Edmunds v The King
[2025] VSCA 31
•11 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0238 |
| BIANNCA EDMUNDS | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | EMERTON P, TAYLOR JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2024 |
| DATE OF JUDGMENT: | 11 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 31 |
| JUDGMENT APPEALED FROM: | DPP v Edmunds (Supreme Court of Victoria, Lasry J, 17 December 2022) (Conviction); DPP v Edmunds (Ruling No 3) [2022] VSC 327R (Lasry J) |
---
CRIMINAL LAW – Appeal – Conviction – Murder – Applicant found guilty following trial by jury – Applicant encouraged principal offender to murder former partner – Applicant complicit in murder – Whether trial judge ought to have directed jury on self-defence – Threshold for evidential onus of self-defence – Whether evidence suggested reasonable possibility that victim’s conduct unlawful – No evidence suggesting reasonable possibility that principal offender believed it was necessary to shoot victim to protect himself from death or really serious injury – Principal offender acted in pursuit of original plan to kill – Leave to appeal refused.
CRIMINAL LAW – Whether direction on self-defence requested by defence counsel – Direction requested – Trial judge required to give jury requested direction unless good reasons for not doing so – Good reasons for not giving direction on self-defence – Jury Directions Act 2015, ss 12, 14.
Crimes Act 1958, ss 322I, 322K, 322L, 322N; Jury Directions Act 2015, ss 12, 14.
Zecevic v DPP (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Rohan (a pseudonym) (2024) 98 ALJR 429; R v Williams [2000] VSC 20; R v Yasso (2004) 10 VR 466; Anandan v The Queen [2011] VSCA 413; R v Miller [2019] SASCFC 91; Viro v The Queen (1978) 141 CLR 88; Robertson v R [2024] NSWCCA 99, considered.
---
| Counsel | |||
| Applicant: | Mr D Dann KC | ||
| Respondent: | Mr R Gibson KC with Mr J O’Connor | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
---
TABLE OF CONTENTS
PART A:. INTRODUCTION
PART B:. PROCEDURAL HISTORY
PART C:. THE THIRD TRIAL EVIDENCE
(1).... Background and context
(a) The applicant and Caposiena
(b) The applicant and Cassidy
(c) The parenting dispute
(2).... The plan to murder Caposiena
(3).... The text message on 12 March 2016
(4).... Travelling to Caposiena’s house on the day of the murder
(5).... Eyewitness account of the murder
(6).... Causes of deaths of Caposiena and Cassidy
(7).... Examination of the crime scene
(8).... The case against the applicant
PART D:. THE RULING ON SELF-DEFENCE
(1).... Procedural history
(2).... Statutory framework
(3).... First limb of the ruling: the lawfulness of Caposiena’s conduct (s 322L)
(4).... Second limb of the ruling: subjective belief that conduct necessary (s 322K)
(5).... A variation of the second limb of the ruling: Cassidy killed in pursuit of original design
PART E:. PARTIES’ SUBMISSIONS ON THIS APPLICATION
(1).... The applicant
(2).... The respondent
PART F:.. LEGAL FRAMEWORK
(1).... Common law and ‘reasonable possibility’ of self-defence
(2).... ‘Reasonable possibility’ of self-defence in the context of s 322L
(3).... The question of a reasonable possibility of self-defence is governed by s 322K
(4).... Interaction of ss 322I, 322K and 322L
(5).... Self-defence, original aggressor and original criminal design
PART G:. ANALYSIS
(1).... Two claims of self-defence
(2).... Self-defence and Caposiena’s stabbing of Cassidy (s 322L, s 322K)
(3).... Self-defence and Cassidy’s shooting of Caposiena (s 322K)
(4).... Did Cassidy even know Caposiena stabbed him?
(5).... Concluding observations
PART H:. FAILURE TO REQUEST SELF-DEFENCE DIRECTION?
(1).... The issue and parties’ arguments
(2).... Analysis
PART I:.. CONCLUSION
EMERTON P
TAYLOR JA
KIDD AJA:
PART A:INTRODUCTION
At approximately 7.30 pm on 12 March 2016, Glen Cassidy knocked on the door of a property owned by Michael Caposiena. Before answering, Caposiena armed himself with a carving knife. When Caposiena opened the front door, the pair were separated by a locked security screen door. After a short conversation, which did not appear heated, Cassidy asked Caposiena to shake his hand. Caposiena unlocked the security door and held out his hand. Cassidy grabbed Caposiena’s hand with some force and pushed him inside the house. A physical altercation immediately ensued. At some stage, Caposiena stabbed Cassidy a number of times. Cassidy, who had produced a firearm (a sawn-off shotgun[1]), then shot Caposiena to the head. The entire episode lasted seconds. Both men died at the scene.
[1]Just over 50 cm in length.
The applicant was charged with the murder of Caposiena.
The prosecution case was that Cassidy attended Caposiena’s property to murder Caposiena. Cassidy ultimately carried out that purpose, although he was fatally wounded in the process.
The prosecution alleged that the applicant was involved in the commission of the offence of murder by Cassidy. She was married to Cassidy. Caposiena was her ex-partner. The prosecution described the applicant as being ‘behind the scenes pulling the strings’ and the ‘driving force behind the murder’. It argued that she was criminally responsible for the murder of Caposiena on one of two bases:
•she entered into an agreement, arrangement or understanding with Cassidy to murder Caposiena; or
•she intentionally assisted, encouraged or directed Cassidy to murder Caposiena.
On 17 December 2022, the applicant was found guilty of the murder of Caposiena. On 3 October 2023, she was sentenced to 26 years’ imprisonment with a non-parole period of 20 years.
The applicant makes an application for leave to appeal against conviction on the sole ground that the trial judge erred in refusing to direct the jury on the issue of self-defence. She contends that the state of the evidence was such as to suggest a reasonable possibility that Cassidy was acting in self-defence when he shot Caposiena. The applicant contends that the trial judge ought to have acceded to the defence request to direct the jury on the issue of self-defence. She argues that his failure to do so has occasioned a substantial miscarriage of justice — if the prosecution was unable to exclude the defence of self-defence beyond reasonable doubt, the jury would have been required to return a verdict of not guilty on the basis that the principal offender, Cassidy, was not criminally responsible, or, alternatively, on the basis that Cassidy was not acting in furtherance of the agreement when he killed Caposiena.
Having regard to the totality of the evidence, and mindful of the constitutional role of the jury in determining questions of fact, there is simply no evidence in this case that suggests a reasonable possibility that Cassidy was acting in self-defence at the time he shot Caposiena. Cassidy attended the property with the intention of killing Caposiena. That is what he did. Cassidy was at all material times acting in pursuit of the criminal design he had developed with the applicant. Caposiena’s actions did not alter that reality.
The judge was correct to refuse to leave self-defence to the jury for their consideration.
For the reasons that follow,[2] we would refuse the application for leave to appeal against conviction.
[2]For ease of comprehension, we will use the male pronoun in our analysis of the law of self-defence, conscious that the two protagonists involved in the physical conflict in this case were male. Also, again for reasons of readability, we will refer to ‘the accused’ and ‘the victim’ in explaining the law. We are mindful, however, that Cassidy was not the accused (i.e. applicant) in this matter, and that the applicant contends that Caposiena was not the victim.
PART B:PROCEDURAL HISTORY
The applicant faced three trials.
The first trial ran to its conclusion, but the jury were discharged because they were unable to reach a unanimous verdict. The second trial was aborted following a successful defence application to discharge the jury. The third trial resulted in the applicant’s conviction.
Ordinarily, an appeal of this nature would turn on what occurred during the third trial. However, the previous trials assume some significance here; it is necessary to understand what occurred in those trials in order to understand why the judge did not direct the jury on the issue of self-defence in the third trial (or, more accurately, why defence counsel appearing at the third trial did not formally agitate the issue by requesting a direction on self-defence).
The following section summarises the evidence as it emerged at the third trial. Self-evidently, the fundamental question raised by this appeal — namely, whether the trial judge should have directed the jury on the question of self-defence — must be determined by reference to the evidence before the judge (and jury) at that (third) trial.
The evidence from the first and second trials will only be referred to where it is relevant to, or would aid an appreciation of, the issues raised on this appeal.
PART C:THE THIRD TRIAL EVIDENCE
(1)Background and context
(a)The applicant and Caposiena
The applicant and Caposiena met in early-2012. They were engaged to marry, but their relationship ended the day before their engagement party. At the time of their separation, the applicant was pregnant. She gave birth to a boy, Alex,[3] in mid-2013. Caposiena was the father.
[3]A pseudonym.
Caposiena did not have any involvement with Alex for some time. In February 2013, prior to Alex’s birth, Caposiena commenced a relationship with Silvana Silva. It was not until March 2014, when Alex was nine months old, that Caposiena took steps to become involved in Alex’s life.
The applicant and Caposiena had an acrimonious separation. There was significant animus between the pair. There was evidence that their relationship was punctuated by elements of family violence. The primary source of their discord, however, was the parenting dispute, which the prosecution advanced as the primary motive for the murder. We will return to this.
(b)The applicant and Cassidy
In December 2014, Cassidy and his wife separated. Shortly after, he commenced a relationship with the applicant.
Cassidy had two daughters. Each of them gave evidence at trial. They, along with Cassidy’s mother, Maree Cassidy, lived with Cassidy and the applicant at various times.
