Director of Public Prosecutions v Mehdi & Ors (Ruling 12)
[2025] VSC 261
•21 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0154
S ECR 2023 0155
S ECR 2023 0157
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZEESHAN MEHDI, MOWEIT QIAN and DARA CHAU | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2025 |
DATE OF RULING: | 21 March 2025 |
DATE OF WRITTEN REASONS: | 23 April 2025 |
CASE MAY BE CITED AS: | DPP v Mehdi & Ors (Ruling 12) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 261 |
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CRIMINAL LAW — Murder — Self‑defence — Prosecution case closed and accused yet to announce their course — Application by two accused for advance ruling on question of whether self‑defence will be left for the jury’s consideration — Advance ruling appropriate — Whether accused have discharged the evidentiary burden found in s 322I of the Crimes Act 1958 (Vic) — Evidentiary burden not discharged — Self‑defence not to be left for jury’s consideration on the evidence as it stands — Crimes Act 1958 (Vic) ss 322I & 322K; Edmunds v The King [2025] VSCA 31; R v Kell (Ruling No 1) [2008] VSC 518.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton SC with Ms J Ball | Office of Public Prosecutions |
| For Zeeshan Mehdi | Mr M McGrath with Mr W Blake | Slades & Parsons Criminal Lawyers |
| For Moweit Qian | Mr G Casement with Ms L Andrews | Chester Metcalfe & Co |
| For Dara Chau | Mr J Desmond with Ms S Stanley | Giorgianni & Liang Lawyers |
HER HONOUR:
Introduction
The three accused, Zeeshan (Zac) Mehdi (‘Mehdi’), Moweit Qian (‘Qian’) and Dara Chau (‘Chau’), are charged that on 11 July 2022 at Noble Park they murdered Tommy Loulanting (‘Loulanting’). They are also charged with affray. Loulanting was struck three times with a sharp implement and shot twice with a shotgun. One of those shots was to the face and was fatal.
The principal prosecution case is that the three accused and Tuong Nguyen (‘Nguyen’) were party to a plan or agreement to kill or cause really serious injury to Loulanting.[1] In his opening address, Mr Hutton SC expressed the case in these terms: they were part of an agreement to jointly attack Loulanting with deadly weapons and with the intention of killing or causing really serious injury to Loulanting.
[1]Truong Nguyen was originally also charged with the murder of Loulanting. His matter subsequently resolved. He is not an accused in this trial, but factually, he remains relevant to the prosecution case.
The prosecution have not undertaken to prove which of the four men fatally shot Loulanting. The prosecution case is put on two alternative bases of complicity. Each accused is involved in the murder of Loulanting because either:
(a) the accused in question entered into an agreement, arrangement or understanding with the other accused and/or Nguyen to murder Loulanting; or
(b) the accused in question intentionally assisted, encouraged or directed somebody (the principal offender) to murder Loulanting.
Loulanting was killed inside Unit 2/88 Corrigan Road, Noble Park (‘Unit 2’) shortly before 6am on Monday 11 July 2022. Initially, all accused stated that presence was not an issue. Mehdi and Qian admit they were inside Unit 2 at the time Loulanting was killed. Chau, it seems, admits he was there at some point prior or proximate to the shooting, but was not physically present at the time of the shooting. Logically, the killer can only have been one of the three accused or Nguyen. None of the accused admit to fatally shooting Loulanting. None of the accused have identified or suggested who the shooter was.
The prosecution case has closed. The accused have not yet been called upon to announce their course. An issue has arisen as to whether, on the evidence as it stands, self‑defence should be left for the jury’s consideration. Mr McGrath on behalf of Mehdi, and Mr Casement on behalf of Qian, submit that it should. Mr Desmond on behalf of Chau made no submission. Mr Hutton on behalf of the prosecution submits that none of the accused have discharged their evidentiary burden and there is no lawful basis on which self‑defence can be left for the jury’s consideration.
All parties agree that the question of self‑defence should be ruled on by way of an advance ruling. It is appropriate to rule on the question now as it may impact the course taken by any or all of the accused.[2]
[2]Section 192A of the Evidence Act 2008 (Vic) deals with advance rulings and findings. However the question here does not appear to fall within that section as it is not about any of the matters contained in sub‑paragraphs (a), (b) or (c) of s 192A.
In response to a direct question from myself, both Mr McGrath and Mr Casement also submitted self‑defence should be left on the charge of affray.
The argument concluded at the end of an afternoon. Given the stage of the trial, I ruled the next morning. I gave oral reasons for my decision and indicated I intended to publish written reasons later. These are those reasons.
Overview of prosecution case
The background to the incident is not really in dispute. Around April 2022, Christina Subu (‘Subu’) had given $2,000 to Mehdi’s wife, Diana Mossawi (‘Mossawi’). An issue arose between the two women as to whether the money was a gift or a loan. Subu regarded the money as a loan and wanted repayment. By July 2022, the money had not been repaid. Subu then involved Loulanting to assist her to recover the money.
