1 On 27 March 2009, as a result of a prank gone tragically out of control and fuelled by miscommunication and misunderstanding, the appellant, Tao Va, stabbed his friend, Quinton Alexander, to death.

2 The appellant was initially charged with murder. Ultimately, the Crown accepted his offer to plead guilty to manslaughter. He was sentenced, in the Supreme Court at Melbourne, to 11 years' imprisonment with a non-parole period of eight years.[1] In April 2011, he was granted leave to appeal against sentence.

3 The appellant relies in substance upon three grounds. He raises a question as to the sentencing judge's finding as to remorse. He contends that, in making that finding, he was denied procedural fairness. He also contends that the sentence below was manifestly excessive.

4 We have concluded that neither of the first two grounds are made out. We are satisfied, however, that the sentence was manifestly excessive, in the particular and somewhat unusual circumstances of this case. We would re-sentence the appellant to nine years' imprisonment, with a minimum term of six years.

5 The circumstances of the stabbing, and matters personal to the appellant, are set out in his Honour's sentencing remarks.[2] The relevant facts can be summarised as follows.

6 The appellant and Mr Alexander had been work colleagues and friends for approximately two years. Mr Alexander was at the time of the offence engaged to Ms Mel Muriwai. Some two weeks before the fatal incident, the appellant had separated from his partner, Nurhana Walton, and was living with Mr Alexander and Mr Alexander's father.

7 On Friday 27 March 2009, the appellant, Mr Alexander, Ms Walton, Ms Muriwai and another male friend were smoking cannabis and consuming alcohol at Mr Alexander's premises. On appeal it was remarked that the drug 'Ice' may have also been consumed by those present.

8 The men engaged in play fighting, which resulted in the appellant injuring himself and retiring to bed. At that stage, Mr Alexander and the other male in their company hatched a prank to shave the appellant's head. Upon waking up and finding that his hair had been shaved off, the appellant became enraged, damaging the premises and striking Ms Walton. Despite attempts to calm him down, he left the premises and went to Ms Walton's flat in Footscray West where he had previously lived. Ms Walton and Mr Alexander also travelled to the same premises.

9 The appellant then accused Walton of having a relationship with Mr Alexander. In an outburst of anger, the appellant began damaging various items of property at Ms Walton's flat. She attempted to placate him. In the course of doing so, the appellant mistakenly referred to her as 'Mel', the first name of Mr Alexander's fiancée. This led Mr Alexander to suspect that the appellant might have been having a relationship with Ms Muriwai. He reacted angrily, first punching and then choking the appellant. After breaking free, the appellant grabbed three knives from the kitchen, and went outside.

10 Ms Walton then locked Mr Alexander inside her flat, in order to prevent him from following the appellant, and tried to calm him down. She told him that the appellant's reference to 'Mel' must have been an accident. By that time the appellant was peering through the window. Upon seeing Ms Walton, his former partner, consoling Mr Alexander, the appellant got it into his mind that there might have been some intimate connection between the two. Consequently, he punched the front door, went to the rear of the flat, and started throwing objects at the windows. This led Mr Alexander to engage the appellant outside the premises.

11 There was then another physical altercation between the two men. According to the appellant's account, which the Crown accepted as true, Mr Alexander again grabbed the appellant by the throat. The appellant broke away and ran down the street. Mr Alexander chased the appellant until they confronted each other again. In this third and fatal episode of violence, the appellant inflicted three stab wounds to Mr Alexander's body. The appellant then immediately returned to Ms Walton's premises and said to her, 'I think I killed him'. He subsequently waved down a passing motorist, who took Mr Alexander and the appellant to a nearby hospital. Mr Alexander was pronounced dead on arrival.

12 The appellant remained at the hospital and spoke with police. After a short period of prevarication, he admitted to stabbing Mr Alexander, but said that he had acted in self-defence. He was charged with murder and remanded in custody.

13 The appellant was 27 years of age at the time of the killing. He was born in either Cambodia or Thailand and immigrated to Australia with his parents in 1984. The appellant attended school until midway through year 12, when he commenced a hospitality course. Since that time, he had been in relatively continuous employment in the hospitality industry and other fields. He had no prior convictions.

14 Counsel for the appellant sought to challenge the sentencing judge's findings on remorse in two respects: first, that there was a specific error in the finding that the appellant had 'shown some remorse' but that it could not be described as 'considerable'; and second, that the sentencing judge had accorded insufficient weight to the appellant's remorse.