Initially, the applicant and Cassidy lived in Rochester. They moved to Shepparton in May 2015. The applicant told police that they had moved because she was being threatened by Cassidy’s ex-wife. However, one of Cassidy’s daughters gave evidence that the applicant told her that they had to leave Rochester because Caposiena had discovered the whereabouts of the applicant and her children. The applicant was worried about what Caposiena would do to her. Cassidy’s daughter said that the applicant asked her, ‘do you want to see us dead on the ground and [Alex] gone[?]’.
The applicant and Cassidy married on 27 February 2016, some two weeks prior to the murder of Caposiena. There was evidence that, around that time, the pair were contemplating a move to Darwin.
By all accounts, Cassidy was fond of Alex and looked after him like he was his own son.
(c)The parenting dispute
In November 2012, the applicant applied for a family violence intervention order against Caposiena. The applicant was pregnant with Alex at the time of the application.
In July 2013, the Magistrates’ Court granted the application and made the order. Among other things, the order prohibited Caposiena from communicating with or contacting the applicant, and from going within or remaining within 100 metres of any place where the applicant lived or worked. In its practical operation, the order prevented Caposiena from spending time with Alex, who resided with the applicant.
At trial, there was evidence that Caposiena was unable to have access with Alex because of the intervention order. The intervention order lapsed in July 2014.
At some point in 2014, Caposiena commenced proceedings in the Family Court for parenting orders concerning the care of Alex. After he commenced proceedings, arrangements were made, pursuant to an order of the Family Court, for Caposiena to attend supervised access visits at Berry Street in Shepparton. Among other things, Berry Street provides supervised visits and changeover facilities for parents in conflict.
The first supervised visit occurred on 30 August 2015. Caposiena attended 12 or 13 supervised visits in total. The last supervised visit he attended (along with Silva) was on 11 March 2016 — the day before his death. Notably, that was to be the final supervised visit; from that point onwards, the applicant and Caposiena were to ‘self-manage’ visits.
There was ample evidence, including from the applicant’s sister and mother, that the applicant was resistant to Caposiena’s efforts to involve himself in Alex’s life.
The applicant’s sister, Kirinia Edmunds, gave evidence that the applicant told her that she (the applicant) wanted Caposiena ‘out of the way’ and ‘I want him gone’. On the evidence of this witness, the applicant had said Caposiena’s access was ‘getting in the way of her life’ and ‘lifestyle’. The applicant said ‘I wish [Caposiena would] just leave us alone and not try for [Alex]’. She ‘wished the problem would just disappear and that [Cassidy] would be the boys’ only father’. Kirinia Edmunds said that, when the applicant said these things, including in front of Cassidy, she (the applicant) was ‘always angry’.
The applicant’s mother, Ellen Edmunds, gave similar evidence. She said that the applicant told her that she (the applicant) did not want Caposiena to see Alex because Caposiena was violent. The applicant also indicated that Caposiena’s ‘sudden onset of trying to have access visit[s] was becoming a hassle with her life with [Cassidy]’. She recalls the applicant saying that she (the applicant) wished Caposiena would ‘fall off the face of the earth’.
Cassidy’s mother and two daughters also gave evidence of the applicant’s negative attitude towards Caposiena.
(2)The plan to murder Caposiena
Several witnesses gave evidence that the applicant encouraged Cassidy to murder Caposiena.
The prosecution called evidence from two prison informers, each of whom was in custody with the applicant while she was on remand. They gave evidence that the applicant admitted to her involvement in the murder of Caposiena. The collective effect of their evidence was that the applicant had convinced Cassidy to murder Caposiena through a variety of tactics and demands. According to the prison informers, the applicant had exerted control over Cassidy using a range of taunts and sexual activity.
One of the prison informers said that the applicant told her that she (the applicant) ‘could wrap [Cassidy] around her little fingers’. The applicant told her that she (the applicant) asked Cassidy to murder Caposiena, but that he initially refused. However, the applicant said that she kept at Cassidy and, in the witness’ words, ‘provoked him … with, um, words and talking about how her ex was trying to get her back, that he was better in bed.’ The witness gave evidence that the applicant said that she (the applicant) told Cassidy:
You’re the fucking man here. You’re the head of this family, not him. Now, now, it has to be now. If you don’t man up and go to his house and shoot him dead, then you’re a pussy and you don’t love me and I will leave you.
The applicant told the witness that, in response, Cassidy said ‘Watch what I’m going to do’.
Cassidy’s good friend, Paul Bonner, gave evidence that supported aspects of the prison informers’ accounts. He said that Cassidy had told him on a number of occasions that the applicant was pressuring him to do something about Caposiena. On one occasion, Bonner was with Cassidy and the applicant when the applicant said the following to Cassidy:
If you were a real man, you’d – you’d take care of it, you’d deal with it and you’d sort it out, if you had any balls, you know, you’re spineless, you’re a coward, you’re piss-weak.
Finally, Cassidy’s mother gave evidence that, on one occasion:
Biannca got into a rage and slammed the bedroom door and said lots of things. She hated him, she wished he was dead. It went on for 15 to 20 minutes. She told Glen she wished he’d kill Michael. More than once she repeated that. I told her it was a stupid idea. She didn’t like [Alex] having to visit his father and Glen would get so upset he’d jump on his Harley and ride away when they were fighting.
The picture painted by each of these witnesses is that the applicant wanted Cassidy to kill Caposiena. Cassidy was initially opposed to that, but — as will become apparent — ultimately agreed.
It is unclear when the plan to murder Caposiena was first conceived. However, it appears to have been in an embryonic stage in at least December 2015.
A document located on Cassidy’s phone, which was referred to at trial as the ‘to-do list’, was dated 26 December 2015. The to-do list read (sic):
Opsticols
One bulet
Getting him alone
Body
TransportThings I want to do before the job
Financial for biannca and kids
Have baby or atleast be pregnet
Get married
Have A’s much sex as possibleAnswer
Rode of a mornings
Knife
Waters
Bike or car that’s not mine no plate
Jobs for haThe prosecution contended that the list of items under ‘Opsticols’ (intended to mean ‘obstacles’) was referrable to the proposed murder of Caposiena. Similarly, the reference to ‘Bike or car that’s not mine no plate’ was said to embody Cassidy’s plan to travel to Melbourne in a vehicle that could not be linked to him.
Although there was evidence that the applicant continued to voice her dislike of Caposiena, there was little to no evidence of planning between 26 December 2015 and 2 March 2016. Bonner gave evidence that he visited Cassidy and the applicant on an unspecified date shortly before the murder. He said that the applicant came outside and showed him a firearm that she had wrapped in a towel or blanket. She asked him whether he would be able to get a ‘magazine’ for it. Bonner told her to ‘fuck off’. The prosecution argued that this was evidence of the applicant’s knowledge of, and involvement in, the plan to murder Caposiena.
From 2 March, Cassidy travelled from Shepparton to Melbourne on several occasions. The prosecution alleged that the purpose of this travel was to conduct reconnaissance on Caposiena’s premises. The prosecution’s case in this respect was supported by images captured by traffic cameras, as well as a series of recorded telephone conversations between Cassidy and the applicant. These conversations occurred prior to the murder of Caposiena. For reasons that are not entirely clear, Cassidy had recorded them using his phone.
On their face, and divorced from any context, the recorded conversations were not incriminating. However, the prosecution alleged that the pair were talking in code. Specifically, they were said to have used the words ‘job’ and ‘work’ to refer to the murder, and ‘workers’ to refer to Caposiena and Silva.
It suffices to give only a few examples.
Before doing so, it is necessary to say something about Cassidy’s employment. In the period leading up to the murder, Cassidy told his daughters that he (Cassidy) was doing ‘demolition’ work in Melbourne. One of his daughters also gave evidence that he (Cassidy) was travelling from Shepparton to Melbourne in the applicant’s car.
Thus, when Cassidy refers to ‘work’ and ‘workers’, he had to be talking about one of two things: a demolition job; or the proposed murder of Caposiena (including his surveillance of Caposiena between 2 and 12 March 2016). The prosecution argued that the latter was the only reasonably available inference. It pointed to, first, the timing of the calls, and, second, the inherent implausibility of Cassidy travelling two hours each way to Melbourne only to discover that the job could not be completed. There was also evidence, given by the informant, that there was no indication — by way of telephone records or otherwise — that Cassidy was involved in demolition work.
One of the recorded conversations occurred at 8.23 pm on 5 March 2016. It included the following exchange:
EDMUNDS:
Go home.
CASSIDY:
Well, if things don’t improve I will go home and then come back early in the morning.
EDMUNDS:
Really?
CASSIDY:
Yeah, yeah. Virtually no-one - - -
EDMUNDS:
It’s that crap, is it?
CASSIDY:
No-one showed up.
EDMUNDS:
Oh - - -
CASSIDY:
Yeah, not a sight of anyone - - -
EDMUNDS:
- - - that’s a shame.
CASSIDY:
- - - so I’m here at work all by myself.
EDMUNDS:
That’s a shame.
CASSIDY:
Yeah, not even - - -
EDMUNDS:
(Inaudible)
CASSIDY:
- - - at the other place.
EDMUNDS:
Well, maybe – it’s Saturday night, maybe everyone had a different change of plans and they’ll be home later.
CASSIDY:
Yeah, that’s why I’m hanging around till later. I’ll hang around till about 11 o’clock.
EDMUNDS:
After dark usually people head home.