On 3 July, Loulanting attended at the home of Mehdi and Mossawi, searching for Mehdi. Mehdi was not home, but Mossawi and the couple’s two‑year‑old child were present. Loulanting tried to force his way inside and only left after Mossawi threatened to call the police.
Mehdi effectively ‘took over’ the debt on behalf of his wife. On 8 July at around 4:30am, Loulanting, together with another man, collected Mehdi from Unit 2 and drove him to Subu’s address in Dandenong. Once inside Subu’s house, Mehdi was bashed, threatened and humiliated by Loulanting and the other man over the unpaid debt.
Unit 2 is an address associated with Mehdi but it is not his home address. Based on the photographs, the unit is barely furnished. There is damage, unrelated to this case, to the kitchen ceiling. A person called Aaqiel Rahimi (‘Rahimi’) was living in one of the two bedrooms. Rahimi was spoken to by police immediately after Loulanting was shot. He said the front door is never locked and the other person who lives there was ‘probably overseas’.[3] It is unclear on the evidence who owns Unit 2. There is other evidence in the trial that various persons were coming and going from Unit 2, including Mehdi.
[3]Mr Rahimi was interviewed by police on 11 July 2022. Mr Rahimi was not called as a witness, however the recording of his interview is a prosecution exhibit in this trial.
Following the events of 8 July, the prosecution case may be summarised as follows:
·As a result of the beating, Mehdi had a grudge against Loulanting, which he would not relinquish. He was determined to exact revenge on Loulanting for the beating he had received.
·On the night of 10 July and into the early hours of 11 July, Mehdi knew Loulanting was looking for him. Mehdi had conveyed this to Chau. At around 2am, Loulanting attended at Unit 2 with a baseball bat and with seven or eight others looking for Mehdi. At 2:49am, Mehdi complained in a text message to Chau that ‘they are at Corrigan house fucking shit up, and all of this happening because I listened to [you] last night and trusted [your] words when [you] said [Zac], wait, tomorrow my boys will come and we do it professional’. Chau replied, ‘[b]ro what do you want to do we go [and] do it’.
·Mehdi had with him a single barrel sawn‑off shotgun by at least 10:30pm on 10 July when he can be seen on CCTV footage at the Highways Hotel, meeting with Michael Kolio (‘Kolio’) and carrying a distinctive red bag.
·At some point after attending at the Highways Hotel, Mehdi and Kolio attended the house of Gabbi Jabbour (‘Jabbour’). At around 3am on 11 July, Mehdi was collected from Jabbour’s house by Chau. Chau, in his sister’s car, drove Mehdi and Jabbour across several suburbs before meeting up with Qian, who was in a silver Ford. Chau got out of the vehicle and spoke with Qian. While waiting in the car Jabbour saw a single barrel sawn‑off shotgun in a bag at Mehdi’s feet.
·Chau, Mehdi and Jabbour then travelled to Springvale to the home of Prince Ibrahim Hadji (‘Hadji’). Qian also travelled to the same house in the silver Ford. While at Hadji’s house, Mehdi collected a silver Mercedes which belonged to Hadji. It seems Nguyen was at Hadji’s house and became involved at this point.
·Mehdi drove the silver Mercedes with Jabbour in the passenger seat and Qian and Nguyen in the back seat to the Sandown Park Hotel. Jabbour got out and joined Kolio, who had travelled independently to the Sandown Park Hotel. Jabbour and Kolio drove in Kolio’s Passat to Corrigan Road.
·At some unidentified point, Chau rejoined Mehdi, Qian and Nguyen. The four men arrived at Corrigan Road in the silver Mercedes. Once there, Nguyen covered the CCTV camera that recorded people coming and going from Unit 2. Nguyen’s actions were clearly captured by another CCTV camera.
·The three accused and Nguyen then left the silver Mercedes, which was parked in the street, and entered Unit 2. Kolio gave evidence that he followed the four men up the driveway and also entered Unit 2. Kolio said he saw an Asian male with a shotgun. The male had his face covered and it was neither Mehdi nor Chau, both of whom were also present and known to Kolio. Kolio left the unit and returned to his vehicle, where he waited with Jabbour.
·Mehdi exchanged text messages with Subu and told her to come to 88 Corrigan Road to collect the money she was owed. It may be inferred that Mehdi knew that by inviting Subu, Loulanting would also attend.
·Loulanting drove to 88 Corrigan Road with his two sons. Subu and her boyfriend, Reza Misawi (‘Misawi’), travelled to Corrigan Road in a separate vehicle. Loulanting, Subu and Misawi walked to the door of Unit 2. Subu was in front but Loulanting moved her out of the way after she had knocked on the door.·The three accused and Nguyen were waiting inside the unit. Mehdi’s face was uncovered. The other three men were wearing balaclavas or similar to cover their faces. Between them they were armed with a loaded single barrel sawn‑off shotgun and at least one sharp bladed implement.
