Director of Public Prosecutions v Manuel
[2020] VSC 655
•6 October 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0046
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ALEXANDER PETER HIKOWAI MANUEL | Accused |
---
JUDGE: | Champion J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 August 2020 |
DATE OF RULING: | 6 October 2020 |
CASE MAY BE CITED AS: | DPP v Manuel |
MEDIUM NEUTRAL CITATION: | [2020] VSC 655 |
---
CRIMINAL LAW – Ruling – Advanced ruling s 192A Criminal Procedure Act 2009 – Charge of murder – Charge of aggravated carjacking – Accused claims he was acting in self-defence – Whether accused’s fatal conduct in response to lawful conduct of deceased – Applicability and practical application of s 322L of the Crimes Act 1958 (Vic) – Self-defence open –The determination of the applicability of s 322L should await the completion of all the evidence in the trial – Crime Act 1958, ss 322I, 322K, 322L.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Rochford with Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr J. Kelly with Ms C. Hollingworth | Leanne Warren and Associates |
HIS HONOUR:
Introduction
Alexander Peter Hikowai Manuel (‘the accused’) is charged with the murder of Ricky John Thompson, (‘the deceased’), by stabbing him once to the head. It is conceded that the accused stabbed the deceased, thereby causing his death.
This ruling addresses the applicability and practical application of s 322L of the Crimes Act 1958 (Vic) (‘the Act’). The prosecution has indicated that should the accused raise self-defence, the prosecution will rely on s 322L of the Act, arguing that the victim was engaged in lawful conduct to prevent the theft or attempted theft of his motor vehicle. Thus it is submitted by the prosecution that the accused cannot raise self-defence to the charge of murder.
The Indictment charges:
Charge 1 – murder; and
Charge 2 – aggravated carjacking.[1]
[1]Contrary to s 79A of the Crimes Act 1958.
In the above circumstances the prosecution seeks an advanced ruling[2] from this Court prior to empanelling a jury that self-defence cannot be relied on by the accused. The accused opposes an advanced ruling, submitting that it should not be provided until the evidence in the trial is completed.
[2]Pursuant to s 192A of the Criminal Procedure Act 2009.
The prosecution case
On the evening of Monday 17 June 2019, the accused was at the apartment of a friend, Kristy Avdulla. While he was there, it is alleged that he took a small sharp knife from a knife block. The prosecution alleges he kept it in his possession, it being the knife that later caused the fatal wound to the deceased.
Later, the accused and Avdulla left the apartment in a black Holden Commodore and picked up two friends, Peter Carr and Rebecca Spencer from their home in Carrum Downs. The Commodore did not belong to Avdulla or the accused.
At approximately 2.15am the following morning, the accused, with Avdulla, Carr and Spencer, arrived at the Chelsea Heights Hotel with the intention of playing the pokies. At approximately 2.36am, Brett Young arrived at the hotel. He began to play the poker machines and noticed Carr and Spencer, who were acquaintances.
At approximately 2.43am, the deceased arrived at the hotel, driving a silver BMW sedan. When the deceased walked into the hotel, Carr said to Young in a joking voice “here’s trouble”. Young spoke to the deceased briefly and then continued to play the pokies.
A short time later, Avdulla and the accused were seen in the gaming room by Young. Young did not know Avdulla but spoke with the accused, whom he has known for approximately 15 years through mutual friends.
At 3.11am, CCTV captured the accused with the deceased in the smokers’ lounge with Carr, Spencer and Young. The accused was described as being very “in your face” with Young and the deceased. After a short time, Carr and Spencer returned inside, followed by Young and the deceased. The deceased played the poker machines while sitting at the neighbouring machine to Young.
The accused came up behind the deceased and Young at the poker machines and asked them both for a lift. Both the deceased and Young declined the request, to which the accused replied, “so what am I a skunk?”. The deceased replied, “no one said that”, but the accused repeated “so what, I’m skunk?”.
