DPP v Schaeffer
[2006] VSC 419
•24 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL LAW DIVISION
No. 1484 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS (VIC) | Plaintiff |
| V | |
| PETER SCHAEFFER | Defendant |
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JUDGE: | COLDREY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2006 | |
DATE OF RULING: | 23 October 2006 | |
| DATE OF REASONS CASE MAY BE CITED AS: | 24 October 2006 DPP v Schaeffer | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 419 | |
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Criminal Law - Ruling – Insufficient factual basis to support self defence or provocation – Defence counsel not wishing defences to be left to jury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Gyorffy | Solicitor for the Office of Public Prosecutions |
| For the Defendant | Mr J Montgomery | Tony Hannebery Lawyers |
HIS HONOUR:
Yesterday after legal discussion I ruled that I would not leave self defence or provocation to the jury. I think I should briefly put on record my reasons.
In my view, on the evidence that emerged in this trial, as distinct from the last trial, the factual basis for self defence was not present. In essence the accused left the Brockley Street premises in a rush, armed with two weapons. The deceased, who was unarmed, was struck blows with both weapons. The accused remained effectively unscathed. He professed a lack of memory as to the course of events.
The eye witness account of Smillie does not raise self defence, and the highest the neighbours get is of a scuffle or wrestle, the participants being unidentified.
The accused himself never claimed that he acted in self defence, and his vague claim that he was jumped and there was a wrestle, has to be seen in the context of a lying account in which he placed the knife in the hand of the deceased. Ultimately, his version was of an accidental stabbing.
It is possible, as Zecevic's case makes clear, for the aggressor to become the defender. However, in this case there is no sufficient factual basis to invoke this legal concept.
In relation to provocation, there is contemporaneous evidence of abuse directed towards the accused and his new girlfriend, Kimberley Terlich, by the deceased who also banged on her car roof. Additionally there is background evidence of two prior incidents affecting the girlfriend, including a beating some before months, at the hands of the deceased.
This may have angered the accused who, as I have indicated, apparently rushed from the house. But there was no claim by him that he lost his self control.
Even assuming on a best case scenario, that the jury could infer that a loss of self control had occurred, the accused faces the second wing of the provocation test (to use general terms). In my view, in the circumstances, no jury could conclude that an ordinary person of the accused's age and with ordinary powers of self control, might have lost that self control and performed the acts carried out by the accused on this night with a murderous intent.
In relation to both self defence and provocation, I am also influenced by the fact that experienced defence counsel does not argue that either defence is available. Moreover, counsel does not wish either of these defences to be left to the jury.
These are forensic decisions which are made, no doubt, bearing in mind the failure of each defence at the previous trial and their capacity to undermine the current major defences advanced on behalf of the accused, namely accident, and the lack of any specific murderous intent.
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