·The door was answered by Mehdi. Immediately upon the door being opened, Loulanting entered the unit followed by Subu. He was carrying a square shaped torch. It is unclear if Misawi made it past the threshold, and he is not a witness in this trial. Loulanting was immediately set upon by the three accused and Nguyen.
The prosecution case is that what occurred inside the unit was a fast moving, single incident. Loulanting was effectively ambushed. He was attacked using at least one sharp bladed implement and shot twice with a single barrel shotgun. The whole incident lasted a matter of minutes. Based on the forensic evidence and contrary to the evidence of Subu, Loulanting was shot in the hallway.
Immediately after the incident, the three accused and Nguyen ran out of the unit in pursuit of Subu and Misawi. Kolio, who was waiting with Jabbour on Corrigan Road, drove his vehicle near to where everyone emerged from 88 Corrigan Road. Kolio can be seen on CCTV footage exiting his vehicle and appearing to throw a single punch. The prosecution allege the three accused and Nguyen engaged in an affray. One of the four used a pole or the butt of the gun to break the window of the vehicle which contained Loulanting’s sons. Chau had a machete, Nguyen had a tomahawk and Mehdi had a pole. Qian had the single barrel shotgun which he pointed towards Subu during the affray. The prosecution allege this can be seen on the CCTV footage, but Subu herself did not give this evidence. She said she was struck once with a baton wielded by Mehdi.
The three accused and Nguyen then returned to the silver Mercedes and drove away from the scene. Subu and Misawi also drove away, as did Loulanting’s sons (albeit they returned shortly afterwards to try and help their father).
The prosecution have also led evidence of admissions or implied admissions made by all three accused after the events in question. Subu gave evidence that, approximately five minutes after the shooting, Mehdi rang her and said ‘I shot your boy’. Jabbour gave evidence that, the day after the shooting, Mehdi told him that ‘he was standing in the door and the door knocked’. He had the gun in his hand. He was shaking and the guy from the silver Ford was next to him. The male from the silver Ford said to Mehdi, ‘you fuckin[g] weak cunt, give me the thing’. The Asian male from the silver Ford then took the gun out of Mehdi’s hands and shot Loulanting. This evidence is admissible only in the trial of Mehdi. There is no dispute that the ‘Asian guy from the silver Ford’ is Qian.
Approximately two months after the shooting, Qian sent a message to a friend ‘Big Jase’. Qian said he knew he ‘shouldve dropped her too lol’. He wrote, ‘I reloaded for her. But didnt pull, 6am traffic in corrigan. Fkn mo lol’. The prosecution will argue this is a reference to pointing the loaded gun at Subu outside on Corrigan Road, after Loulanting had been murdered inside Unit 2. The statement, ‘I knew I shouldve dropped her too’, is an implied admission by Qian that he ‘dropped’ (meaning shot) Loulanting.
The prosecution also rely on other incriminating conduct such as the multiple lies told by Chau and Qian in their records of interview; Mehdi’s request of Jabbour to burn the silver Mercedes; Chau’s attempts to avoid being linked to his sister’s vehicle at the relevant time; and Qian’s interest in and screenshotting of media articles immediately after the shooting.
No accused has raised self‑defence or defence of another in his record of interview or in any other post offence out‑of‑court statement.
Evidence of Subu
The only witness present at Unit 2 who gave evidence was Subu. Subu said that she and Misawi drove to 88 Corrigan Road in her vehicle. They walked to where Loulanting had parked his van in the driveway and Loulanting got out of his vehicle. He was holding a torch that was switched off. They spoke and laughed about something, she could not remember the topic. She either knocked or rang the doorbell and then Loulanting pulled her out of the way, meaning Loulanting was at the front when the door was opened. She was asked if she saw who opened the door and the transcript records her answer as ‘[y]es, he was with Zac’. To her observation, Zac was not carrying anything. Zac stepped away from the door and Loulanting walked towards the loungeroom. She followed and was one or two steps behind. Someone then came into the loungeroom wearing a mask and carrying what looked like a shotgun. He lifted the shotgun, pointed it at Loulanting and ‘ended up shooting Tommy’. Subu said she both saw and heard Loulanting get shot in the face in the loungeroom, and saw him drop to the floor. She saw two other people inside the house that were also ‘masked up’. After Loulanting dropped to the floor, Subu turned and ran out of the unit. Misawi, who it seems either did not, or barely, entered the unit, also turned and ran out. Mehdi chased Subu and hit her once to the back with a baton. Subu saw three people chasing Misawi, and they were all masked. One of them was holding a weapon which she described as a ‘sword or a tomahawk or something’.