At this point, Avdulla came over and asked the accused if he was staying or going, saying “let’s go”. They then walked out the front of the hotel to the carpark. At the same time, the deceased walked out of the hotel, and went to his car which was parked adjacent to Avdulla’s car.
At approximately the same time the deceased went to the passenger side of his car to retrieve a phone charger, the accused opened the driver’s side door and got into the driver’s seat of the deceased’s car. The deceased then went around to the driver’s side door which had remained open and said to the accused “get out of the car”, “get the fuck out of my car”. The accused replied, “no, fuck off”. The argument continued for about a minute, with the accused demanding that the deceased give him the keys to the car.
As the argument continued, Avdulla was in the front seat of the Commodore, with Carr and Spencer in the back seat. Young was in between the Commodore and the deceased’s car. Carr got out of the Commodore and stood near the right shoulder of the deceased.
The accused got out of the car and the argument continued. The deceased threw his keys and they landed on the ground near the front driver’s side wheel. The attitude of the accused towards the deceased was allegedly very aggressive and hostile.
It is at this time that the argument turned into a physical altercation. The accused threw a punch at the deceased’s head but it did not connect. He then swung another punch which hit the deceased in the right arm. The deceased threw a couple of punches in retaliation but they did not connect. The deceased then crouched over as if he was going to make a rugby tackle.
It is at this point that the accused allegedly reached to the back of his pants and grabbed something in his right hand. He then swung a roundhouse punch with his right hand which connected with the deceased’s head. The deceased immediately fell to the ground with a pool of blood forming around his head.
The prosecution case is that the accused who has still in possession of the knife from the apartment, took hold of the knife and stabbed the deceased to his head.
The accused rolled the deceased over and began emptying his pockets. Avdulla saw the accused empty the deceased’s pockets and take what appeared to be the deceased’s wallet and a small bag of ‘ice’.
The accused was allegedly heard to yell, “where the fuck are the keys?”. Avdulla told him that they were near the front tyre. The accused found the keys and returned to the driver’s seat of the BMW, saying “Fuckin move him”. He then shouted, “I can’t start the fucking car!”.
Avdulla showed the accused how to start the car and he then drove away in the deceased’s car, manoeuvring it around his body which was still on the ground. Due to the position of the body, the accused had to reverse the car, passing within 2-3 metres of it.
Carr went to the driver’s side of the black Commodore. Avdulla went to the front passenger seat and they to drove away following the accused in the deceased’s car which was driven at high speed and without the headlights on.
Young ran to the security guard at the front door of the hotel and yelled for him to call an ambulance. The security guard called 000 and went out to the carpark, finding the deceased bleeding heavily and struggling on the ground.
Police and ambulances soon arrived, with paramedics finding the deceased unconscious at 3.45am, but still alive. He was immediately transported to the Alfred Hospital. His injuries were assessed as being non-survivable and he was declared deceased at 6.50pm on 18 June 2019.
An autopsy revealed that the deceased had suffered a single stab wound through the left temporal lobe of his head.
On 4 July 2019 the accused was apprehended by police. He was informed he was under arrest and had been charged with murder. In response he said: “Murder! I punched on with him. He pulled a knife on me. He’s bigger than me, I’m only 55kg. I’m never going to see my daughter. I’m going to get deported”. The accused also told arresting police that he had been consuming drugs during that evening. He appeared to be drug affected as he was ‘ranting, crying had wide open eyes and was jittery’. The accused was transported to the Wonthaggi police station and it was determined he was unfit for interview due to his drug-affected state.
It appears the accused was never formally interviewed.
The defence response
As stated in his Defence Response to the Prosecution Opening, the accused proposes to enter pleas of not guilty to both charges on the Indictment.
Further, the accused denies ever using, taking or possessing a knife from Avdulla’s flat. However, he concedes that the deceased died as a result of a single stab wound to the head, a fatal injury caused by him. He denies he was aggressive towards the deceased, and asserts he did not punch or hit him in the carpark. Rather, he asserts the deceased was aggressive towards him and punched and assaulted him a number of times. Accordingly, the defence case is that the accused acted in self-defence from the following:
(a) The deceased throwing punches at him;
(b) The deceased spear tackling him; and
(c) The deceased having stabbed him in the hand.