15 His Honour's finding of fact on remorse involved no appellable error. A mistaken finding of fact only amounts to specific error if there is no evidence to support such a finding.[3] On the evidence tendered at the plea, it was open to his Honour to give the appellant's remorse the limited mitigatory weight, and the nuanced complexion, that he did. The degree of remorse is ordinarily difficult to assess, as there is rarely convincing evidence available. It is usually a judge at first instance who is in the best position to evaluate its extent. In the absence of glaring error, an appellate court will rarely interfere with such findings.[4]

16 The burden lay upon the appellant to prove his remorse on the balance of probabilities.[5] Apart from the guilty plea, he relied on other factors to demonstrate his genuine remorse, including testimony from the only witness at the plea to have visited the appellant after his remand and who made the following observations:[6]

And he knows - now he's suffering for it because he can't be out there. I don't know how he would - well quoting him - 'I don't know how I'm going to go on with my life now. I don't know what to do. I don't know how I'm going to face everyone when I (indistinct) get out of here.'

17 As these observations reveal, some of the evidence placed before his Honour was reflective of the appellant's regret at the circumstances in which he found himself, as distinct from remorse for having killed Mr Alexander. A sentencing court should, of course, distinguish between the two.[7] That was the very distinction which the sentencing judge drew:[8]

I accept that you have shown some remorse. I would not describe it as considerable. At times it appears to have been intertwined with not insignificant regret for the position in which you now find yourself. Such regret is, of course, not remorse. Nevertheless, the level of remorse you have shown is a matter which must be taken into account.

18 As to the contention that insufficient weight was given to the appellant's remorse, a complaint about the weight given to a particular sentencing consideration will rarely, of itself, constitute a ground of appeal. As this Court explained in Director of Public Prosecutions v Terrick[9] and again in Scerri v The Queen,[10] the process of synthesis undertaken in the making of the sentencing decision precludes the ascription of quantitative significance to individual factors.[11]

19 A sentencing judge may make a statement along the lines of 'I would attach little weight to remorse' or 'I would attach great weight to the need to protect the community.' But, unless such a statement reveals an error of fact regarding the particular matter - in which case a ground of specific error might be made out - the only way in which this Court can evaluate a complaint about the weight given to a particular consideration is to treat it as a particular of the manifest excess ground. Under that ground, the Court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.[12]

20 Under this ground, it was contended that the sentencing judge erred by failing 'to alert counsel for the appellant to the likelihood that his submission as to remorse would find less than unqualified favour'; and thereby failed to accord him procedural fairness.

21 In Ucar v Nylex, Chernov JA, with whom Warren CJ and Redlich JA agreed, said:[13]

It is uncontroversial that an ingredient of the court's duty to accord procedural fairness involves the giving of 'a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view'. And as McHugh J said in Re Refugee Tribunal; Ex parte Aala:

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.

The appellant relies on various cases, including Ucar, R v Fisher[14] and R v Davey,[15] to submit that the sentencing judge should have alerted defence counsel to 'the likelihood' that the submissions regarding the appellant's remorse would not be accepted in full.

22 In the cases relied upon, 'the risk of an adverse finding being made d[id] not necessarily inhere in the issues to be decided.'[16] In Ucar, for example, a finding of fact had been made which went well beyond the anticipation of the aggrieved party.[17] Humphries v The Queen[18] made the same point in a sentencing context. There, the sentencing judge had treated the appellant offender's drug use as an aggravating factor. In the view of the Court, the offender's counsel could not reasonably have anticipated that this would occur. The risk of such a finding was not inherent in the issues before the Court. That being so, the Court said, the sentencing judge needed to have drawn to counsel's attention the risk that such a finding might be made, so as to afford counsel the opportunity to respond. That not having occurred, there was a breach of natural justice, which vitiated the exercise of the sentencing discretion.

23 The present case was quite different. As almost invariably occurs in the course of a plea hearing, defence counsel had made express submissions about his client's remorse. As with any submission advanced by counsel, it carried the inherent risk that the judge would not be persuaded to accept the submission in full, or would reject it. The risk of adverse, or qualified, findings being made on remorse was inherent in the process.