Subu was cross‑examined extensively. She said that she, Loulanting and Misawi had all been smoking ice that night. She agreed that Loulanting was a violent man and he was particularly aggressive when he was smoking ice. She agreed that she had set a 2am deadline for repayment of the debt. She told Mehdi that if he did not pay, it would be ‘worse [than] last time’, and by that she was threatening Mehdi with serious violence. She also told Mehdi ‘you know [Loulanting] will find you’. She agreed it was clear on this night that Loulanting wanted to kill Mehdi. She told Mehdi that Loulanting was coming around to ‘burn down the house and everyone in it’. She agreed that Loulanting was looking for Mehdi and there were at least two other carloads looking for Mehdi at Loulanting’s direction.
On behalf of Mehdi, it was put that between meeting Loulanting in the driveway and approaching the front door of Unit 2, they discussed what would happen inside the house. She said no. It was put that once at Unit 2 she did not knock on the door. She disagreed. It was put that Loulanting kicked or forced his way into the unit, and she said he never forced his way in. It was put that when Mehdi was in the hallway, Loulanting grabbed him by the throat and said, ‘this time I’m going to fucking kill you’. It was at this point that ‘people came to the aid of Mehdi’. She answered no to both propositions. It was put that, at this point, there was ‘someone in a mask’ and she agreed she saw someone in a mask. It was put that they were trying to get Loulanting off Mehdi and she answered no. She agreed she saw a gun. She did not accept that she did not see Loulanting get shot. She agreed she only heard one gunshot.
On behalf of Qian, it was put that Loulanting pushed her aside and was the first to approach the door of Unit 2. She answered yes, but said that was after she either rang or knocked. She said Loulanting entered the unit and turned left towards the loungeroom and she was behind him. She agreed that she was still behind Loulanting when she saw a person with a gun and that person appeared suddenly. It was put that she started retreating and ran out as soon as she saw the gun, and she answered ‘[o]nce I seen Tommy drop, that’s when I ran back.’ It was then put that Loulanting ‘barged’ into the unit ahead of her. She disagreed. It was put that he went ‘straight for Mehdi who was standing in the hallway’ and ‘got a hold of Mehdi’. She said no. It was put that Loulanting said he was going to kill Mehdi and she answered ‘[n]ot at that time, no, but in messages, yes.’ She was referring to messages that had passed between her and Loulanting earlier that night. It was put that a struggle occurred in the hallway and ‘others’ came to assist Mehdi. She said no. She did not accept there was ‘lots of noise and there were people yelling’. When it was put that she did not see Loulanting get shot or drop, she said she did see him drop and that was when she ran out of the unit.
In cross‑examination on behalf of Chau, Subu said there was ‘Zac and three other people’ in the unit. She was taken to what she had said on previous occasions, and agreed that inside the unit she saw Zac and two masked men. Outside the unit after the shooting she saw Zac and three men. Her final position was that inside the unit she saw Zac and two other masked men. She marked on a floorplan the location of the shooter, Loulanting and herself at the time she saw Loulanting get shot. It was suggested that Loulanting ‘rushed in confronting [Zac]’; she answered no. Mr Desmond cross‑examined in several messages Subu sent to a friend the day after the shooting. Subu wrote, ‘but [Loulanting] wanted to get Zac no matter what’. That message has no other context. Subu went on to say that her mate got shot, she was right behind him, and Zac did it with four other guys.
It is not necessary for these purposes to summarise the cross‑examination further. Importantly, Subu rejected any suggestion that Loulanting kicked or forced his way into the unit or ‘barged’ in. Similarly, she clearly rejected any suggestion that Loulanting assaulted Mehdi, that he grabbed Mehdi by the throat, that Loulanting told Mehdi, ‘this time I’m going to fucking kill you’, or that people came to the aid of Mehdi.
Overview of the prosecution’s submissions
Mr Hutton submitted that neither accused has discharged the evidential onus found in s 322I of the Crimes Act 1958 (Vic) (‘Act’). There is no basis to leave self‑defence for the jury’s consideration on the charge of murder. Mehdi and his group, or team, have arranged to be at the house, masked and armed. Once the evidence reaches the point of the front door, the only person who gives an account is Subu. If her evidence is rejected, there is a gap in the evidence. Rahimi, who was in the second bedroom with the door closed, heard one shot and some type of struggle. Nothing Rahimi says indicates whether Loulanting either commenced a fight or was fighting back against armed assailants.
Overview of the defence cases and submissions
On the question of whether self‑defence should be left to the jury, Mehdi and Qian relied essentially on the same evidence. In summary:
·Loulanting was known to be a violent standover man with a history of violence including the use of weapons. Multiple witnesses have attested to his violent nature. He had significant prior convictions.[4]
[4]Evidence of Loulanting’s prior convictions were admitted as tendency evidence. See DPP v Mehdi & Ors (Ruling 1) [2024] VSC 830.
·Loulanting was using ice on 11 July and in the days prior. He became more violent, aggressive and erratic when he used ice. He had not slept in the days leading up to his death. He was a very big man, measuring 187 cm and weighing 120 kg.