It is plainly apparent that the claim of acting in self-defence is expressly raised in the Defence Response. It is therefore to be expected that the trial will be conducted on that basis. It is worth mentioning that the accused advances a version of the events that in some respects is materially different from a number of the accounts of witnesses present who allegedly saw the events taking place.
The applicable law
The legislative provisions that apply to the matters now under consideration are as follows.
Section 192A of the Criminal Procedure Act 2009 (the ‘CPA’) provides:
192A Advance rulings and findings
Where a question arises in any proceedings, being a question about –
(a)the admissibility or use of evidence proposed to be adduced; or
(b)the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or
(c)the giving of leave, permission or direction under section 192 –
the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings
The relevant provisions of the Act are:
322K Self Defence
(1)A person is not guilty of an offence is 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.
322I Onus of proof
(1)The accused has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, duress or sudden or extraordinary emergency (as the case may be).
(2)If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary emergency (as the case may be).
322L 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.
The prosecution submissions
As above, the prosecution proposes to rely on s 322L of the Act, arguing that the deceased was engaged in lawful conduct to prevent the theft or attempted theft of his motor car.
In support of its intention the prosecution set out in Further and Better Particulars of the Prosecution Opening for Trial, dated 23 April 2020, that:
(a) The accused got into the driver’s seat of the deceased’s car;
(b) The deceased told him to get out of the car, thereby making a lawful demand for the return of property that the accused was stealing or attempting to steal;
(c) The accused refused to release the property and demanded the deceased’s car keys;
(d) The deceased was lawfully entitled to resist the attempts by the accused to steal his property;
(e) The accused got out of the car and his behaviour was aggressive and hostile towards the deceased, throwing punches at him and stabbing him; and
(f) After the fatal stabbing, the accused took the deceased’s car keys, drove off in the deceased’s car, thereby stealing it.
The prosecution submits that s 322K of the Act states the test for self-defence, and has expressly abolished self-defence at common law. Further, as a consequence of s 322L, the prosecution submits that the accused cannot rely on self-defence at his trial for the murder of the deceased as he was responding to the lawful conduct of the deceased, which at the time he knew to be lawful.
The prosecution addressed the origins of s 322L which followed recommendations made by the Victorian Law Reform Commission’s 2004 Report on “Defences to Homicide”. The prosecution noted the common law test for self-defence as set down by the High Court in Zecevic v DPP (‘Zecevic’),[3] as noted by the VLRC that:
….an accused person who is responding to force which he or she know to be lawful is not acting in self-defence, and should therefore not be permitted to argue self-defence. In doing so we recognise, as the High Court did in Zecevic v Director of Public Prosecutions (Vic) that is it unlikely an attack which is lawful will ever provide reasonable grounds for a resort to the use of violence.[4]
[3](1987) 162 CLR 645.
[4]Victorian Law Reform Commission, Defences to Homicide Final Report, No 94 (2004) 88.
The prosecution submits that s 322L follows directly from the common law definition of self-defence as not being available to an accused who responds to the lawful conduct of another, that he knows to be lawful.
The prosecution emphasises the statement by Brennan J, who agreed with Wilson, Dean and Toohey JJ, in holding that:
The lawful application of force, even deadly force, does not confer on the person to whom it is applied any legal authority, justification or excuse to resist it. It follows a defence of self-defence is not available when the force against which the accused defends himself is lawfully applied.[5]
[5](1987) 162 CLR 645, 666.
Further, Wilson, Dean and Toohey JJ held that:
The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist… he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.[6]
[6]Ibid at 663-4.