CASSIDY:
Yeah, well, it’s dark now.
…
CASSIDY:
I’ll hang around until about 11, 12 o’clock and if no-one showed up by then just gunna call it quits for the night.
EDMUNDS:
Yeah, get your sleep. …
Shortly after 11 pm on 6 March 2016, Cassidy and the applicant had a conversation that included the following exchange:
EDMUNDS:
How’d you end up going?
CASSIDY:
It didn’t go really well.
EDMUNDS:
No?
CASSIDY:
Nuh. People not showing up to work annoys the shit out of me.
EDMUNDS:
Hm.
CASSIDY:
Yeah. It’s just crap.
EDMUNDS:
Yeah, it is.
CASSIDY:
So I figured if – if they’re not going to show up for work then – by now, they’re not going to show up at all.
EDMUNDS:
I don’t know.
CASSIDY:
It’s 11 o’clock so - - -
EDMUNDS:
Mm.
…
CASSIDY:
So – but I did find out there’s a dog.
EDMUNDS:
Yeah?
CASSIDY:
Yeah. That wasn’t there before.
EDMUNDS:
Mm.
CASSIDY:
Like, next door.
EDMUNDS:
Yeah.
CASSIDY:
I don’t know whether to babysit the dog or what but – yeah. Next door to where the house is coming down, a frickin’ dog barking so I couldn’t even really get to the house.
EDMUNDS:
Mm.
CASSIDY:
It’s annoyed me ‘cause I was going to go in and see what needed pulling down - - -
EDMUNDS:
Mm.
CASSIDY:
- - - and just wait there for ‘em to work – come to work.
…
EDMUNDS:
Are you going to keep trying or leave it for a while?
CASSIDY:
I don’t want to leave it at all - - -
EDMUNDS:
You go back tomorrow?
CASSIDY:
Yeah. This has to be done,
EDMUNDS:
I know.
CASSIDY:
Yeah. Well – yeah, yes. So now I have to go back again tomorrow night and get this finished.
Another conversation was recorded at 2.33 pm on 7 March 2016. It included the following exchange:
CASSIDY:
Yeah. Well, I’ll get this job finished today so that we don’t have any - - -
EDMUNDS:
I hope you do, I want to celebrate.
CASSIDY:
Yeah.
EDMUNDS:
I bought you a present.
CASSIDY:
I want to celebrate too, friggin’ trust me. But – yeah. Oh well, trust me this interview, I’ll try me hardest. Yeah. So there’s no work obligations down here and we can shift up.
EDMUNDS:
Mm.
CASSIDY:
Yeah, trust me, it’s – I would do it.
EDMUNDS:
Just don’t get all funny after the job.
CASSIDY:
No, nah …
EDMUNDS:
Yeah. Don’t hurt yourself.
CASSIDY:
No, that won’t happen either.
EDMUNDS:
I mean, I know it’s a pretty mental job that you’re doing but physically and mentally and all that don’t hurt yourself.
CASSIDY:
No, she’ll be right, yeah.
EDMUNDS:
Yeah.
…
CASSIDY:
I just hope the workers show up tonight otherwise I’m stuffed.
EDMUNDS:
Yeah.
CASSIDY:
Yeah.
EDMUNDS:
Monday night – well, they should.
CASSIDY:
Well, they should’ve last night.
EDMUNDS:
Yes, but people don’t work all the time, you know, so they got more of a luxury life.
CASSIDY:
Yeah.
EDMUNDS:
They don’t have to be back on a certain day - - -
CASSIDY:
Yeah.
EDMUNDS:
- - - so they think.
CASSIDY:
Yeah. It just shits me ‘cause, like, time and a half on Sunday so you think they would’ve been there.
EDMUNDS:
Mm, mm, yeah.
CASSIDY:
Yeah. So what I’m gunna do is I’m gunna get there and if I can I’ll – I’ll get in and wait for ‘em. If they don’t show up I’ll come home and if they show up I’m already there ready.
Another conversation was recorded at 8 pm on 7 March 2016. It included the following exchange:
EDMUNDS:
Oh well, just get it done then that way we don’t have to worry about anything.
CASSIDY:
Yeah.
EDMUNDS:
It’s one night …
CASSIDY:
Hey?
EDMUNDS:
Just go to work that way it’s over and done with and we don’t have any more nights like this.
CASSIDY:
Yeah.
EDMUNDS:
It’s getting to everyone I think.
CASSIDY:
Yeah, it is. I – I am completely over this job. I’m over it there’s got to be - - -
EDMUNDS:
Well, just finish it.
CASSIDY:
I’m trying.
EDMUNDS:
And then concentrate on the next – you know, you – you can concentrate going to – more applying for jobs and maybe … I don’t know.
CASSIDY:
Yeah.
EDMUNDS:
Finish this job and move on.
CASSIDY:
Mm.
EDMUNDS:
Just let the future be better.
CASSIDY:
Yeah, Yeah.
EDMUNDS:
We need – we need less stress in our life and I’m not looking forward to having to go to Legal Aid and getting it all …
CASSIDY:
Yeah. We still have to do that.
EDMUNDS:
I know but I’m sick of – you know, I don’t wanna have to – the rest of my life is gunna be like that.
The final recording between the pair was made at 2.23 pm on 11 March 2016, the day before the murder. It included the following exchange:
CASSIDY:
I – I know where to work now – where work is.
EDMUNDS:
Awesome.
CASSIDY:
Yeah. So, yeah, it was quite funny – oh, not funny but - - -
EDMUNDS:
Why?
CASSIDY:
- - - no, it worked out really good.
EDMUNDS:
O.K.
CASSIDY:
Like – yeah.
EDMUNDS:
You didn’t get list you got directly there?
CASSIDY:
Yeah, directly there but I – I actually – like I was ahead of time all the way so a couple of other workers passed me just as I got there so they had no idea.
EDMUNDS:
Oh, O.K.
CASSIDY:
Yeah. So ‘cause like I was just taking me time getting there thinking oh, yeah, they’ll be – if anyone’s going to work they’ll be coming past shortly and just before I got to her street they came past me and didn’t even look.
EDMUNDS:
Mm.
CASSIDY:
Just … I suppose ‘cause I wasn’t behind them.
EDMUNDS:
Is it where you thought it was?
CASSIDY:
Yeah, it’s where the work used to be.
With respect to this call, there was evidence that Caposiena and Silva attended a supervised access visit at Berry Street in Shepparton on 11 March. Having regard to the content of this call, the prosecution alleged that Cassidy was aware of this and travelled to Melbourne at the same time as Caposiena and Silva.
The prosecution alleged that the recorded conversations, in combination with the other evidence referred to earlier in these reasons, supplied cogent evidence to support a finding that the applicant and Cassidy were totally committed to their plan to murder Caposiena. This was more than just talk; it was the actual implementation of a criminal design.
(3)The text message on 12 March 2016
At 12.23 pm on 12 March 2016 (the day of the murder), Cassidy sent a text message to the applicant. The text message read:
Bian[n]ca I love you so much you have no idea I’m about to do something that you would consider absolutely fucking stupid but I can’t put up with his shit anymore I can’t be a part-time parent to [Alex] if I get caught I want them to know you had nothing at all to do with this this is my choice my decision you know nothing about it please I can see the stress of losing our first baby due to him and I could never forgive him for that and it scared that one day he will try to take my boy from me has pushed me over the fucking edge please know that what I do I do for you even though you wouldn’t agree I do love you so much
At trial, there was considerable debate about who composed and/or sent this text message. The prosecution contended that Cassidy — who was ‘functionally illiterate’ — could not have composed the message without the assistance of another person. The prosecution, in turn, suggested that the applicant assisted Cassidy to draft the text message with a view to distancing herself from what was about to occur.[4] While defence counsel agreed that Cassidy was unlikely to have crafted the text message, they contended that the most likely explanation (taking into account that the contents appeared to be an ‘unpunctuated stream of consciousness’) was that Cassidy did so using Google’s voice-to-text feature.
[4]The applicant responded to the text message at 1.08 pm, stating: ‘Dont be so bloody stupid glen. U married me knowing [Alex] will be seeing him even though its upsetting us all here. Dont you dare try and manipulate me into feeling sorry for you by saying such idiotic things. I will not tolerate being yelled at. Enjoy your drive and take your fucking time. Im over it.’
For present purposes, it does not matter whether the text message was composed by Cassidy, the applicant, or both. It was never contended that Cassidy was unaware of the contents of the text message. Nor was it contended that the text message (viewed in light of the whole of the evidence) was other than an oblique reference to Cassidy’s intention to kill Caposiena.
(4)Travelling to Caposiena’s house on the day of the murder
Some time after the text message was sent on 12 March 2016, Cassidy travelled from Shepparton to Melbourne. He was driving a Holden Apollo, which belonged to the applicant’s grandmother. This was the same car that he used when conducting reconnaissance on Caposiena’s property between 2 and 12 March 2016.
When he arrived in Westmeadows, he parked the car in Liddell Street, which was one street over from Caposiena’s house on Pascoe Street.
(5)Eyewitness account of the murder
Caposiena’s partner, Silva, was at Caposiena’s home on the night of the murder. She was the only witness to what occurred.
At approximately 6.45 pm[5] on 12 March 2016, Silva was sitting in the lounge room of Caposiena’s home. Caposiena was with her. A window facing the street was to her left. She said that she looked outside and saw Cassidy walk past the house. He was not carrying anything at the time.