24 The principles of natural justice do not require decision-makers - whether judicial or administrative - to disclose their thinking processes or views which they may be in the process of forming.[19] As we have said, the evaluation of submissions is inherent in the hearing process. The position would be different if the decision-maker resolved to take into account an adverse matter which had not been the subject of submissions or to depart from a view, expressed in the hearing, that a particular matter would - or would not - be taken into account. In those circumstances, natural justice would ordinarily require that the matter in question be drawn to the attention of the party likely to be adversely affected.

25 This case falls squarely within the former category. Simply because it was submitted at the plea that the appellant was genuinely remorseful did not mean that the sentencing judge was bound to make such a finding, or to provide the appellant with a special opportunity to address his Honour's concerns if he were inclined not to do so. At no time did the sentencing judge suggest that the submission would be given an unqualified reception. We note the following exchange with senior counsel for the appellant which signalled his Honour's concerns about the offender's remorse, at least with respect to the plea of guilty:[20]

COUNSEL: ... Mr Va has taken responsibility or acted responsibly towards his friend and that he has shown almost instantly insight and I ask Your Honour to take them as instances of acknowledgment and remorse.

So far as the plea of guilty goes it was the subject of negotiation and for the plea to the charge that is before the court Mr Va (sic) ought to get the benefit of having pleaded at the earliest time. I appreciate Your Honour's concerns about where the plea goes and legal responsibility lies for the purposes of sentencing but ---

HIS HONOUR: He's still entitled to a utilitarian discount.

COUNSEL: Yes ...

27 The third ground of appeal complains of manifest excess. As stated earlier, for this ground to succeed, the appellant must show that the sentence imposed below was outside the range reasonably open to the sentencing judge.[21]

28 As the High Court made clear in Carroll v The Queen,[22] the contention that a sentence is manifestly excessive (or, on a Crown appeal, manifestly inadequate) is not a contention of specific error by the sentencing judge. Specific error must, of course, be separately identified. The question for the appeal court is whether, having regard to the character of the offending conduct, the offender's circumstances and the applicable sentencing principles (including the key requirement of consistency in sentencing[23]), the sentence arrived at was reasonably open.

29 Particular complaint was, nevertheless, advanced in support of this ground, it being contended that the judge had given insufficient weight to the appellant's

29 remorse, and had erroneously taken into account sentencing practices regarding defensive homicide. We have already dealt with the issue of remorse.

30 As regards defensive homicide, we see no error in his Honour's approach. We would accept that, as a general rule, caution should be exercised when drawing comparisons between defensive homicide, on the one hand, and unlawful and dangerous act manslaughter, on the other. Some conduct amounting to defensive homicide may be less morally culpable than some conduct constituting unlawful and dangerous act manslaughter. For example, the latter conduct may have involved extreme danger and exposed others to a high risk of serious injury; whereas the former conduct may have involved retaliation where at least some basis existed for a need to defend oneself from the risk of really serious injury or death. Of course, it follows that the converse may also hold true.

31 In this case, the sentencing judge made it plain that the appellant was to be sentenced for unlawful and dangerous act manslaughter,[24] and not defensive homicide. He was aided in reaching this conclusion by submissions from senior counsel for the appellant, who emphasised the distinction between these two offences. Counsel pointed out, in particular, that defensive homicide required an intent to kill or cause really serious injury, or at least subjective recklessness with regard to those consequences, neither state of mind being required for unlawful and dangerous act manslaughter:[25]

HIS HONOUR: [A]part from the fact that you have reached an agreement with the Crown, how am I to intellectually conclude that Mr Va didn't have the intention to kill or cause really serious injury when he stabs Mr Alexander three times, one of which is so hard it goes through the bone of the sternum. How do I find the facts that allow that to be satisfactorily explained?

COUNSEL: Within the circumstances that can come about in one of two ways. It can come about in a way where the accused advances on Mr Alexander and stabs into him. It can come about by holding a knife and Mr Alexander, in his regrettably intoxicated state, advancing on Mr Va. The difficulty that your Honour has and the difficulty that the Crown had is that there is no actual basis upon which it could be satisfied to the high degree necessary, under Storey's case, to find the high intent, and as a consequence that the plea was accepted.

In that connection, the reference to defensive homicide was instructive to the extent that excessive self-defence and, to a lesser extent, provocation, were both relevant considerations.

33 In the end, however, we have concluded that the sentence ultimately arrived at did not properly reflect the appellant's moral culpability, which had to be viewed as materially reduced in the light of the provocation and threat of violence to which he was subject, and the defensive character of the offending conduct.