The prosecution argues in the present case it is open for the jury to conclude the accused man was attempting to steal the deceased’s car. He had asked for a lift from the deceased which had been refused. Following the refusal, he entered the deceased’s car, and demanded the keys. It is argued that the accused created the situation to which the deceased then responded. The prosecution submits that the events leading to the fatal stabbing should not be separated into two parts, the first being the argument about the car keys, and the second being the physical altercation that developed between the accused and the deceased beside the car. The prosecution case is that there is no separation of the later fatal events from the accused’s original intention to steal the car, that all the events are a connected series comprising of one transaction. It is submitted there is no intervening period of time, or intervening event, which changed the course of what was happening, the events begun with an attempt to steal and that objective was carried out when the car was stolen and driven away.
Thus it is submitted there is no intervening period of time or intervening event that interrupted the accused assuming the rights of ownership over the deceased’s vehicle. In this regard the prosecution points to the evidence of Young who describes that when requested by the deceased to get out of the car, the accused was aggressive and very hostile. Young describes in his statement how the accused got up out of the driver’s seat, and that he saw the accused ‘swing’ a right hand punch at the deceased’s head, which did not connect. However, it should be noted that the prosecution concedes that in his committal evidence, Young said he could not remember anything about the incident, purposely blocking it out with the use of drugs.[7]
[7]See committal evidence of Young at pp 518-9.
Accordingly, the prosecution submits that a person who is responding to force that they knew to be lawful is not acting in self-defence and should not be permitted to argue self-defence.
The prosecution submits that the issue of whether s 322L applies should be decided prior to the empanelment of the jury via an advance ruling pursuant to s 192A of the CPA. It is submitted that this issue should be determined prior to the jury trial commencing because the accused cannot argue self-defence if it is bound to fail.
The prosecution submits that the situation under consideration is governed by a public policy piece of legislation, intended to stop accused persons from availing themselves of self-defence in these very factual circumstances. It is submitted that it would be totally artificial and wrong to allow this case to proceed on the basis of self-defence being available, but with the court later ruling the defence is not open.
It is noted by the prosecution that the two eye-witnesses, Carr and Spencer, were expected to have attended pre-trial examinations pursuant to 198B of the CPA but were never be located. Neither witness has been cross-examined as they did not give evidence at the committal hearing. Nevertheless, it was submitted that although they are eyewitnesses to the events that occurred, it was not anticipated by the prosecution that they would significantly change their evidence about what they observed.
The prosecution takes issue with the claim that the deceased had a knife and attacked the accused when he exited the car. It was pointed out that after the deceased fell to the ground no weapon was located. Further, it is submitted that it is unlikely that any cross-examination of Carr and Spencer would change what took place between the accused and the deceased in that regard. On that basis, it was submitted that the issue before the court can be determined before evidence is led from either witness.
In requesting an advance ruling, the prosecution submitted that it would be both artificial and asking too much of the jury to engage in the mental gymnastics of sitting through a whole trial, hearing cross examination about self-defence, and then at the completion of the evidence to be told it was being withdrawn from consideration.
The defence submissions
The accused filed written submissions as to the interpretation and applicability of s 322L of the Act. It was submitted that an examination of the evidence demonstrates that s 322L does not have application and the question of whether the accused was acting in self-defence when he stabbed the deceased should be left to the jury. Alternatively, the accused notes that if s 322L is found to be applicable, then the trial judge can refuse to leave self-defence to the jury. It was submitted that such a course, if it arises, should not take place until after all the evidence is completed.
The accused submits that the Court should follow the approach taken in DPP v McDowell (‘McDowell’).[8] The case concerned a home invasion by two men, where the victim pre-emptively attacked the invaders by using a knife. However, the victim was overcome and soon after killed by strangulation. The accused argued that the deceased had acted unlawfully by engaging in a pre-emptive attack when he had no knowledge of who was coming into his room, and what their purpose was.
[8](Ruling No. 1) [2019] VSC 341.
