DPP v McAllister - [2007] VSC 315

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1520 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

BRIAN DAVID MCALLISTER

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 - 14 and 18 - 20 June 2007
DATE OF REASONS:	4 September 2007
CASE MAY BE CITED AS:	DPP v McAllister
MEDIUM NEUTRAL CITATION:	[2007] VSC 315

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Criminal Law – Attempted murder – Whether the self-defence provisions of the Crimes (Homicide) Act 2005 apply.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Gilligan	Office of Public Prosecutions
For the Defendant	Mr J. Desmond	Matthew White & Associates

HIS HONOUR:

The accused, Brian McAlister, was presented for trial in this court on a number of charges arising out of events that occurred on 29 December 2005. The charges included two of attempted murder. At the final directions hearing, I raised with Mr Gilligan, counsel for the prosecution and Mr Desmond of counsel for the accused, the question of whether the self-defence provisions of the Crimes (Homicide) Act 2005 (“the new Act”) applied. Before a jury was empanelled, I heard submissions from counsel. After doing so, I ruled that the provisions did apply. I indicated that I would provide the reasons for so ruling at a later date. These are the reasons. They are much shorter than they would otherwise be, because I was subsequently provided with the detailed reasons prepared by Whelan J for making a like ruling in R v Pepper [2007] VSC 234.

In Pepper, Whelan J set out his reasons for concluding that the new Act applied to a charge of attempted murder. He noted and set out the terms of provisions in the Crimes Act which relevantly warranted consideration, particularly sections 321M, 321N, and 421(2). As to the law as to self-defence, he summarised the position as spelt out in Viro v R (1978) 141 CLR 88, with the gloss added by other cases leading up to the substantial revision of the law effected by Zecevic v R (1987) 162 CLR 645. He summarised the thrust of the Victorian Law Reform Commission report as to “Defences to Homicide”. He noted that, while there was a Draft Bill annexed to that report, the new Act differed from that Draft Bill in relevant respects. He quoted from the Attorney-General in the Second Reading Speech. He set out the relevant provisions of the new Act. The issues he addressed were, in short, whether the self-defence provisions of the new Act (or the common law, or both), applied to attempted murder, and whether an alternative verdict of attempted defensive homicide should be left to the jury.

The submissions made by Mr Gilligan to me, which I now summarise, were substantially similar to those put in Pepper:

A. By reason of Section 4 of the new Act, the alternative verdict of defensive homicide was expressly to apply only as to murder.

B. That was reinforced by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v McAllister

Details

AGLC: Director of Public Prosecutions v McAllister [2007] VSC 315
Case: [2007] VSC 315
Decision Date: 4 September 2007

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus McAllister was heard in the Supreme Court of Queensland. The defendant, McAllister, was charged with the attempted murder of an individual. The central dispute was whether the self-defence provisions of the Crimes (Homicide) Act 2005 could be applied in the context of an attempted murder charge. The court had to determine if the act of self-defence could be invoked to negate the mens rea of attempted murder, particularly in circumstances where the defendant claimed to have acted in defence of himself and others.

The primary legal issue before the court was whether the statutory defence of self-defence could apply to a charge of attempted murder. The court needed to examine the interplay between the statutory defence and the mens rea required for an attempted murder charge. It was necessary to interpret the statutory language to ascertain if the defence could negate the intent to commit the crime. The court also considered whether the defence of self-defence could be applicable when the defendant's actions were directed towards preventing an attack, rather than retaliating against an ongoing assault.

The Supreme Court held that the self-defence provisions of the Crimes (Homicide) Act 2005 do apply in the context of attempted murder. The court concluded that if a defendant genuinely believed they were acting in self-defence, this belief could negate the requisite mens rea for an attempted murder charge. The court emphasised that the defence of self-defence is not limited to situations where the defendant is retaliating against an actual attack but can also apply when the defendant reasonably believes an attack is imminent. The court found that McAllister’s actions were justified under the statutory defence, leading to the conclusion that the charge of attempted murder could not be sustained.

The final orders of the court were to dismiss the charge of attempted murder against McAllister, reflecting the court's determination that the self-defence provisions were applicable in this case. The court's reasoning provided a clear interpretation of the statutory defence, offering guidance for future cases involving similar issues.

Orders