34 A defendant acting in excessive self-defence may be entitled to mitigation in sentencing. Prior to the abolition of the defence of provocation, perpetrators of homicides involving excessive self-defence were commonly convicted of manslaughter by provocation.[26] This reflected a recognition of an overlap between the defences of provocation and self defence.[27] In Van Den Hoek v The Queen, Mason J said:[28]

No doubt it is true to say that primarily anger is a feature of provocation and fear a feature of self-defence. But it is too much to say that fear caused by an act of provocation cannot give rise to a defence of provocation.

35 Provocation has been treated as a (potentially) mitigating circumstance in sentencing both before[29] and after[30] the abolition of the defence of provocation. While it is not necessarily a mitigating factor,[31] it can function as such in various circumstances:[32]

[T]he element of provocation is not to be measured in any prescribed way, as it would be in answer to a charge of murder. It may be conceded that even where a response to a provocation exceeds that which may fairly be expected, the sentencing discretion may be tempered by an understanding of the reasons which led to the committing of serious criminal behaviour.

36 Excessive self-defence may be a relevant consideration in the sentencing process, either in its own right or under cover of provocation.[33] This is especially likely to be the case where the offending conduct is born of fear rather than anger. The case law generally rejects reliance on provocation as a mitigating consideration where the accused was driven to a loss of self-control due to anger - particularly in domestic or spousal contexts.[34]

37 The appellant by his plea conceded that his retaliation was excessive and entirely disproportionate to any conduct on the part of Mr Alexander. There were, however, extenuating factors present, which influenced the offending conduct and which resulted in the appellant acting defensively out of fear of Mr Alexander.

38 As was frankly conceded by counsel who appeared for the Crown on the appeal to this Court, the appellant's version of events, as given to the police in his record of interview, was largely accepted on the plea, and should be accepted by this Court. That account was replete with allusions to the defensive and provoked nature of the offending conduct. For example, Mr Alexander appears to have instigated each of the three episodes of violence with the appellant. In the first incident, Mr Alexander punched the appellant first and then choked him. In the second incident, Mr Alexander walked out of Ms Walton's flat to confront the appellant in the street and again choked him. In relation to the third and fatal incident, the Crown acknowledged that it had been Mr Alexander who had 'chased' the appellant along the street, resulting in the offending conduct.

39 The appellant's reactions to these incidents also appear to have been consistent with his having been frightened of Mr Alexander. It is true that after the first incident the appellant grabbed hold of three knives, but he left the flat without brandishing them to challenge, threaten or confront Mr Alexander. After the second incident, the appellant was chased by Mr Alexander, indicating he had fled from the preceding altercation. The evidence was that Mr Alexander was a bigger man than the appellant. Ms Walton had stated in her evidence at the committal that she was concerned about Mr Alexander's aggression before he engaged the appellant on the second occasion. It was submitted at the plea that, at around the same time, another resident of the flats had also noted that Mr Alexander was angry and aggressive. Toxicology reports suggested that Mr Alexander had a high blood alcohol and cannabis content.

40 In his record of interview the appellant stated 'I was getting throttled, I was getting hit and then he came in and I stabbed him.'[35] The appellant repeated these claims of self-defence to the motorist who took him and Mr Alexander to hospital. Evidence from the police surgeon indicated that the appellant had suffered physical injuries, including bruising to the neck, consistent with blunt trauma as distinct from the play fighting he had engaged in previously on the day. Senior counsel for the appellant at the plea submitted that at least two of the wounds inflicted on Mr Alexander were consistent with the taller man having 'come in to confront [the appellant] with his arms up'. Counsel also pointed out that there were no defensive wounds on Mr Alexander's hands to suggest that he had been confronted and was therefore defending himself.

41 The Crown effectively conceded during the plea that the appellant had been defending himself and was 'being throttled': [36]

HIS HONOUR: On what basis am I to sentence this as a manslaughter?

COUNSEL: Your Honour, on the basis that the Crown can't say that he wasn't defending himself, wasn't being throttled and hadn't been in a fight with him. He had left the premises, and after (sic) man had gone after him.

HIS HONOUR: That sounds like defensive homicide.

COUNSEL: It could have been and we had some discussion as to which was more appropriate, Your Honour. It was eventually accepted. The offer was put to manslaughter and that was accepted, but it is very similar to a defensive homicide and indeed I think my friend in his materials has referred you to Edwards. I advised him in relation to Edwards, drew it to his attention, Your Honour.