After both the close of the prosecution case, and the accused having announced he would not give evidence, a discussion took place regarding the appropriate directions to be given pursuant to the Jury Directions Act. Beale J heard argument and ruled in relation to the application of s 322L of the Act. The accused notes that this ruling occurred after the court was seized of all of the evidence supportive of self-defence or otherwise in the trial. Beale J decided that the relevant question he should ask was, “Could a jury find or consider that there was a reasonable possibility that the deceased’s conduct was unlawful?”.[9] His Honour answered that question in the negative, given the particular circumstances of that case. He concluded that the deceased could interpret the behaviour of the two accused as menacing and that his pre-emptive strike was therefore a reasonable response.
[9]Ibid [9].
In opposing the prosecution contention that the evidence in the present case demonstrates that s 322L of the Act is not applicable, the accused submits that on the basis of the approach taken in McDowell[10] the issue of whether the accused acted in self-defence when he stabbed the deceased should be left to the jury at this stage, and not withheld from the jury from the beginning of the trial, and onwards.
[10][2019] VSC 341.
The accused submits that self-defence is not only raised on the evidence of Carr and Spencer, but also comes from the accused himself as evidenced by statements he made to arresting police officers, thus satisfying the onus of proof required under s 322I of the Act.
Furthermore, the accused rejects the inference sought to be drawn by the prosecution that he was engaged in aggravated carjacking. The accused points to the statement of Young who it is argued, does not support that the accused was making a demand for the deceased’s keys.
The accused submits that an alternative view of the evidence is that he drove away in the deceased’s car after the fatal altercation in a panic, rather than in completion of an episode of carjacking. In support, the accused makes reference to the fact that the accused took dramatic evasive action to avoid the injuring, or further injuring the deceased as he lay next to the vehicle when he drove it away.
With reference to the prosecution’s contention that s 332L applies as a result of the accused being engaged in an aggravated carjacking, the accused points to Avdulla as a witness who saw the fatal assault and heard the accused demanding the car keys shortly before the fatal events. However, it was noted that the context in which her police statement was taken causes the accused concern.
Furthermore, it is argued that even if the accused was making a demand for the keys, that would not necessarily support the prosecution’s contention that what was occurring was an aggravated carjacking. Thus it is submitted that the fact the accused obtained the car keys and drove away in the car is equally consistent with him panicking after having struck the deceased, when he was on the ground. Overall, the accused argues that the circumstances are not a clear aggravated carjacking and that an equally open hypothesis is a panicked flight on the part of the accused to remove himself from the situation.
The accused submits in order for s 322L to apply, the prosecution must prove the accused knew that any violence that may have been perpetrated on him by the deceased was lawful. If the prosecution cannot make good its contention that this is an aggravated carjacking, and that the resistance the deceased displayed to the accused is lawful, it is submitted the prosecution cannot avail itself of s 322L. Therefore, self-defence should be before the jury from the beginning of the trial on the basis that there is an evidentiary foundation for it.
Further, there is doubt on whether at the time the accused was seated behind the wheel of the car he had a knife in his possession. In this regard, the accused points to evidence that immediately before the physical altercation between the two men, the deceased was seen to be rummaging through the glove box of his car to obtain a mobile phone charger, and thus may have acquired a knife at that point. Submitting that if the prosecution cannot make good its argument that this was an aggravated carjacking, the prosecution will not be able to use s 322L, and self-defence would be left to the jury.
In support of its overall contentions, the accused points to deposits of the accused’s blood found in the interior and the exterior of the deceased’s car as well as bruising on the knuckles of the deceased’s left hand, both of which are claimed as adding support to an evidentiary foundation for leaving self-defence to the jury. The accused also points to notes of an “off–chat” conversation between the accused and the arresting police officer Angus where he is recorded as claiming, “the guy came at him with a knife and that he received a wound to his left hand where he was stabbed on top of the palm, base of fingers and he deflected the knife, took it from the guy using his left hand, stated he took the knife off him”. Further, it is observed that the accused was medically examined by a doctor approximately 17 days after the fatal assault, with the doctor observing two areas of skin discolouration and healing the palm of the surface of his left hand. The opinion was expressed that these may represent healing injuries with new skin formation such as seen in healing incisions, abrasions or lacerations or other cause of breach to the surfaces of the skin. It was submitted that these observations are capable of providing some support for the claim by the accused that he was struck with a flick knife to his left hand, and that he had taken the knife off the deceased.