[5]This was Silva’s estimate. CCTV footage from a neighbouring property depicts Cassidy walking past the house at 7.18 pm.
Silva alerted Caposiena to what she had seen. Caposiena was surprised; as far as he was concerned, there was no reason for Cassidy to be in the area. Caposiena suggested that Silva was ‘paranoid’, stating ‘[i]t’s not him’ and ‘he couldn’t be walking around here’.
Caposiena opened the front door and looked outside. He did not see Cassidy. He locked the security door, closed the front door, and returned to the lounge room. Caposiena told Silva that she was ‘making [him] feel paranoid’. He reassured her that he (Cassidy) would not come back. He told her to relax and continue watching TV.
Around five or 10 minutes later,[6] Silva saw Cassidy walking up the pathway to the front porch. To do so, he had to walk past the lounge room window.
[6]Again, this was Silva’s estimate. The CCTV footage depicts Cassidy walking past the house (for a second time) at 7.27 pm. He was carrying the white plastic bag.
When Cassidy walked past the window, Silva saw him carrying a white plastic bag. An inference can therefore be drawn that Cassidy made a decision to retrieve the plastic bag from its location before walking up to Caposiena’s property. When it was examined at the crime scene, the plastic bag was found to contain a knife and gaffer tape. At the time he knocked on the door, Cassidy was also carrying a firearm. As will become apparent, the firearm must have been concealed (although readily accessible) within the plastic bag or somewhere on Cassidy’s person.
In examination-in-chief, Silva gave the following account of what occurred after Cassidy walked up to the door:
SILVA:
… He rang the doorbell. He rang the doorbell. And ah, when he rang the doorbell, Michael headed to the kitchen and grabbed one of our kitchen knives. And walked across, and I just looked at him and said, ‘Just don’t open the door. Please don’t open the door’. That’s what I said to him. So, then he went to the front door. To open the – he opened the door by Michael’s left-handed, so he was carrying, holding the knife in his left hand, behind the door, the wooden door. So, no one could see that he was actually carrying – holding a knife. So, then that’s when a conversation started.
PROSECUTOR:
From where you were, could you hear both sides of the conversation or only one side?
SILVA:
One side, because it was just – it was – he was talking very low, ah, it was very kind of mumble-ly, very muffled. I couldn’t hear much.
PROSECUTOR:
Is that Glen or is that Michael?
SILVA:
It was Glen.
PROSECUTOR:
Yes, so you could hear what Michael was saying?
SILVA:
Ah, Michael said, ‘I’m sorry, but there’s nothing I can do for you’.
PROSECUTOR:
And what happened next?
…
SILVA:
I remember him asking me [to] turn off – just put the volume down, the tv. It was too loud, because he couldn’t even hear what Glen was talking to him about.
PROSECUTOR:
Yes?
SILVA:
So, then I put the TV on mute, but still, I couldn’t hear what he was talking to Michael, and I still – the only thing I could hear was Michael saying for the second time, ‘I’m really sorry, there’s nothing I can do for you’.
PROSECUTOR:
At that time when that conversation was taking place, was the safety door, the security door open or shut?
SILVA:
No, it was shut.
PROSECUTOR:
And Michael had the front door open?
SILVA:
Yes.
The witness then gave the following account about Caposiena opening the security door:
PROSECUTOR:
Yes, all right. Tell us again, what happens next?
SILVA:
Then I could hear Glen asking about the handshake, to give a handshake. I found it a bit strange, but Michael opened the door. He opened the latch of the safety door and then he opened the door. So, then he just opened his hand to Glen. So, that’s when he pushed Michael inside the house.
PROSECUTOR:
Just so we’re clear, Michael unlatched the security door?
SILVA:
And opened the door.
PROSECUTOR:
And held out his hand in a handshake gesture?
SILVA:
Yes.
PROSECUTOR:
And then what did Glen do with Michael’s hand?
SILVA:
He – he grabbed it like very strongly and then he just pushed him inside the house.
…
PROSECUTOR:
So, when Glen pushed Michael inside the house where did they go? Did they go towards the lounge room, or did they stay near the door, or did they head up towards the dining, kitchen area?
SILVA:
Towards the dining.
PROSECUTOR:
You said that Glen was holding Michael’s hand quite tight. Is this the right hand?
SILVA:
Yeah, Michael [gave] his right hand to the point he was still holding the knife [in] his left.
PROSECUTOR:
What was Glen doing with his left hand, could you see?
SILVA:
He – the gun – the gun was in the bag and it was just on the – he was holding the gun and pointed towards Michael – Michael’s head.
Silva said that she got up and walked from where she was sitting to the archway between the lounge room and the dining room. She then described what she saw as follows:
SILVA:
… [] then they were in front of me, and I heard the noise of the firearm and I heard the shot – froze , I just – I just saw Michael trying to stand up – when he just walked the first step and then my only reaction was to rush to the door and try to call someone for help. So I did. …
As for the duration of the struggle, Silva said the following:
PROSECUTOR:
Are you able to tell us how long it took from the time you saw Mr Cassidy grab Mr Caposiena’s hand to the time that the gunshot went off? How short or long a time was that?
SILVA:
It was a matter of seconds.
…
The following evidence was adduced from Silva in relation to her momentary loss of sight of the struggle:
PROSECUTOR:
… when the two men, Michael and Glen come from the front door and head towards the kitchen area, is it correct to say that you lose sight of them when they’re behind [the dividing wall between the lounge room and the dining room], for a second or two?
SILVA:
Can you – can you repeat the question, please.
PROSECUTOR:
When the two men went from the front door to the dining area?
SILVA:
Yes.
PROSECUTOR:
Did you – from where you were, did you keep constant vision of them or did they disappear behind the wall? If you’re not sure, you can say so?
SILVA:
I’m not sure.
In cross-examination, Silva’s account of what occurred in the house was largely unchallenged. Indeed, defence trial counsel accepted all material aspects of her evidence. The focus of cross-examination was on what Silva did not observe when Cassidy and Caposiena were locked in arms.
Silva gave evidence that when she observed the men at the front door, she did not see what was inside the plastic bag.
She said that at the time Cassidy was holding Caposiena’s hand with his right hand at the front door, she could not recall whether Cassidy was holding the plastic bag in his left hand.
After she stood up and walked over to the archway between the lounge room and the dining room (on the other side of the dividing wall), she said this about her observations of the firearm:
DEFENCE COUNSEL:
And when you get to the point about where the two is marked on that diagram that’s where you were when you first saw the gun, wasn’t it?
SILVA:
Yes.
DEFENCE COUNSEL:
So you were just inside the lounge room, but at the large archway. Is that right?
SILVA:
Yes
DEFENCE COUNSEL:
And they’re both in front of you but on the dining room side, near the red Vespa picture?
SILVA:
In front of me.
She was then cross-examined about her observations of the shooting as follows:
DEFENCE COUNSEL:
And when you first saw the gun, from that position where the two is marked, you tried to move towards the kitchen. Is that right?
SILVA:
No. I stopped, I froze. My first reaction was stopping because I saw – he pointed his – he pointed a gun towards Michael’s head and Michael, with his right hand, was trying to hold his hand and avoid the – the shotgun
DEFENCE COUNSEL:
Okay. So at that point when you saw the – when you first saw the gun you say you froze. You weren’t able to do anything?
SILVA:
No.
DEFENCE COUNSEL:
Is that right?
SILVA:
Yeah, correct.
DEFENCE COUNSEL:
And then the shot went off?
SILVA:
Yes
Silva confirmed in cross-examination that she did not see Caposiena stab Cassidy; her only ‘focus point’ was the firearm.
We pause here to make some observations about the effect or import of Silva’s account:
•In examination-in-chief, Silva said that she could not recall if she lost sight of the men.
•However, it is common ground on this application that she must have lost sight of them. Silva said that she was sitting on a seat in the lounge room when she saw Cassidy push Caposiena into the dining room. There was a short dividing wall between the dining room and the lounge room. Given her position at the time, Silva must have lost sight — however momentarily — of Cassidy and Caposiena when they were in the dining room at a position directly behind the dividing wall. It was only when Silva stood up and walked over to the archway between the dining room and lounge room that she was able to resume her observations of what was occurring.
•It is common ground that the effect of her evidence is that she did not see the firearm while Cassidy and Caposiena were at the front door or during the first moments of the struggle when Cassidy grabbed Caposiena and pushed him into the house. She saw the firearm for the first (and only) time after she had got up from her chair and saw them in the kitchen area (near to where Cassidy was shot).
•It is common ground that the effect of her evidence is that she never saw Caposiena stab Cassidy.
We return to her narrative.
Immediately after witnessing Cassidy shoot Caposiena, Silva ran to the front door. She began to scream for help. It was at this point that Cassidy turned his attention to Silva.
Silva gave evidence — which was not the subject of challenge during cross-examination — that Cassidy attacked her. He put the firearm to her head and pulled the trigger. She said that the shot did not fire. She said that Cassidy then commenced a ferocious physical assault. He grabbed her by the hair, repeatedly forcing her back into the door and wall. He then began to hit her head against the step of the front porch. Once he turned her around, he started to hit her head against the ground. Silva thought that she was going to die.
Two of Caposiena’s neighbours — Garry Walker and Ingrid Walker — heard the commotion and went outside to see what was happening. Each of them gave evidence at trial.
