Director of Public Prosecutions v Bandali Michael Debs and Jason Joseph Roberts
[2002] VSC 569
•12 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1527 of 2001
| Director of Public Prosecutions |
| v |
| Bandali Michael Debs and Jason Joseph Roberts |
Ruling No. 29
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 12 December 2002 | |
CASE MAY BE CITED AS: | DPP v Bandali Michael Debs and Jason Joseph Roberts | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 569 | |
---
Criminal law and procedure – murder – self defence – not arising on evidence.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J.W. Rapke QC with Mr P.B. Kidd and Mr J.J. Serong | OPP |
| For the accused Debs | Mr P.C. Dane QC | Victoria Legal Aid |
| For the accused Roberts | Mr I.D. Hill QC | Lethbridges |
HIS HONOUR:
Barwick, C.J. In Pemble v R[1] at 117 stated:
"Whatever course counsel may seek to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part".
With every respect, I wholly agree with the learned Chief Justice.
[1](1971) 124 CLR.
In the present case during his final address, although not referred to in the s.13 response, senior counsel for the first accused, Mr Dane, raised with the jury the possibility of self-defence arising in this case in relation to his client. Mr Hill, learned counsel for the second accused, did not raise the matter in relation to his client.
Although in submission to me Mr Dane did not cite authority, the question is, as Ormiston, J.A. stated at 566 in R v Kear[2], whether there is any evidence from which the jury might infer that the accused acted in self-defence: see also Phillips, J.A. at 574. Ormiston, J.A. stated at 566:
"It is clear, particularly from a reported authority dealing with the possible defence of provocation, that it is not necessary that direct evidence be given of the accused's belief as to circumstances giving rise to a defence for a conclusion to be reached that the evidence is such as to require the jury to be charged in relation to a defence of that kind ...".
Ormiston, J.A. proceeded as to matters raising self-defence:
"In order to see if there is any such evidence, one may look not only to the direct evidence but also to whether a circumstantial case may fairly be made out to support the claimed defence".
[2](1997) 2 VR 555.
In relation to provocation, but the principle equally applies to self-defence, a like criterion has been articulated in Van Den Hoek v R[3] and Shea v R[4]. I proceed upon the principles clearly stated by Ormiston, J.A. in Kear.
[3](1986) 161 CLR 158.
[4](1988) 33 A.Crim.R. 394.
I refer next to Thomas[5] especially at 272-273 per Hunt, C.J. at C.L. and in whose judgment Grove and James JJ. agreed. That authority establishes, as indeed the previous cases have also accommodated, that the circumstance that the deceased's actions were lawful does not of itself necessarily preclude self-defence arising: see in particular Zecevic v R[6] in the judgment of Wilson, Dawson and Toohey, JJ. at 663-664 (and in which Mason, C.J. agreed at 654), contra Brennan, J. (as then he was) at 666 and Deane, J. at 682.
[5](1993) 65 A.Crim.R. 269.
[6](1987) 162 CLR 645.
The basal principle was helpfully stated in clear form in Zecevic, namely that the prosecution must prove beyond reasonable doubt that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did.
In the present case I consider that there is no evidence whatsoever upon which self-defence, and particularly the matter of reasonable grounds, can be said to arise in this case.
In his final address Mr Dane put what he called "a hypothetical" to the jury at pp.7088-7091 in which he put that "maybe" in defence of himself, or of his future son-in-law who was acting on a frolic of his own, Mr Debs acted in self-defence. A different hypothesis was put by Mr Dane to me in submissions in the absence of the jury, namely that Mr Roberts was fleeing the scene and that Senior Constable Miller fired in order to call upon Mr Roberts not to flee and Mr Debs acted in self-defence in those circumstances.
Mr Dane submitted to me that as "we don't know the order of events" that that hypothesis is open on the evidence led. I consider there is a logical fallacy in Mr Dane's submission. He is correct in saying that the evidence does not establish with finality the order of events. But that vacuum cannot be transformed into an evidentiary premise for his hypothesis. The evidential basis simply is lacking.
In my view, in this case, there is neither evidence, nor inference which can properly be said might arise on the evidence, raising the question of self defence. Mr Dane's "hypothetical" to the jury (T.7088 l.11) and his "hypothesis" to me (T.7410 l.21) is not even speculation. It is simply a novella, a script created from the Bar table. Indeed in his submission, after a four month trial, Mr Dane frankly said to me: "I am just doing this as I am standing here, Your Honour." (T.7410).
If either accused had given evidence remotely like anything Mr Dane posited in the presence or absence of the jury then, of course, the question of the raising of self defence would have to be considered. But there is no evidence before this jury which conceivably supports self-defence, bearing in mind the prudential inclusory principles enunciated by Barwick, C.J. in Pemble and Ormiston, J.A. in Kear and which I have stated.
For those reasons I shall direct the jury that self-defence does not arise in this case.
-----
2
0