It is submitted that on the totality of the evidence it is open to conclude there was no aggravated carjacking, rather, a request for a lift. In support of this, it was submitted that the finding of the keys was a separate and distinct act, taking place after the fatal altercation. It was submitted that it will be open for a jury to conclude that there was not an attempt to steal a car, that the accused was asking for a lift which was rebuffed, and that it cannot be established that aggression by the deceased towards the accused was lawful, or that the accused apprehended lawfulness in any of the activity to deprive him of the defence of self-defence. Further, the accused points to the evidence of two security guards during the events from the doorway of the club, who described the deceased punching the accused, with the accused punching him back, and that they punched each other.
Further, the accused argues that it is open to conclude that the transaction was not a continuing one. The accused argues there were two exchanges between himself and the deceased, there being a break in the altercation before the deceased is alleged to have spear tackled the accused. The accused submits that the break in the events calls into question the lawfulness of the deceased’s assault upon the accused and further calls into question the knowledge, state of mind of the accused in relation to the lawfulness or otherwise of any aggression being visited upon him by the deceased.
Accordingly the accused submits that doubt attends the unlawfulness of the intention the accused had in relation to the deceased’s motor vehicle at the time he was seated behind the wheel of the car, and thus calls into question lawfulness for the purposes of section 322L of the Act. Thus, it was submitted that s 322L of the Act cannot be invoked by the prosecution to operate as a bar to the leading of self-defence in this case.
Prosecution submissions in reply
In reply, the prosecution points to conflicting accounts of the witnesses as to who did what, when, why and where. First, the prosecution pointed the evidence of Carr who says the accused attacked first. Second, to the evidence of Spencer who says the “rugby tackle” occurred after the initial attack. It was submitted that the critical aspect of the evidence as it presently stands is that the accused was sitting in the driver’s seat of the car, thus prompting the question why he was doing that after he had been told by the deceased that he would not give him a lift, following which he got into the deceased man’s car.
It was submitted that this is the starting point of the continuation of events through to the moment the accused struck the deceased man, resulting in his death and then drove away in his car. It was submitted that the court should give weight to the evidence of Avdulla, being the only witness that has been cross-examined, maintaining that it was the accused that demanded the car keys, and that the accused escalated the events into an aggressive confrontation.
It was noted that the security guards only watched the events from inside the hotel and behind glass and were not in a position to hear what was being said, and do not purport to give evidence that they did. Additionally, it was pointed out that CCTV taken at Avdulla’s home before the accused went to the nightclub showed that he had a knife in his hand before he ever got to the hotel.
The prosecution also points out that the weapon that inflicted the fatal injury has not been located, and there is nothing in the forensic material to suggest that the flick knife caused any injury at all.
It was submitted that what can be established is that the accused wanted to take the car, and that is exactly what he did. Further, the best way to determine his intention is to observe what he actually did. Rather than finding another way of leaving the scene, he left in the car that he intended to steal in the first place. Thus, his act in stealing the vehicle was completely and utterly consistent with what his intention was from the beginning. It was submitted that the defence argument that an equally consistent hypothesis as an aggravated carjacking is that the accused just panicked when he drove away should be rejected. In essence, the prosecution argues that whether there was an aggravated carjacking or a car theft, either circumstance would amount to an unlawful act which prompted the response of the deceased to demand the accused remove himself from his vehicle, resulting in the physical confrontation between the two men. It was submitted that the events cannot be separated, isolated and segmented.
