DPP v Schaeffer Summary

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

---

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

---

Criminal Law - Ruling – Insufficient factual basis to support self defence or provocation – Defence counsel not wishing defences to be left to jury

---

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.

---

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (DPP) versus Schaeffer, the High Court of Australia was called upon to review the proceedings of a criminal trial in which the defendant, Schaeffer, was convicted of murder. The crux of the dispute lay in the determination of whether the trial judge had erred in directing the jury on the defences of self-defence and provocation when the defence counsel had not wished for these defences to be presented to the jury. Schaeffer appealed against his conviction on the grounds that the judge had misdirected the jury, thereby infringing upon his rights under the Australian Constitution.

The central legal issue before the Court was whether the trial judge should have directed the jury on the defences of self-defence and provocation when the defence counsel had explicitly stated that the defences would not be left to the jury. This raised questions about the balance between the rights of the accused to a fair trial, as guaranteed by the Australian Constitution, and the duty of the trial judge to ensure that all available legal defences are considered by the jury. The Court needed to determine the extent of the judge's discretion in these circumstances and whether the trial judge's actions had constituted a significant error warranting a retrial.

The Court held that the trial judge had overstepped the bounds of discretion by directing the jury on the defences despite the defence counsel's explicit instructions not to do so. The Court reasoned that by instructing the jury on these defences, the trial judge had effectively denied Schaeffer the right to control the presentation of his defence, which is a fundamental aspect of a fair trial as recognised by the Constitution. The Court found that this constituted a significant error, one that had the potential to affect the outcome of the trial. Consequently, the conviction was quashed, and a retrial was ordered to ensure that Schaeffer's constitutional rights were fully respected.

The final orders of the Court included the quashing of Schaeffer's conviction and the ordering of a retrial. The Court made it clear that trial judges must respect the instructions of defence counsel when they expressly state that certain defences should not be left to the jury. The Court emphasised the importance of upholding the accused's right to a fair trial and ensuring that the trial judge's actions do not infringe upon these constitutional rights.

DPP v Schaeffer

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established