Garry Walker and Ingrid Walker lived across the road from Caposiena. From his veranda, Garry Walker could see Silva being dragged into the house. He said she was on her ‘backside’ and was being pulled by her hair. She was screaming. Ingrid Walker described hearing a woman’s scream, which ‘sounded like someone was murdering a dog’. Both witnesses ran across the street and up to Caposiena’s house.
Ingrid Walker said that she saw Cassidy ‘bashing the shit out of a woman’s head and bashing her on the floor’. She described Cassidy standing over Silva, grabbing her by the hair and ‘repeatedly putting her head to the concrete’.
Garry Walker intervened. He said that he saw Cassidy ‘belting into the girl’, who was on the ground. He said that he grabbed Cassidy from behind, ‘like a bear hug’, and carried him outside. He then pinned Cassidy to the ground. At this stage, Ingrid Walker had returned to her home to contact the police. She did not see anything else.
While he was holding Cassidy, Garry Walker noticed that Cassidy was bleeding. He said that Cassidy was saying ‘she stabbed me’. He took ‘she’ to be a reference to Silva. Defence counsel cross-examined Garry Walker about this aspect of his evidence. It was suggested that he may have misheard what Cassidy had said. However, his evidence was unequivocal: he heard Cassidy say ‘she stabbed me’. The relevant part of his cross-examination was as follows:
DEFENCE COUNSEL:
And you think that he said, ‘She stabbed me’?
GARRY WALKER:
From what I can recall, yes. The first [thing] that he had actually said to me was that she stabbed me.
DEFENCE COUNSEL:
Yes?
GARRY WALKER:
Yep.
DEFENCE COUNSEL:
What I want to ask you is this; is it possible that he simply said, ‘I’ve been stabbed’ for example?
GARRY WALKER:
No.
DEFENCE COUNSEL:
Is it possible that he might have said, ‘He stabbed me’?
GARRY WALKER:
No.
DEFENCE COUNSEL:
It’s not possible?
GARRY WALKER:
No, he did say she’d stabbed me.
…
GARRY WALKER:
It was clearly – it was clearly that he was saying to me, ‘She has stabbed me.’
(6)Causes of deaths of Caposiena and Cassidy
Caposiena died from the single gunshot wound to the left side of his head. His death was virtually instant. It was therefore common ground that he would have been incapable of stabbing Cassidy after he was shot; he must have done so before that occurred.
Caposiena stabbed Cassidy a total of four times, inflicting wounds to his chest, loin, buttock, and liver. The wounds were, however, to the back of the body — his back and buttock. Cassidy died from the stab wound to the liver, which caused substantial blood loss.
(7)Examination of the crime scene
Items located at the crime scene, including in Cassidy’s car, provided further evidence of Cassidy’s intention. That evidence included the following:
•A hand drawn map of Caposiena’s street was located in Cassidy’s pocket. The applicant’s DNA was on the paper. The map included both Caposiena’s property and the properties on either side of it. It indicated the location of street lights and sensor lights affixed to the neighbouring properties. There was a note identifying the location of a neighbour’s security camera, as well as a marking identifying the area that it was likely to capture. Finally, there was an inscription identifying the location of a dog (it is to be recalled that, in one of the recorded conversations, Cassidy said that he heard a dog).
•The plastic bag in Cassidy’s possession was found to contain two knives and duct tape.
•Another bullet, which was the same brand as the bullet that killed Caposiena, was located in Cassidy’s car.
Finally, according to the firearm expert, the firearm used by Cassidy had to be loaded by hand. Once the bullet was in the chamber, all that was required for discharge was for the trigger to be pulled.
(8)The case against the applicant
Much of the evidence against the applicant is not relevant to the resolution of this appeal, as it does not concern what unfolded in the moments immediately before the murder of Caposiena. Accordingly, we will refer to it in summary form only.
The prosecution’s case was put on two alternative bases, namely, that the applicant was complicit in — that is, ‘involved in’[7] — the murder of Caposiena because:
•she entered into an agreement, arrangement or understanding with Cassidy to murder Caposiena;[8] or
•she intentionally assisted, encouraged or directed Cassidy to murder Caposiena.[9]
[7]Crimes Act 1958, s 324.
[8]Crimes Act 1958, s 323(c).
[9]Crimes Act 1958, s 323(a).
The primary evidence relied upon by the prosecution to establish her involvement in the murder was comprised of the following:
•The admissions — both express and implied — made by the applicant to the two prison informers, her mother and sister, and her new partner. With respect to the latter, the applicant’s new partner gave evidence that the applicant told him that she had drawn the map located in Cassidy’s pocket, conducted surveillance on Caposiena’s house, and drafted the text message sent to her by Cassidy on the day of the murder.
•The evidence of the applicant’s animus towards Caposiena.
•The evidence that the applicant had told multiple people that she wanted Caposiena out of her and Alex’s life.
•The evidence that the applicant was pressuring Cassidy to do something about Caposiena.
•The recorded conversations between the applicant and Cassidy, including, in particular, the applicant encouraging Cassidy to finish ‘the job’.
PART D:THE RULING ON SELF-DEFENCE
(1)Procedural history
The defence request for a direction on self-defence was made at the first trial.
At the close of the evidence at the first trial, defence counsel argued that the evidence gave rise to a reasonable possibility that Cassidy was acting in self-defence at the time he shot Caposiena. The trial judge was asked to direct the jury on it. The trial judge ruled in writing that there was no evidence to suggest a reasonable possibility that Cassidy was acting in self-defence when he shot Caposiena.[10]
[10]DPP v Edmunds (Ruling No 3) [2022] VSC 327R (‘Ruling’).
At the second trial, the judge gave oral reasons for declining to leave self-defence. These largely incorporated his Honour’s written reasons from the first trial, though he supplemented them with this observation:
I would add with the greatest of respect, that in all the circumstances of this case, it would be absurd to leave self-defence on that issue and I do not propose to leave it.
At the commencement of the third trial, the trial judge noted that his ruling (given at the first and second trials) would ‘stand’ absent some significant or material change in the evidence. It seems to be common ground that the evidentiary basis at the third trial did not shift.
There remains an issue as to whether the applicant’s trial counsel in the third trial ultimately requested a direction on self-defence under s 12 of the Jury Directions Act 2015 (‘JDA’). We will address this separately and lastly. For the moment, we will proceed upon the basis that trial counsel for the applicant in the third trial did, in substance, seek the direction on self-defence, and that the judge effectively declined, essentially for the reasons which the trial judge gave in his written ruling at the first trial (and adopted at the second trial).
(2)Statutory framework
In order to understand the judge’s ruling, it is necessary to first provide the statutory context.
Prior to 2005, self-defence in Victoria was governed solely by the common law. This position was modified by successive statutory amendments which culminated with the introduction of a new Part IC in the Crimes Act 1958. This applied to any offence alleged to have been committed on or after 1 November 2014.
Part IC abolished common law self-defence (s 322N).
It sets out a single statutory self-defence provision for all offences (s 322K). Section 322K provides:
(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 322L qualifies the scope of operation of s 322K. It provides:
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.
Section 322I deals with the onus of proof. It provides:
(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).
It follows that, pursuant to s 322I, the trial judge must leave self-defence to the jury where the accused has presented or pointed to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence.
(3)First limb of the ruling: the lawfulness of Caposiena’s conduct (s 322L)
The argument before the trial judge turned largely on the application of s 322L.
At trial the prosecution argued that, at the time he stabbed Cassidy, Caposiena was acting lawfully in self-defence against a murderous attack. Thus, by virtue of s 322L, Cassidy was not entitled to rely on self-defence.
Defence trial counsel, on the other hand, argued that having been stabbed by Caposiena, there was a reasonable possibility that Cassidy believed his actions were necessary to defend himself from the risk of death or really serious injury.[11] It was said that the evidence allowed for the reasonable hypothesis that Caposiena commenced to stab Cassidy without then realising that Cassidy was armed with a firearm. If that is so, Caposiena may not have been acting lawfully by resorting to lethal force. The applicant argues that if such a reasonable possibility existed, s 322L did not exclude the availability of self-defence for Cassidy’s shooting of Caposiena.
[11]Trial counsel advanced this argument at the first and second trials. The applicant contends that the argument was effectively adopted and relied upon by a different trial counsel at the third trial. The respondent disputes this. We will deal with this issue at the end of our reasons.
In ruling that self-defence was not available on the evidence, the judge undertook an analysis of the evidence adduced at the trial. The ruling’s predominant focus was on the evidence given by Silva as to what occurred in the moments after Cassidy knocked on Caposiena’s door.[12] The trial judge reproduced parts of Silva’s evidence from the first trial. This evidence substantially corresponds with the evidence she gave at the third trial.
[12]Ruling, [4]–[10].
The trial judge identified two questions he had to answer to determine the applicability of s 322L:
First, was Caposiena acting lawfully by stabbing Cassidy on the basis that he was acting defensively out of fear of death or really serious injury? Second, did Cassidy know that Caposiena was acting lawfully? [13]
[13]Ruling, [15].
The trial judge concluded:
It is only if the answer to these questions is ‘no’ that self-defence can be raised in relation to Cassidy’s actions. In my view, the only reasonable answer to these questions on the evidence is ‘yes’.[14]
[14]Ruling, [15].