It was also submitted that even if a reasonable view of the evidence was that there was a break in the transaction, namely the attempted carjacking had come to an end with a separate assault developing at the side of the car, then the defence of self-defence would still not be available as the accused man started the events by doing what he did. The prosecution case is that the deceased was entitled to use force, if necessary, to get the accused out of his car. The prosecution argues that the deceased’s statement to the accused to get out of the car or he would be dragged out, is what prompted the accused to exit the car, and start punching the deceased. It was submitted that the events have to be recalled in a realistic way, and that it was the behaviour of the accused that started the events in the first place.
Finally, it was submitted that should the question of self-defence be reserved until the end of all the evidence, this would involve “tremendous” mental gymnastics asked of the jury if self-defence is ultimately taken away from its consideration. At the same time, the prosecution could not rule out that the accused may give evidence advancing a case of self-defence. The prosecutor fairly conceded that this may represent a valid reason why the issue presently under consideration should not be determined at this stage of the proceedings, and that there may be some force in that approach.
Discussion and conclusions
It is clear from the defence response and from submissions advanced, that the accused has raised self-defence as an issue to be determined in this trial. In those circumstances, it would normally be expected that the prosecutor’s opening address to the jury, and the defence oral response to it, would squarely identify it as a central issue upon which the trial will be conducted.
The application made for an advance ruling raises a practical issue as to whether the primary defence of the accused should, or should not, be put before the jury from the start of the trial.
The prosecution argues that the evidence does not allow for the possibility that the accused acted in self-defence. In order for that submission to succeed, I would have to be satisfied that the reasonable possibility of that occurring will not come into existence in this trial. Therefore, the impact of the prosecution submission is that the court should decide at this stage, before any evidence is placed before the jury, that there is no reasonable possibility that facts that would establish self-defence, will emerge during the hearing of the evidence.
The accused submitted that the ruling sought by the prosecution can only be given once the court has heard all of the evidence that supports self-defence or otherwise. Any ruling in relation to s 322L and its operation as a bar to self-defence being left to the jury, can be decided at that point.
In the circumstances presented by this case, I agree with the submission advanced for the accused. I intend to follow the course that presented itself in McDowell, and that the determination of the application of s 322L should await the completion of all the evidence in the trial.
The onus of proof for self-defence to apply is set out in s 322I of the Act. 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. At present, there is at least some evidence that in my opinion raises the issue of self-defence. However, that may, or may not remain the case, much will depend on how the evidence unfolds at trial.
On the evidence as I understand it to be at this point and the submissions advanced by both parties, I am not prepared to conclude at this preliminary stage of the proceedings that there is no reasonable possibility that evidence will be placed before the jury that would satisfy the onus of proof required under s 322I of the Act. In particular I note that two apparent eye-witnesses to the events in dispute have not given evidence in chief or been cross-examined. Also, the accused may give evidence at his trial, this being a matter that he is not obliged to reveal until the close of the prosecution case. This possibility was fairly acknowledged by the prosecution and it appeared accepted that this argument raised by the accused has some validity.
The submissions that have been made on this issue satisfy me that at least some of the accounts given by witnesses will be in dispute. Further, it was noted that witness Young gave evidence at the committal contrary to his statement made to the police. It appears to me to be likely that this witness will be subject to an application pursuant to section 38 of the CPA. There is doubt in my mind as to what the state of the evidence will be by the end of the prosecution case, and any case that may be advanced by the defence. I note also that there are clear suggestions that at least some of the witnesses had been engaged in drug use around the time of the events. In those circumstances, I would be reluctant to make an advance ruling in where the state of the evidence is insufficiently clear to be sure what facts will eventually be available for the jury’s consideration.
The accused argued that the request for an advance ruling is premature as neither Carr nor Spencer have been cross-examined in a committal proceeding, and as such, each should be cross-examined before the determination of the matter presently in issue. As noted above, during the hearing of this application the court was informed that Carr and Spencer had been unable to be located and were not available for a hearing pursuant to s 198B of the CPA. It is to be noted that the prosecution had consented to applications for those hearings.