·Loulanting was fixated on ‘getting’ Mehdi. This was no longer about the debt. Mehdi had been seen out playing poker machines (‘pokies’), and this had been relayed back to Subu and Loulanting. Loulanting believed Mehdi was making him look foolish by failing to pay the debt when he clearly had money to play the pokies.
·Loulanting had attended at Mehdi’s home on 3 July. Mehdi’s wife was home with their two‑year‑old son. Loulanting was aggressive and attempted to force his way through the front door, searching for Mehdi.
·On 8 July, Loulanting attended at Unit 2 and took Mehdi to Subu’s house. Once there, Loulanting and another man assaulted, tasered, tortured and humiliated Mehdi over the course of about one hour. Mehdi was given a deadline in which to pay the money. Loulanting kept the BMW vehicle that Mehdi had been driving at the time.
·On the night of 10 July, Loulanting and Subu were looking for Mehdi. After Mehdi and Kolio left the Highways Hotel in Kolio’s vehicle, Subu and Loulanting followed them in separate vehicles and attempted to ‘box them in’. Kolio avoided the situation by driving on the footpath.
·Loulanting knew that Mehdi was effectively living at 88 Corrigan Road. At around 2am on 11 July, Loulanting attended at Unit 2 looking for Mehdi. Loulanting can be seen on CCTV footage, carrying a baseball bat and approaching the front door. He had his sons with him in his vehicle, and there were at least one or two other carloads of people who were associates of Loulanting also hunting for Mehdi. Medhi was made aware of this incident.
·Subu was in frequent contact with Loulanting on the night of 10 July and on the morning of 11 July in the hours leading up to the shooting. Loulanting wanted to kill Mehdi. He wanted to burn his house down and he sent Subu a photo of a red jerry can. He said he wanted to burn Mehdi’s wife. Importantly, Subu had conveyed to Medhi, in the early hours of the morning of 11 July, that Loulanting had threatened to burn his house down and everyone in it.
·Mehdi did not invite Loulanting to 88 Corrigan Road, and Mehdi did not ask Subu to bring Loulanting with her. It is clear that Loulanting attended on the morning in question because he wanted to violently assault or kill Mehdi.
·Loulanting deliberately parked diagonally across the driveway in such a way that anyone leaving Unit 2 would be forced to go past the driver’s side of his vehicle. He instructed his two sons to wait in the vehicle. They had with them a baseball bat, and Loulanting told them that if anyone was to escape they should ‘take a shot’ with the baseball bat. Loulanting told them that if they accidentally killed someone not to worry and he would fix it or clean it up. It may be inferred Loulanting was intending violence and anticipating people inside Unit 2 would flee outside.
·Once at the front door, Loulanting pushed past Subu and entered the unit first. Mehdi would have been terrified to see Loulanting given all that had preceded his arrival. It is reasonably possible Mehdi thought Loulanting was armed or likely armed with a baseball bat, taser or other weapon.
·Rahimi described the sound of people fighting. He thought they were screaming at each other. He heard fighting noises, banging against the walls and a loud bang. This all contributes to the reasonable inference that Loulanting attacked Mehdi and a fight broke out.
Submissions on behalf of Mehdi
Mr McGrath argued that in all the circumstances it is reasonably possible that Loulanting entered Unit 2 and immediately and violently assaulted Mehdi. This was his clear intention, and a reasonably possible available inference is that Loulanting acted in accordance with this intention. Subu denied this had occurred, but it is open to the jury to reject her evidence. Her evidence that Loulanting was shot in the lounge room must be wrong, given no blood is found in the lounge room.
Mr McGrath argued the jury are entitled to consider whether Loulanting may have attacked Mehdi, and that whoever shot Loulanting did so to defend Mehdi or ‘anyone else in the house’ from the infliction of death or really serious injury. This is a reasonable and plausible hypothesis available on the evidence, and a jury would need to exclude this as a reasonable possibility in order to exclude self‑defence.
Submissions on behalf of Qian
Mr Casement adopted and supported the submissions made by Mr McGrath. Mr Casement submitted that it is not disputed that Qian was inside Unit 2, and it may be that Qian had a weapon inside the unit. Mr Casement stated, ‘[a]nd then the door opens. What happens next?’. He argued that these events have not come out of the blue. It is open to infer that all those inside the unit knew that Loulanting was hunting Mehdi and intended to cause him really serious injury or death. It is reasonable to infer Mehdi would have shared this information with the other accused and Nguyen. Rahimi describes hearing a fight. Subu’s account is contradicted by the objective forensic evidence which shows Loulanting entered the unit, made it down the hallway and turned the hallway corner. This was not a sudden ambush or silent killing. It was a fight and, in all the circumstances, it is reasonably possible Loulanting was the initial aggressor and those in the unit responded in self‑defence.
The legislation and legal principles
The statutory form of self‑defence applicable in this case is found in pt 1C of the Act.
Section 322K sets out when a person acts in self‑defence and states:
(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.