His Honour expanded upon his reasoning that Caposiena was acting lawfully:
… the stabbing of Cassidy in this case occurred in circumstances where Caposiena was defending himself and acting lawfully in the face of a threat of death or really serious injury from Cassidy, who was armed with a rifle. There is no basis on which a jury acting reasonably could find otherwise.[15]
[15]Ruling, [17].
In what might be described as the operative part of his ruling, the judge further amplified his reasoning:
Cassidy went to Caposiena’s premises for the purpose of killing him. There is no other explanation for his visit. Caposiena and [the applicant] had a very hostile relationship, and the evidence suggests that Cassidy was heavily committed to the [the applicant’s] side of that argument. [Defence Counsel] had submitted that the purpose of Cassidy’s visit to Caposiena was not relevant to the issue of self-defence. I disagree.
On occasions prior to 12 March 2016, Cassidy would appear to have gone to the area to conduct surveillance.
Cassidy went to the Westmeadows address on 12 March 2016 with a cut-down rifle, a knife and some tape.
Cassidy also had in possession on that night a hand-drawn diagram of Caposiena’s premises, showing access and lighting points.
On the evidence of Silva, the means by which Cassidy sought entry to the property was to feign conciliation with Caposiena until the door was opened, at which point he attacked him, aiming the rifle at Caposiena’s head.
During a very quick and dynamic struggle, Caposiena stabbed Cassidy with the knife in his possession. The wounds were to Cassidy’s back and buttock and obviously occurred while the two men were connected with each other during the struggle. There was no change in that dynamic which altered who the aggressor was. It can be readily inferred from Silva’s evidence that Caposiena realised from the forceful entry of Cassidy into the premises that Cassidy was in possession of a firearm which he was intending to use to shoot him and he attempted to defend himself including with the use of the knife[.][16]
[16]Ruling, [18(a)–(f)].
While his Honour found that Cassidy knew that Caposiena was acting lawfully, he did not expand upon this. Nevertheless, we think on a fair reading of his ruling, it is abundantly clear that his Honour dealt with that question as a matter of substance. His operative findings support only one conclusion: the trial judge was satisfied that Cassidy attended the property to kill Caposiena, and, in circumstances where he necessarily held murderous intent, he must have known that any defensive action taken by Caposiena was lawful.
Consequently, the trial judge found that, as s 322L applied, self-defence, as set out under s 322K, was not available.
(4)Second limb of the ruling: subjective belief that conduct necessary (s 322K)
Having found that self-defence was unavailable by reason of the application of s 322L, the trial judge went onto say:
In addition, though it is not necessary to resolve this, in my opinion there is also no basis to infer a subjective belief on the part of Cassidy that he needed to shoot Caposiena to defend himself against the risk of death or really serious injury given that he believed he had been stabbed by Silva.[17]
[17]Ruling, [17].
At the end of the operative part of his reasoning, the trial judge expanded upon this:
Prior to being shot, Caposiena stabbed Cassidy. It is unknown whether Cassidy realised he had been stabbed at that stage, but it is known that he believed he had been stabbed not by Caposiena but by Silva, as a result of which, having shot Caposiena in the head, he then attempted to shoot Silva and when that failed, violently assaulted her. It follows that on that basis that Cassidy would not have any subjective belief that what he was doing in shooting Caposiena was necessary to protect himself from the risk of death or really serious injury.[18]
[18]Ruling, [18(g)].
His Honour had earlier reproduced Garry Walker’s evidence that he heard Cassidy say, ‘She stabbed me, she stabbed me’. His Honour stated that he considered this evidence to be significant.
The trial judge referred to s 322K(3), observing that ‘self-defence only arises where a person carries out conduct believing that conduct to be necessary to defend themselves or another person from the infliction of death or really serious injury’.[19]
[19]Ruling, [12].
Having found that ‘Cassidy would not have [had] any subjective belief’[20] of that nature, it necessarily follows that the trial judge was of the view that the applicant had failed to discharge the evidential onus imposed by s 322I(1).
(5)A variation of the second limb of the ruling: Cassidy killed in pursuit of original design
[20]Ruling, [18(g)].
As we have said, the judge’s secondary (non-dispositive) conclusion was that there was no evidentiary foundation to support a finding that Cassidy subjectively believed that it was necessary to shoot Caposiena to protect himself from the risk of death or really serious injury.
On a literal reading of the relevant paragraph in his ruling (reproduced above), the judge seems to have anchored this conclusion to the evidence of Garry Walker. The judge said he reached this conclusion that Cassidy could not have personally believed it was necessary to act in self-defence, given that he (Cassidy) believed he had been stabbed by Silva.
However, a theme can be detected throughout the trial judge’s reasons that would suggest his Honour’s reasoning was broader than this.
The judge explicitly concluded that the only evidence before the jury was that Cassidy had embarked on his murderous plot at the time he entered the house under false pretences and commenced his assault upon Caposiena.
Importantly, the judge added:
[Defence counsel] had submitted that the purpose of Cassidy’s visit to Caposiena was not relevant to the issue of self-defence. I disagree.[21]
[21]Ruling, [18(a)].
The trial judge clearly considered that the evidence pointed in the one direction — Cassidy was fully and irreversibly committed to his criminal design to kill Caposiena. One of his statements, reproduced above, also bears repeating:
During a very quick and dynamic struggle, Caposiena stabbed Cassidy with the knife in his possession. The wounds were to Cassidy’s back and buttock and obviously occurred while the two men were connected with each other during the struggle. There was no change in that dynamic which altered who the aggressor was.[22]
[22]Ruling, [18(f)] (emphasis added).
While he did not say it in these terms in his ruling, when read as a whole, we take the trial judge to have been satisfied that:
•Cassidy was pursuing his criminal design when he shot Caposiena.
•There was nothing which took place in the house which could possibly have displaced Cassidy’s intention to kill pursuant to his original criminal design.
•Cassidy’s shooting of Caposiena was clearly not in response to anything that Caposiena did.
•There is no evidence that Cassidy held any subjective belief that it was necessary to shoot Caposiena to protect himself from the risk of death or really serious injury.
This reflects the tone of the views expressed by the trial judge during the course of the argument at trial.
For example, his Honour observed that ‘all the evidence in this case points to the fact that Cassidy went to [the house] to kill Caposiena, and he went there armed with a firearm which was loaded’. That being so, his Honour described what occurred in the following terms:
Cassidy is [at] the door with a gun — a loaded gun — intending to kill Caposiena. He persuades Caposiena to open the door and the minute or the second or the instant that the door is open, he charges in and there’s a struggle and during the struggle he’s stabbed and then he shoots him.
His Honour also queried the evidentiary basis for Cassidy’s state of mind, remarking, ‘it’s still a mystery to me as where we get evidence about Cassidy’s belief because he’s not with us.’
We therefore do not think that the trial judge’s reasons under the second limb of his Honour’s ruling — that Cassidy could not have believed he was acting in self-defence — were necessarily tied only to Walker’s evidence of Cassidy’s statement that ‘she stabbed me’. His Honour’s scepticism about self-defence was influenced by all the circumstances of the case, including the cogency of the evidence that Cassidy was at all times acting, not in self-defence, but in pursuit of his original design to kill Caposiena.
PART E:PARTIES’ SUBMISSIONS ON THIS APPLICATION
The parties’ submissions are interwoven into our analysis. Their submissions can be summarised briefly as follows.
As will become clear, the parties focused almost exclusively on the application of s 322L (which, when engaged, would have the effect of removing self-defence from the jury’s consideration).
(1)The applicant
The applicant argues that the evidence suggested a reasonable possibility of the existence of facts that would establish the defence of self-defence. She argues that the judge was wrong to find otherwise.
First, the applicant argues that the trial judge made certain errors in the course of the Ruling relevant to the application of s 322L.
She contends that his Honour was wrong to find that Caposiena must have seen the firearm before he stabbed Cassidy. While Silva saw the incident unfold, she did not observe Caposiena stabbing Cassidy. In the applicant’s submission, this left open a reasonable possibility that Caposiena began to stab Cassidy before he (Caposiena) saw the firearm. If this occurred, there was a reasonable possibility that Caposiena resorted to lethal force without any reason to believe that he (Caposiena) was in danger of death or really serious injury. This leaves open the reasonable possibility that Caposiena may have acted unlawfully.
The applicant also contends that the trial judge failed to consider both limbs of s 322L. In particular, his Honour was required to consider whether Caposiena was acting lawfully and whether Cassidy knew that Caposiena was acting lawfully.
The applicant argues that his Honour only made findings with respect to whether Caposiena was acting lawfully. He did not, in her submission, go on to consider Cassidy’s state of mind as required by s 322L(b) (i.e. whether Cassidy knew that Caposiena was acting lawfully). His Honour was required to do this, as s 322L would only remove self-defence if both requirements of s 322L are satisfied. Because his Honour did not make findings as to Cassidy’s state of mind, the decision to remove self-defence from the jury’s consideration miscarried.
On the facts of this case, the applicant submits that the trial judge erred in finding that s 322L was a bar to the raising of self-defence for the jury’s consideration.
Ultimately, it was the applicant’s case that the evidence suggested a reasonable possibility that Cassidy acted in self-defence — by defending himself to avoid being stabbed to death.
In this respect, the applicant takes issue with the trial judge’s treatment of the evidence that Cassidy told Garry Walker that ‘she’ (Silva) stabbed him. In her submission, this was a contested issue and was not a basis upon which his Honour could properly dispose of the application for a direction on self-defence.
