expected evidence, and the tests in s 322K,[18] as I see it, the jury also could consider it reasonably possible that, when he performed either or both stabbing actions, Mr Shumski believed his conduct was necessary in self‑defence and that that conduct was a reasonable response in the circumstances as he perceived them.

69 It follows that, once all the evidence is in, unless there is a material change in the evidence vis‑à‑vis the potential operation of ss 322L and/or 322K, I must leave self‑defence to the jury.

[1] These reasons were delivered to the parties during a trial in which the jury were discharged without verdict the next day (14 November 2024), but were acted on in a subsequent trial that went to verdict (on 13 December 2024). (In fact, a second jury was also discharged without verdict before a third jury was empanelled and went to verdict.) However, these reasons were not published to the world at large at that time in order to avoid prejudicing any of these trials. Now that the trial has concluded, these reasons are being published to all today - the day on which my reasons for sentence are also being delivered and published (see R v Shumski [2025] VSC 148). I have left these reasons for ruling in the present tense, as they were when delivered to the parties at trial.

[2] In these reasons, I shall use the term "voluntariness" as shorthand for the requirement, in both murder and manslaughter, that the act or acts causing death must be committed consciously, voluntarily and deliberately.

[3] Dr de Boer's report (dated 25 July 2023) at p 4, para [2]; Depositions at p 77.

[4] As a matter of convenience, Dr de Boer gave evidence on the voir dire via video‑link from Melbourne.

[5] As to which, see, e.g., DPP v Zheng [2013] VSCA 304 at [22]-[26] (per Priest JA) and [43]-[44] (per Maxwell P); Meyers v The Queen [1997] HCA 43; (1997) 147 ALR 440 at 442 (per Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ); and R v Hughes (unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990) at 13-14.

[6] See, e.g., Herodotou v The Queen [2018] VSCA 253 at [136]-[138] (per Beach, Kaye and Weinberg JJA) and the cases cited, including Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 118-120 (per Barwick CJ).

[7] See, e.g., R v Hegarty [2011] VSC 111 at [8] (per Whelan J) and the cases there cited.

[8] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 at 468-470 (per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ); R v Aiton (1993) 68 C Crim R 578 at 590-595 (per Phillips CJ, Crockett and Vincent JJ); R v Barret [2007] VSCA 95; (2007) 16 VR 240 at 250[48] (per Eames JA, Maxwell P and Habersberger AJ agreeing).

[9] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 325 & 332-333 (per Mason CJ, Toohey, Gaudron and McHugh JJ).

[10] R v Holzer [1968] VicRp 61; [1968] VR 481 at 482.

[11] Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 333.

[12] See Crimes Act 1958 (Vic), ss 322K & 322L; and see further below.

[13] R v McDowall (Ruling No 1) [2019] VSC 341.

[14] R v McDowall (Ruling No 1) [2019] VSC 341 at [8]-[9] (footnotes omitted).

[15] R v McDowall (Ruling No 1) [2019] VSC 341 at [14]-[15].

[16] See Crimes Act 1958 (Vic), s 322N.

[17] Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 at 663-664 (per Wilson, Dawson and Toohey JJ) and 666-667 (per Brennan J).

[18] Including the belief required in the case of murder, as required by s 322K(3).