Section 322I addresses the onus of proof and reads:
(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).
Picking up the words of ss 322I and 322K(3), in order for self‑defence to be left to the jury on a charge of murder, the accused must present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish that he believed his conduct was necessary to defend himself or another person from the infliction of death or really serious injury. When using the expression ‘self‑defence’ in these reasons, I include defence of another.
Two matters must be steadily borne in mind. First, it is not for an accused to prove he was acting in self‑defence. The onus is on the prosecution to prove, beyond reasonable doubt, that the accused was not acting in self‑defence. Secondly, questions of fact and the drawing of inferences are quintessentially matters for the jury.[5]
[5]Doney v The Queen (1990) 171 CLR 207, 213; R v Cengiz [1998] 3 VR 720, 721.
In Zecevic v Director of Public Prosecutions,[6] the appellant had relied on self‑defence. The majority stated:
[T]he appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence. As Gibbs J. observed in R v Muratovic … ‘the plea of self‑defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided … that there is evidence on which a reasonable jury could decide the issue favourably to the accused’.[7]
[6][1987] 162 CLR 645.
[7]Ibid 665 (Wilson, Dawson and Toohey JJ), quoting R v Muratovic [1967] Qd R 15, 20 (Gibbs J).
While common law self‑defence has been abolished,[8] the principles found in those cases continue to inform when self‑defence should be left to a jury. As recently discussed in Edmunds v The King (‘Edmunds’),[9] the evidentiary onus of proof provided for by s 322I should be construed to allow for the possibility that evidence might meet the test even if the evidence of self‑defence is ‘weak and tenuous’.[10] All that is needed is evidence capable of supporting a reasonable doubt in the mind of the jury as to whether the prosecution has excluded self‑defence. On a charge of murder, there needs to be evidence capable of indicating a reasonable possibility of a belief by an accused that his conduct was necessary to defend himself (or another) from the infliction of death or really serious injury; and of a perception of circumstances by the accused such that his response was reasonable. It is not essential that there be direct evidence from the accused as to his beliefs and perceptions, but it must be fairly raised on the evidence. An issue may be held to arise if facts may be inferred from which the possible claim to self‑defence has been made out.[11]
[8]Crimes Act 1958 (Vic) s 322N (‘Crimes Act’).
[9][2025] VSCA 31 (‘Edmunds’).
[10]Ibid 31 [163] (Emerton P, Taylor JA and Kidd AJA).
[11]R v Kear [1997] 2 VR 555, 566 (‘Kear’).
Dictionary definitions of ‘tenuous’ include slender, of slight importance or significance, meagre, weak, flimsy, vague and unsubstantial. There is, however, a clear difference between something being tenuous and being speculative. To speculate is to form opinions about something without having the necessary information to do so. The Court in Edmunds observed that the word ‘suggests’ in s 322I(1) is important and should not be overlooked. It is not for the trial judge to evaluate or weigh the evidence that is pointed to or presented by an accused, or draw any conclusions.[12]
[12]Edmunds, 32 [168].
However, the evidence must be capable of raising self‑defence as a matter of legitimate reasoning and not mere speculation.[13] The claim of self‑defence must be realistic in all the circumstances of the case and there must be a ‘sense of reality about the process’.[14] If the matters relied upon by an accused rise no higher than speculation or surmise, and never achieve the level of an available inference (let alone a rational or compelling inference), then an accused will not satisfy the evidentiary onus required by s 322I(1).[15]
[13]Kear, 557.
[14]R v Yasso (2004) 10 VR 466, 26 [55] (Vincent JA).
[15]See Robertson v The King [2024] NSWCCA 99, [27] (Harrison CJ at CL). His Honour considered s 421 of the Crimes Act 1900 (NSW) which is known as ‘excessive self‑defence’. This section operates to reduce the charge of murder to manslaughter. His Honour referred to the evidence that the alleged assailants (including the accused) instantly came to an agreement to defend themselves.
Considerations
The prosecution case is that Loulanting was killed pursuant to an agreement that had been formed before he arrived at Unit 2. There is a significant body of evidence that is capable of supporting such a conclusion. If the prosecution prove element one of murder on the basis of agreement, it is unrealistic to suggest the shooter somehow abandoned that plan and shot Loulanting in self‑defence. If the jury are not satisfied there was such an agreement, then what occurred in Unit 2 and what was in the mind of the shooter may take on greater relevance.
In my view, it is reasonably possible that Loulanting entered the unit in a posture of aggression, and reasonably possible he intended to seriously physically assault Mehdi in some way. However, beyond that, given the state of the evidence, one enters the realm of speculation. A jury may well put aside the evidence of Subu as to what happened inside the unit. If they do, there is no direct evidence as to what occurred. The forensic evidence is capable of establishing that Loulanting was slashed three times with a sharp implement, once along his left jaw line extending up to his ear, once to the upper side of his shoulder and once to his side hip area. He was shot once in the back of the leg and once to his chin area. The fatal shot to his chin or face area was described as glancing, and travelled across his face from right to left. Neither Subu nor Misawi were involved in any physical altercation inside the unit, meaning Loulanting was outnumbered: it was four against one. The accused, speaking collectively, were armed and three of them were masked. There is no evidence that any of the accused sustained any injury while inside Unit 2 on the morning of the shooting.