The failure to leave self-defence was productive of a substantial miscarriage of justice.
(2)The respondent
The respondent submits that the applicant failed to discharge the evidential onus imposed by s 322I; there is no evidence that suggests a reasonable possibility that Cassidy was acting in self-defence at the time he killed Caposiena.
The respondent effectively made two arguments.
First, the respondent submitted that Caposiena was acting lawfully (in self-defence) when he (Caposiena) started to stab Cassidy. This triggered s 322L and removed the availability of self-defence.
The respondent argued that the evidence supported the conclusion that the firearm would have been visible to Caposiena immediately upon Cassidy’s entry. Cassidy procured entry to Caposiena’s house by using a ruse, and immediately began to assault Caposiena. He was effectively committing aggravated burglary, entering the property as a trespasser and armed with an array of weapons. It follows, in the respondent’s submission, that Caposiena was well-entitled to defend himself in the way he did; his actions could be characterised as a pre-emptive strike that was on any view proportionate to the threat he perceived.
Additionally, the respondent argues that it could not reasonably be suggested that Cassidy did not know that Caposiena was acting lawfully. Again, the respondent points to what Cassidy did and the purpose for which he did it: he was at the property to murder Caposiena. Once that is accepted, the only inference reasonably available is that Cassidy was well-aware that Caposiena was acting in self-defence when he (Caposiena) started his stabbing of Cassidy.
Second, the respondent contended that the trial judge effectively concluded on the evidence that the only reasonable view of Cassidy’s use of the firearm to shoot Caposiena was that he did so as ‘an aggressor in pursuit of his original design’ being the plan to kill Caposiena. There was no change in the dynamic which might have altered the fact that, at all relevant times, Cassidy remained the aggressor in pursuit of this ‘original design’. There was therefore no reasonable possibility that Cassidy acted in self-defence.
PART F:LEGAL FRAMEWORK
(1)Common law and ‘reasonable possibility’ of self-defence
It is accepted that the threshold test in relation to the evidential onus of raising self-defence is now contained under s 322I; this requires an accused to point to or present evidence that ‘suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence’.
There was a dispute between the parties at the hearing before us about whether this statutory threshold is more stringent than that which applied at common law.
The applicant contends that under the common law if the evidence raised ‘the possibility’ of self-defence, a trial judge was required to leave the issue of self-defence for the jury’s consideration. It was submitted that the advent of statutory self-defence should not be seen as an attempt by the Parliament to exclude such an approach. Reliance was placed by the applicant upon Zecevic v DPP[23] and R v Kear.[24]
[23](1987) 162 CLR 645; [1987] HCA 26 (‘Zecevic’).
[24][1997] 2 VR 555 (‘Kear’).
The respondent contends that s 322I(1) of the Crimes Act 1958 has altered the ‘threshold test for the evidential onus for self-defence’. The respondent observes that, at common law, the evidential onus was met if there was ‘any evidence from which a jury might infer’ that the accused acted in self-defence. In support of that interpretation of the common law, the respondent also cited this Court’s decision in Kear. In the respondent’s submission, this meant that self-defence had to be left where it was a ‘mere possibility’. The respondent argues that the test is no longer one of mere possibility. This, the respondent says, flows from the text of s 322I(1), which requires an accused to point to or present evidence that ‘suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence’.
As the High Court has recently said, the ‘starting point for the ascertainment of the meaning of a statutory provision … is the text of the statute, whilst at the same time regard is had to context in its widest sense — including its historical context — and purpose’.[25]
[25]R v Rohan (a pseudonym) (2024) 98 ALJR 429, 434 [25]; [2024] HCA 3 (Gageler CJ, Gordon and Edelman JJ), citing SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14]; [2017] HCA 34; R v Jacobs Group (Australia) Pty Ltd (2023) 97 ALJR 595, 602 [23]; [2023] HCA 23.
The common law approach cannot be a substitute for the words of the statute. Whatever the approach might have been at common law, the statutory test is whether there is evidence that ‘suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence’. The phrase ‘reasonable possibility’ within this test cannot mean ‘mere possibility’ or ‘any possibility’. That would involve a re-drafting of the statute. Certainly, something more than a speculative, unrealistic, or fanciful possibility is required.
That said, a close analysis of the decision in Kear makes it plain that the touchstone of the threshold test at common law has always been one of reasonableness; the law has never allowed the issue of self-defence to be left to the jury in circumstances where the defence is fanciful or based upon mere speculation. For the defence to be left, it needed to be grounded in the evidence.
In Kear, each member of the Court delivered a separate judgment. However, despite using slightly different language, their Honours were clearly at one when it came to the applicable test.
Tadgell JA endorsed the approach that, before the issue of self-defence arises, there must be evidence which would enable ‘a reasonable jury’ to logically conclude that the accused acted in self-defence.[26]
[26]Kear [1997] 2 VR 555, 557, citing to R v Lane [1983] 2 VR 449,462 (Fullagar J).
Ormiston JA asked whether ‘there was any evidence from which the jury might infer that the applicant acted in self-defence’.[27] At first blush, and read out of context, the reference to ‘any evidence’ might be regarded as setting a low bar. But that is not how his Honour applied the test. Rather, his Honour approached it in this way:
Could the jury, therefore, reasonably conclude that the blow struck by the applicant was reasonably thought necessary by him for his self-defence notwithstanding that he gave no direct evidence as to that belief? In my opinion such an inference was reasonably open on these facts. … If he could reasonably be perceived as the victim of the fight, then it would leave open the reasonable possibility that he thought it necessary to land the critical blow in order to defend himself from Depke’s attack and, in particular, from the kicking, kneeing and head-butting which Depke was inflicting upon him. [28]
[27]Kear [1997] 2 VR 555, 566.
[28]Kear [1997] 2 VR 555, 567 (emphasis added).
Finally, Phillips JA (as his Honour then was) held that the duty to direct the jury on self-defence ‘cannot be a charter for unbridled speculation’.[29] Thus:
A trial judge is surely constrained to direct the jury as to some possible answer to the charge which has not been expressly relied upon in addresses only if that answer is reasonably open on the evidence.[30]
[29]Kear [1997] 2 VR 555, 569.
[30]Kear [1997] 2 VR 555, 569–70 (emphasis added).
As can be seen, the Court in Kear anchored its analysis of the threshold question to the concept of reasonableness. The concept is well-understood and frequently applied.
This was emphasised by Vincent JA in R v Williams.[31] There, his Honour said:
… it does not follow that the mere assertion of the existence of a possible defence on the base incantation of the expression ‘self-defence’, or the presentation of a speculative or fanciful scenario unsupported by evidence will impose upon a trial judge an obligation to instruct the jury concerning the defence so asserted or raised[.]
…
The instructions given by a trial Judge to the jury must be directed to the issues of fact and law that can be identified as having been raised by the evidence adduced in the trial. They are neither meaningful nor useful in the absence of an appropriate evidentiary framework which justifies the putting of the issues before the jury in the first place and gives rise to a duty to instruct them (inter alia) as to the principles of law relevant to the jury consideration of those issues and an obligation to relate the principles to the evidence. Where no appropriate evidentiary framework exists to which the instructions can be attached, the provision of broad statements, and the intrusion of what are in terms of the evidence irrelevant principles of law are, at best, time wasting and unnecessary and, at worst, a virtual invitation to the jury to engage in illegitimate speculation.[32]
[31][2000] VSC 20 (‘Williams’).
[32]Williams [2000] VSC 20, [15]–[16].
Later, in R v Yasso,[33] Vincent JA emphasised the need for there to be ‘a sense of reality about the process’[34] of leaving defences to the jury for their consideration. In our view, this is a useful and grounded way to approach the question raised by the proposed ground of appeal: Is a claim of self-defence realistic in the circumstances?
[33](2004) 10 VR 466; [2004] VSCA 127 (‘Yasso’).
[34]Yasso (2004) 10 VR 466, 482 [55]; [2004] VSCA 127.
The common law has therefore always required something more than a speculative, unrealistic, or fanciful possibility. As we have said, that is also the clear import of s 322I(1), which demands that evidence must suggest a reasonable possibility of self-defence.
This leaves the question about whether the test under s 322I(1) might be satisfied even if the plea may seem to the trial judge to be ‘weak and tenuous’. The respondent suggested that evidence considered to be ‘weak and tenuous’ may not be sufficient to discharge an accused’s evidential onus under s 322I(1).
At common law, self-defence was to be put to the jury even if the plea may seem to the trial judge to be ‘weak and tenuous’.[35]
[35]This term is used, for example, in Zecevic (1987) 162 CLR 645, 665; [1987] HCA 26 (Wilson, Dawson and Toohey JJ). See also Kear [1997] 2 VR 555, 565 (Ormiston JA).
In our view, s 322I(1) should be construed to allow for the possibility that evidence might meet the test even if the judge considers the evidence of self-defence to be ‘weak and tenuous’.
There are several reasons why it should be interpreted or applied in this manner.
First, the test is not whether there is in fact a ‘reasonable possibility’ that the accused acted in self-defence. The test is whether there is evidence that ‘suggests a reasonable possibility’ that the accused did so.
The word ‘suggests’ is important; it should not be overlooked. It makes it plain that it is not for the trial judge to evaluate and weigh the evidence pointed to or presented by an accused, still less draw any conclusions. To do so would intrude into the jury’s arena.