It's very close and to us it is a manslaughter of the type that could have as easily been a defensive homicide but we accepted manslaughter.

In short, the Crown acknowledged that it could not disprove the appellant's contention that he was facing an ongoing threat of serious violence, and accepted that he was to be sentenced on that basis.

42 As we have said, the Crown did not challenge the appellant's version of events. Nor did the sentencing judge make any contrary findings of fact. In the circumstances, it was necessary for the judge when assessing the gravity of the offence, and the appellant's culpability, to address these issues of self-defence and provocation. Even allowing for the entirely disproportionate violence used by the appellant towards Mr Alexander, the assessment of his criminality needed to reflect that fact that he had already been the subject of a violent assault, and was responding to a real threat of further violence.

43 We should add that the sentencing ranges proffered on the plea, by the Crown and the appellant respectively, fell far short of the expectations set by this Court in R v MacNeil-Brown.[37] The range furnished by the prosecution was 'between ten to eleven years as the head sentence and eight to nine years as a minimum sentence.'[38] Senior counsel for the appellant submitted that 'the range in this case is more appropriately eight to nine years with a minimum of five and a half to six years.'[39] Nothing was said by way of explanation or justification of either submission.

44 Two points need to be made. First, the Crown's obligation to assist a sentencing judge with a submission on range is not discharged merely by nominating the top and bottom of the range. Like any other submission directed at the making of a discretionary judgment, the Crown's submission on range must identify how the relevant features of the case, and the relevant sentencing principles, bear upon the exercise of the discretion.[40] As the majority in R v MacNeil-Brown[41] (Maxwell P, Vincent and Redlich JJA) said:

The range thus nominated must be based on a clearly-articulated view of the gravity of the offence, the relevant sentencing principles and practices, and relevant aggravating or mitigating factors. All of these matters should be referred to in the course of the submission, so that the court understands how the Crown contends that the relevant matters should be brought to bear.

45 Lest it be thought that this is an unduly burdensome requirement, we would point out that the discipline of articulating the basis of the range submission, by reference to the aggravating and mitigating circumstances of the case and to current sentencing practices so far as applicable, is likely to ensure that the submission is appropriate to the case and - hence - of maximum assistance to the judge. The function of Crown submissions on sentencing range is to promote consistency of sentencing and reduce the risk of appellable error. An ill-judged Crown submission on range can have exactly the opposite effect, and may lead to sentencing error where otherwise there would have been none.[42] For the reasons we have given, the Crown submission on range was erroneous and is likely to have contributed to the imposition of what we have concluded was an excessive sentence.

46 The second point is that a Crown submission of the kind made in this case identified a purported 'range' the upper and lower limits of which were separated by 12 months. The narrower the band, the more nearly the submission resembles one urging the imposition of a particular sentence. It has never been accepted in this State that the Crown can, or should, make such a submission, and nothing said in MacNeil-Brown qualified that long-established principle.

47 As the Court explained in that case, the concept of 'range' denotes the area within which reasonable minds can differ as to the appropriate sentence in the particular case.[43] With the exception of cases where the sentence of imprisonment is likely to be under three years, a narrow band of six or even 12 months could hardly be said to represent the range of reasonable differences of opinion.

48 It was not suggested on appeal that the sentencing judge otherwise failed to take into account, or give sufficient regard to matters personal to the appellant. Accordingly, having regard to his Honour's consideration of the relevant circumstances, and in light of our reasons above, we would sentence the appellant to a term of nine years' imprisonment. We would order that the appellant serve a minimum period of six years before he is eligible for parole.

49 Pursuant to s 6AAA of the Sentencing Act 1991, if the appellant had not pleaded guilty, we declare that he would have been sentenced to 11 years and six months' imprisonment, with a minimum term of eight years' imprisonment.

[1] DPP v Va [2010] VSC 311.

[2] See especially DPP v Va [2010] VSC 311, [1]-[13].

[3] McBeth v The Queen [2009] NSWCCA 235, [30] (McCallum J, with McClellan CJ at CL and Hidden J agreeing); R v O'Donoghue (1988) 34 A Crim R 397, 401 (Hunt J, with Carruthers and Wood JJ agreeing); Hopley v The Queen [2008] NSWCCA 105, [28] (Johnson J, with Beazley JA and McCallum J agreeing).