There is no evidence that Loulanting was visibly armed or used a weapon on this morning. He did have a box cutter in a sling bag and a large ceramic ball in one pocket, but neither of these objects would have been visible when he entered the unit. It is reasonably possible that Mehdi thought Loulanting was, or may be armed, given what had occurred on 8 July and Loulanting’s reputation as a violent standover man. It is also possible that Mehdi had shared with Qian what Loulanting was like, the events of the previous week and the threat Loulanting presented.
Section 322I(1) refers to ‘facts that, if they existed, would establish self‑defence’. It is not my role to engage in any form of fact‑finding.[16] However, the expression ‘facts that, if they existed’ must be referrable to the evidence. The evidence must permit the existence of the facts, including by way of the drawing of inferences, said to found self‑defence.
[16]Edmunds, 32 [169] (Emerton P, Taylor JA and Kidd AJA).
Even if Loulanting used a degree of unlawful force after entering the unit (and that, in my view, would involve speculation), there is no evidence that suggests it is reasonably possible that any of the accused believed it was necessary to fatally shoot Loulanting in self‑defence. In my view, a jury would simply be speculating if they were to conclude that the shooter, whoever that was, shot Loulanting to defend himself or another from the threat of really serious injury or death. That is, they would be forming opinions about what was in the mind of the shooter without having the necessary evidence to do so; they would be guessing.
In R v Kell (Ruling No 1) (‘Kell’),[17] Lasry J was asked to rule on whether self‑defence should be left for the jury’s consideration. In that case the two accused, Kell and Dey, were charged with the murder of TS. TS was the estranged partner of Kell’s sister, Sarah. TS attended Sarah’s house late at night, uninvited and in breach of an intervention order. Sarah was on the phone to Kell at the time and told him TS had just knocked on her window. Kell told Sarah, ‘we’re coming around’. Both Kell and Dey knew that Sarah claimed to be the victim of earlier violence by TS during the course of their relationship. This included stabbing her to the face. Both accused also claimed to be aware that TS habitually carried a knife.
[17][2008] VSC 518.
Kell and Dey arrived at Sarah’s house. The prosecution case, relying on the evidence of Sarah, was that Kell struck TS with a baseball bat ‘out of the blue’. There was then a scuffle, and the next thing Sarah remembered was seeing TS on the ground and Dey stabbing him with a knife. TS died from a fatal stab wound that pierced his right lung. Each accused denied stabbing TS and claimed the other was responsible. Kell’s version was found in his record of interview. Dey did not make a record of interview but gave evidence at trial. He said Kell had both the bat and the knife. He said there was a struggle between Kell and TS, during which TS gained control of the bat. Dey intervened to remove the bat from TS and then struck TS as hard as he could with the bat. He next saw Kell crouched over TS, and saw Kell slash and stab TS. This version of events was contradicted by the evidence of Sarah and not accepted by the prosecution (or by Kell). Neither accused sustained any injuries. They both left the premises, concealed the weapons, and later made efforts to clean and conceal their clothing.
The prosecution case was that Dey stabbed TS, and Kell was either acting in concert with, or aided and abetted, Dey. Alternatively, if the jury were unable to determine who stabbed TS, both accused were guilty of murder on the basis of acting in concert or aiding and abetting each other.
Lasry J framed the issue in the following way:
On this trial, I will direct the jury that they should consider whether they are able to be satisfied beyond reasonable doubt as to which of the accused applied the fatal wounds with the knife. If they can, then the question is whether self‑defence should be left in respect of that accused given the evidence. I have concluded that it should be.[18]
[18]Ibid 6 [19] (emphasis added).
His Honour held that there was evidence that would allow the jury to conclude that Kell inflicted the fatal stab wound (despite his denials) and, if they did, the evidence raised the reasonable possibility that Kell acted in self‑defence of himself, his sister and possibly Dey. If the jury concluded Dey inflicted the fatal stab wound, there was also evidence that he was acting to defend himself, Sarah and Kell. The proposed directions to the jury were tailored to a consideration of each individual accused’s state of mind.
In the circumstances here, a fairly insurmountable obstacle for both Mehdi and Qian is that no one admits being the shooter, and no one asserts anyone else was the shooter in circumstances that may give rise to self‑defence. Indeed, no one admits possessing any weapon, nor inflicting any of the injuries sustained by Loulanting. Unlike in Kell, no one has given an account of what occurred and no one describes Loulanting being the aggressor inside Unit 2. The other evidence in the trial, either directly or by way of inference, is not capable of establishing Loulanting attacked Mehdi inside Unit 2 such that the shooter believed Mehdi to be at risk of death or really serious injury. An inference is not a guess, and a reasonable possibility is not a speculative possibility.