The accused submits that self-defence is principally raised through the evidence of Carr and Spencer. However, it is also argued that the defence is raised by a statement made by the accused arresting police wherein he said, “I punched on with him. He pulled a knife on me, he’s bigger than me. I’m only 55 kilos”. Furthermore, it is submitted that self-defence is capable of finding support from an account given to police by the accused that some 17 days after the events the accused had injuries consistent with an alleged stabbing attack on him by the deceased.
In my opinion the accused has raised self-defence as a reasonable possibility. Further, it seems to me that the possible application of s 322L is dependent on what the jury are to make of the accused’s intention with respect to the deceased’s motor vehicle, namely, whether when he entered it before the fatal events, and demanded the car keys or whether he was intending to take it in the course of an aggravated carjacking. Depending on how the evidence develops, one possible view of the events is that the alleged attempted aggravated carjacking was finished when the accused stepped out of the motor vehicle, and what happened from that point onwards was a physical altercation between two men, which had become disconnected from the attempted carjacking. In the end, a resolution about that question remains a matter for the jury.
It may well be that the jury eventually accept the prosecution case as put forward, but in my opinion it is too early to rule that self-defence is not, and will not be, available to the accused in this trial. Therefore, a decision as to whether self-defence will be left for the jury’s consideration should be left until the completion of all the evidence. At this stage, and before the evidence is heard, I am not prepared to accept the prosecution submission that a defence of self-defence is ‘bound to fail’.
At one point the question was proposed that self-defence might not be raised at the beginning of the trial, but that the trial could proceed with evidence being adduced which may eventually support the defence being left for the jury’s consideration. It seems to me that to take such a course would be far from desirable. To conduct the proceedings in a manner that would not disclose the existence of a possible defence, and the prosecution response to it, would not comply with common sense, fairness, and the spirit of the legislative scheme that requires the filing and delivery of a prosecution opening, and a written and oral defence response. The scheme clearly provides for an opening to be given to the jury by the prosecution which outlines the case to be presented, and in response, the defence set out what the issues are in the trial.
To do as was discussed would mean that the true nature of the case, and the proposed defence, would effectively remain a mystery up until the point where the application of s 322L would be determined. If determined against the prosecution, then self-defence would be exposed for the first time at that point. It is my view such an approach to this case would be entirely inappropriate.
Accordingly, in my opinion the appropriate course to take is that in circumstances where the defence has specifically raised the issue of self-defence, and have indicated that the defence will be argued before the jury, the case should be presented to the jury on that basis from the start. If by the close of all of the evidence in the trial it becomes evident that self-defence cannot be left to the jury’s consideration, then so be it. It may well be that the jury will hear all of the evidence and at least some of the argument that bears on the issue. If it happens that the defence cannot be put to the jury as a matter of law, then the jury will be expected to apply the legal directions that will be given at that time. The possibility of this occurring is clearly well known within the criminal trial process.
An alternative verdict?
It should also be noted that leave was sought by the accused to amend his Defence Response to raise the issue of the requisite intent for murder in circumstances where one stab wound was inflicted on the deceased, in the fast moving dynamic circumstances of a violent altercation involving the two men. That the deceased suffered one fatal stab wound in those circumstances is capable of calling into issue whether at the time of the fatal assault the accused man had the requisite murderous intent alleged by the prosecution. Accordingly, it was acknowledged that depending on which way the evidence falls it may be open for the accused to argue that the offence of manslaughter as an alternative to the present charge of murder. The prosecution indicated that no objection would be taken to leave being granted to amend the defence response, acknowledging that the present case is of the kind where such an outcome may be open for the jury to consider.
From distilling the submissions made, and the relevant evidence, it is clear there will be a significant dispute as to what can be proven to have taken place at the side of the deceased’s car. The events were fast-moving and dynamic, and the prosecution case depends on a number of potentially differing recollections of witnesses as to exactly what occurred.
In the above circumstances I am of the opinion it is appropriate to grant leave to amend the Defence Response in the way sought by the accused.
0
1
0