Babic v The Queen

[2010] VSCA 198

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 713 of 2008

FRANK BABIC

v

THE QUEEN

---

JUDGES	ASHLEY, NEAVE and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	25 May and 3 June 2010
DATE OF JUDGMENT	17 August 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 198
JUDGMENT APPEALED FROM	[2008] VSC 218 (King J)

---

CRIMINAL LAW – Conviction – Application for leave to appeal – Murder – Self defence – Defensive homicide –Whether common law self defence abolished – Effect of amendments introduced by Crimes (Homicide) Act 2005 – Whether jury directions as to defensive homicide incorrect and deprived applicant of conviction of defensive homicide – Interpretation of Crimes Act 1958, ss 9AC, 9AD – Whether judge failed to relate applicant’s intoxication to issue of intent – Whether judge erred in referring to ‘imminent threat’ – Application refused.

CRIMINAL LAW – Sentence – Murder – Whether judge gave insufficient weight to applicant’s age in setting non-parole period – Application refused.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Balmer and Associates Pty
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

1. Neave and Harper JJA, whose reasons for judgment I have had the advantage of reading in draft, have set out the general circumstances of this proceeding, the main arguments of counsel, relevant passages from the judge’s charge, and the grounds of appeal.  I need not, in the circumstances, revisit those matters.

1. I agree with their Honours, for the reasons which follow, that the applications for leave to appeal against conviction and sentence should be refused. 

1. Concerning grounds 4 and 8 on the conviction application, and the application for leave to appeal against sentence, I respectfully agree with what their Honours have said and have nothing to add.

Conviction application;  Grounds 1 and 3

1. Grounds 1 and 3 are interrelated. But each of them requires discrete consideration. Ground 1 contends that the judge erred by not leaving common law self-defence to the jury, but only the defence in s 9AC of the Crimes Act1958.  Ground 3 asserts that the judge misdirected the jury by directing it, in effect, that the starting point for consideration of ‘defensive homicide’ was a belief held by the applicant. 

Ground 1

1. The main argument for the applicant upon ground 1 was that the defence created by s 9AC is more restrictive than common law self-defence. For that reason, the section should not be read to exclude common law self-defence except if there were plain words; and here there were none.Counsel acknowledged that there would be ambiguities whichever way s 9AC was read.

1. In my opinion s 9AC does operate to exclude common law self-defence in the case of murder. That is so for these reasons, which focus upon the words of the statute.

1. First, it is too simplistic to say that the statutory defence is more restrictive than the common law defence.  In some ways, it is more restrictive.…