The state of mind of ‘the accused’ cannot be assessed collectively. Each accused is entitled to a separate trial and separate consideration. In a case involving complicity by way of agreement, the acts of the parties to the agreement are attributed to each other — i.e. the actus reus of the crime — insofar as they are carrying out the agreement. However, liability of each participant is primary, not derivative. Liability remains personal to the accused and there is no attribution of mens rea between the parties.[19] Given the way the prosecution have framed their case here, it is accepted that the prosecution must prove that someone, pursuant to the agreement, committed the crime of murder. That is, they killed Loulanting with murderous intent and without lawful justification. The jury do not have to determine who that person was.
[19]Osland v The Queen [1998] CLR 316, [70] (McHugh J); Batak v The King 114 NSWLR 313, [90] (Kirk JA, Wilson and Ierace JJ).
In a case involving complicity by way of assisting, encouraging or directing, liability is derivative. It depends upon the attribution to the accused of the liability of another. If the principal offender shot Loulanting in self‑defence, then any secondary party could not be found guilty of murder. The guilt of the secondary party is dependent on the guilt of the principal offender who they have intentionally assisted, encouraged or directed. Again, the jury do not need to decide who the principal offender is. If they are satisfied that the accused whose case they are considering either shot Loulanting himself with murderous intent, or assisted another to murder Loulanting, but are not sure which, they can convict the accused in question.
In this trial, there is evidence which would allow a jury to conclude that either Mehdi or Qian was the shooter, but that evidence does not raise self‑defence. That evidence includes, in the case of Mehdi, that when he told Subu ‘I shot your boy’, he meant to admit he, himself, shot Loulanting. In the case of Qian, the evidence includes what he said to ‘Big Jase’. It would require the jury to accept that by saying, ‘I shouldve dropped her too’, he meant to admit that he had dropped (that is, shot) Loulanting minutes earlier.
A person can only act in lawful self‑defence if they carry out the conduct constituting the offence.[20] If Mehdi did not shoot Loulanting or even attack him with a weapon, then it is not sensible to suggest Mehdi acted in self‑defence. If Qian did not shoot Loulanting or even attack him with a weapon, then it is not sensible to suggest Qian acted in defence of Mehdi. Self‑defence is simply not sensibly open on any rational view of the evidence. The jury would be left to speculate as to whether Loulanting attacked Mehdi and the nature of that attack. They would have to surmise what the shooter saw or believed, and whether the shooter then shot Loulanting in defence of Mehdi, or perhaps in defence of themselves or another person, or some combination of these possibilities. If the shooter was Mehdi, they would have to speculate about what, if anything, Loulanting did and what Mehdi believed. The uncertain and imprecise nature of any hypothetical scenario underscores why self‑defence is no more than speculative here.
[20]Crimes Act, s 322K.
On the charge of affray, Mr McGrath relied on the evidence of Jabbour. Jabbour gave evidence that once everyone was outside in the street, Kolio hit someone because Zac was ‘on the floor’. In cross‑examination, Jabbour said Zac was being beaten up by the people who had the machetes. Kolio went to help Zac. Kolio ‘punched the guy out’, punched Subu, and got back in the vehicle. I note Kolio does not seem to support this account of what occurred. Kolio said Zac chased and then punched ‘the guy’.
Mr Hutton conceded that self‑defence should be left for the jury’s consideration in the trial of Mehdi on the charge of affray. In my view, the case on self‑defence is weak and tenuous, but in the circumstances I will leave it for the jury’s consideration.
On the charge of affray, Mr Casement submitted that he has satisfied the requisite evidentiary onus as it is reasonably possible that Qian was defending Mehdi when outside on Corrigan Road.
In my view, when one considers the evidence, that submission cannot be accepted. Jabbour said the ‘Asian man from Whitehorse Road’ had the gun. That person is Qian. Jabbour said that man was trying to break the passenger window of the Passat, and then hit and smashed the back window. Arguably, this is contradicted by the CCTV footage, which seems to show Nguyen closest to the Passat and Qian right behind him. However, there is no evidence that Qian went to assist Mehdi or thought it necessary to involve himself in the affray to protect Mehdi. Again, it is speculative, if not unrealistic or fanciful, and more than a speculative possibility is required. The CCTV footage, to the extent it captures the affray, does not raise the reasonable possibility that Qian was acting in defence of Mehdi.
Conclusion
On the evidence as is stands, and on the charge of murder, neither of the accused have satisfied the evidentiary onus of proof found in s 322I(1) of the Act. Self‑defence will not be left for the jury’s consideration on the charge of murder. Of course, if there is further evidence, the position may alter.
On the charge of affray, self‑defence will be left for the jury’s consideration in the trial of Mehdi but not in the trial of Qian.
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