[4] R v Whyte [2004] VSCA 5; (2004) 7 VR 397, 403 (Winneke P, with Bongiorno and O'Bryan AJJA agreeing); Cooper v The Queen [1998] VSCA 39; (1998) 103 A Crim R 51, 55 (Winneke P with Tadgell JA agreeing). See also R v Fraser [2004] VSCA 147, [17] (Batt, with Chernov and Vincent JJA agreeing).

[5] Carroll v The Queen [2011] VSCA 150, [46] (Maxwell P, with Buchanan JA agreeing); R v Storey (1998) 1 VR 359, 369 (Winneke P, Brooking and Hayne JJA and Southwell AJA). See also R v Margach [2008] VSC 255, [49] (Nettle JA).

[6] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 34.

[7] Cooper v The Queen [1998] VSCA 39; (1998) 103 A Crim R 51, 55 (Winneke P with Tadgell JA agreeing).

[8] DPP v Va [2010] VSC 311, [20] (Beach J).

[9] [2009] VSCA 220; (2009) 24 VR 457, 459 [5].

[10] [2011] VSCA 287, [22]-[24], [30].

[11] See also Mamonitis v The Queen [2011] VSCA 370, [8].

[12] Clarkson v The Queen [2011] VSCA 157, [89].

[13] [2007] VSCA 181; (2007) 17 VR 492, [22] (citations omitted) ('Ucar').

[14] [2009] VSCA 100; (2009) 22 VR 343.

[15] [2010] VSCA 346.

[16] Ucar [2007] VSCA 181; (2007) 17 VR 492, [43] (Chernov JA, with Warren CJ and Redlich JA agreeing); Fisher [2009] VSCA 100; (2009) 22 VR 343, [65] (Redlich and Dodds-Streeton JJA); Davey [2010] VSCA 346, [28] (Redlich JA in dissent); contra [5] (Neave JA) and [89], [92] (Hollingwoth AJA).

[17] See generally [2007] VSCA 181; (2007) 17 VR 492 (Chernov JA, with Warren CJ and Redlich JA agreeing).

[18] [2010] VSCA 161, [10].

[19] See, for example, Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590-1 and the cases there cited.

[20] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 26 (emphasis added).

[21] See, for example, Sarvak v The Queen [2011] VSCA 300, [23] (Redlich JA, with Neave and Hansen JJA agreeing); DPP v Karazisis [2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA, with Warren CJ and Maxwell P agreeing).

[22] [2009] HCA 13; (2009) 83 ALJR 579, 581.

[23] As to which see Green v The Queen [2011] HCA 49, [28] (French CJ, Crennan and Kiefel JJ).

[24] DPP v Va [2010] VSC 311, [14] (Beach J).

[25] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 20.

[26] R v Stavreski [2004] VSC 16; (2004) 145 A Crim R 44 , 48 [16] (Redlich J) ('Stavreski').

[27] Ibid [17] (Redlich J). See also Ross on Crime (3rd ed., 2007) [19.960].

[28] [1986] HCA 76; (1986) 161 CLR 158, 167 (Gibbs CJ, Wilson, Brennan and Deane JJ agreeing in the result).

[29] See, for example, R v Alexander (1994) 78 A Crim R 141, 144 (Hunt CJ at CL); Stavreski (2004) 145 Crim R 44, 49.

[30] Felicite v The Queen [2011] VSCA 274 ('Felicite'); Victorian Law Reform Commission, Defences to Homicide, Final Report No 94 (2004) [2.31]-[2.33], [7.2].

[31] Felicite [2011] VSCA 274.

[32] R v Aboujaber (Unreported, Supreme Court of Victoria, Court of Appeal, Tadgell, Ormiston and Kenny JJA, 9 October 1997) 9-10 (Ormiston JA, with Kenny JA agreeing) (citations omitted).

[33] See, for example, Stavreski (2004) 145 Crim R 44.

[34] Felicite [2011] VSCA 274, [32]-[35] and the authorities cited therein (Redlich JA, with Harper JA and Robson AJA agreeing).

[35] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 23.

[36] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 16.

[37] [2008] VSCA 190; (2008) 20 VR 677 ('MacNeil-Brown').

[38] Transcript of Proceedings, DPP v Va (Supreme Court of Victoria, Justice Beach, 23 June 2010) 17.

[40] W C B v The Queen [2010] VSCA 230, [52].

[41] [2008] VSCA 190; (2008) 20 VR 677, 681 [12].

[42] Bourne v The Queen [2011] VSCA 159, [22].

[43] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, [6]-[10].