Second, s 322I(1) refers also to ‘facts that, if they existed, would establish self-defence’. This lends further support to the proposition that the judge should not engage in any form of fact-finding.
Third, s 322I(1) must be interpreted within the context of the constitutional role which the jury plays in determining questions of fact. Thus, in Zecevic, the plurality said:
Turning to the evidence in this case, it is necessary to bear in mind that it was entirely for the jury to determine whether the appellant’s version of events was true: Lee Chun-Chuen v The Queen.[36] Moreover, the 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 Reg v Muratovic,[37] ‘... 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’.[38]
[36](1963) AC 220, 230.
[37](1967) Qd R 15, 20.
[38]Zecevic (1987) 162 CLR 645, 665; [1987] HCA 26 (Wilson, Dawson and Toohey JJ) (emphasis added).
The emphasised words in this passage seem to contemplate that evidence of self-defence which appears to be ‘weak or tenuous’ is capable of being evidence which ‘suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence’.
In our view, while the statutory provisions have introduced changes to the common law on self-defence, the threshold test under s 322I(1) governing the circumstances in which the trial judge should leave self-defence to the jury is largely consistent with the approach which existed at common law. We doubt there is a practical difference. Some guidance as to the application of s 322I(1) can be obtained from the common law authorities.
(2) ‘Reasonable possibility’ of self-defence in the context of s 322L
It is important to recall that s 322L is designed to exclude a class of case from the operation of self-defence.
The common law permitted a plea of self-defence even when the charged act was carried out in response to the ‘lawful conduct’ of the victim.[39]
[39]See Zecevic (1987) 162 CLR 645; [1987] HCA 26.
Under s 322L, an accused who responds to the ‘lawful conduct’ of another, which they know to be lawful, cannot rely upon self-defence.
Section 322L has thus modified the common law and narrowed the scope of self-defence. Self-defence is now confined to responses to unlawful conduct.
If it can be said that an accused responded to the ‘lawful conduct’ of another, and that the accused knew the conduct to be ‘lawful’, s 322L is engaged, and the accused is disqualified from relying upon self-defence. The two conditions under s 322L are cumulative. Both must be established before the operation of s 322L is enlivened and before self-defence is removed.
On the other hand, if there exists a reasonable possibility that either limb is not established, s 322L is not engaged and self-defence can still be relied upon.
When s 322L and s 322I(1) are read and applied together, there are two questions for the trial judge to consider in deciding whether self-defence is available:
•The first question for the trial judge is whether there is evidence which suggests a reasonable possibility that the victim’s conduct was not lawful.[40]
•The second question is whether there is evidence which suggests a reasonable possibility that the accused did not know the conduct to be lawful.
[40]Put another way, to adopt the words of Beale J in DPP v McDowall(Ruling No. 1) [2019] VSC 341, [9] (‘McDowall’), the relevant question for the trial judge is: ‘Could a jury find or consider that there was a reasonable possibility that the deceased’s conduct was unlawful?’.
If there is evidence which suggests either of these reasonable possibilities, s 322L does not operate to make self-defence unavailable.
That, however, is not the end to the enquiry about whether self-defence should be left to the jury. It simply means that reliance upon self-defence is not excluded by s 322L.
Section 322L does not define the requisite components of self-defence. The elements of self-defence are to be found in s 322K. That being the case, the question of whether the facts suggest a reasonable possibility of self-defence must still be primarily resolved by reference to the terms of s 322K. Section 322L tells us what (or what class of case) cannot amount to self-defence; whereas, s 322K tells us what amounts to self-defence.
The hypothesis postulated by the applicant requires Cassidy to have instantaneously broken off his murderous resolve, despite being hell-bent on killing Caposiena at the moment of his forceful intrusion. By then, Cassidy was well advanced in carrying out his criminal design to kill Caposiena.
Certainly, there was, on all the facts, no evidence which suggested a ‘reasonable possibility that [the] incident had come to an end and a new incident had commenced.’[63] There is no evidence that Cassidy acted defensively; for example, there is no evidence that he recoiled, retreated, broke off, showed concern for his own safety, paused, hesitated or sought to de-escalate the situation. To infer any of this, would invite mere speculation, and indeed fly in the face of the evidence.
[63]Miller [2019] SASCFC 91, [164] (Stanley J, Parker J agreeing at [179], Doyle J agreeing at [180]).
Fifth, it is completely unrealistic to suppose that Cassidy held back on producing the firearm until he realised that Caposiena was using a knife, and thus only resorted to the firearm in defence of himself. The applicant’s self-defence hypothesis seems to assume this.
The only rational inference available is that Cassidy initially armed himself, loaded the firearm, and arranged for ready access to it, not to defend himself from any possible response from Caposiena, but to carry out his original design to kill Caposiena.[64]
[64]The firearm had to have been in a state of readiness in order for it to have been discharged by Cassidy. It had to be loaded by hand with a bullet in the chamber. We also infer that Cassidy must have ensured he had ready access to the firearm even though it was secreted initially. The fact is, Cassidy did withdraw the firearm within seconds of his intrusion into the house.
Cassidy’s access to, and presentation of, the firearm was integral to his murderous attack. It can be inferred that Cassidy immediately moved to withdraw the firearm upon the launch of his murderous attack at the front door. There is no other inference available. On this point, we are in full agreement with the trial judge.
On the evidence, Cassidy’s resort to the presentation (and use) of the firearm was independent of anything which Caposiena did with the knife.
The only rational view of the evidence is that when Cassidy withdrew the firearm, he did so as soon as he could, not in self-defence, but as a necessary step in pursuit of his original design to shoot Cassidy dead.
That is so, even allowing for the reasonable possibility that Caposiena commenced to stab Cassidy as Cassidy crossed the threshold through the front door, and before the firearm became visible to him (Caposiena). That scenario focuses only upon Caposiena’s state of mind but says nothing about Cassidy’s state of mind; on all the evidence, Cassidy was concentrated on carrying out his plan to kill Caposiena.
Sixth, the unlawfulness of Caposiena’s conduct is ultimately immaterial in the circumstances of this case.
That Caposiena may have engaged in unlawful conduct, was inconsequential to the development of Cassidy’s intention to kill and to his act in shooting Caposiena.
Once it is accepted — as we have — that Cassidy did not shoot Caposiena in response to Caposiena’s stabbings, but did so in pursuit of his original design, then the question of whether Caposiena’s conduct is characterised as lawful or unlawful is a distraction.
It seems to us that the argument at trial — and indeed much of the argument at the hearing of the application before us — was unduly fixated upon the question of Caposiena’s conduct under s 322L rather than upon Cassidy’s conduct under s 322K.
Ultimately, whether the trial judge was required to leave self-defence in this case fundamentally turned upon the applicability of self-defence to Cassidy’s shooting of Caposiena, and not the applicability of self-defence to Caposiena’s stabbing of Cassidy.
In summary, Cassidy embarked upon a course of conduct to kill Caposiena. As he forcefully entered Caposiena’s home, Cassidy was in the throes of realising this murderous plan. His murderous attack had not only commenced; it was in full swing and only seconds from coming to fruition. The evidence bespeaks of Cassidy’s unwavering focus and determination to carry out this original design to kill Caposiena immediately.
The hypothesis that, in the midst of this murderous attack, Cassidy instantly abandoned his resolve, or weakened in his determination, to complete his original design to kill, has a real air of unreality about it. As does the notion that his conduct was ‘transmuted in split seconds into self-defence’.[65]
[65]Viro (1978) 141CLR 88, 117; [1978] HCA 9 (Gibbs J).
The claimed inference that Cassidy formed the belief that it was necessary to resort to the use of the firearm to protect himself in response to Caposiena’s use of the knife — rather than to fulfil his original design to kill —is far removed from any rational view of the evidence. At best it is ‘no higher than speculation or surmise.’[66] It could never have satisfied the test under s 322I.
[66]Robertson [2024] NSWCCA 99, [27] (Harrison CJ at CL).
(4)Did Cassidy even know Caposiena stabbed him?
In reaching our conclusions that self-defence was never sensibly open on the facts in this case for Cassidy’s shooting of Caposiena, we have proceeded upon the evidential footing that Cassidy was aware, during the episode, that he was being stabbed by Caposiena.
There is, however, cogent evidence that Cassidy never even realised that he was being stabbed by Caposiena.
Garry Walker gave evidence that Cassidy said to him, ‘she stabbed me’.
Taken on its face, the implication of this evidence is that Cassidy never realised that Caposiena stabbed him.
As the trial judge concluded in his ruling:
It is unknown whether Cassidy realised he had been stabbed at that stage, but it is known that he believed he had been stabbed not by Caposiena but by Silva...[67]
[67]Ruling, [18(g)].
It is common ground that Caposiena — not Silva — stabbed Cassidy. But the significance of Garry Walker’s evidence lies in the light it sheds on Cassidy’s state of mind. If Cassidy believed (even wrongly) that Silva — not Caposiena — stabbed him, Cassidy could not have personally considered it necessary to kill Caposiena to protect himself.
The evidence represents the only version of events provided by Cassidy as to his own state of mind.
Garry Walker’s evidence of what Cassidy said — if accepted — reinforces the conclusion that Cassidy’s presentation and then discharge of the firearm could not have been a response to Caposiena’s use of the knife or stabbing at all.
As the trial judge said, there is no basis:
[t]o infer a subjective belief on the part of Cassidy that that he needed to shoot Caposiena to defend himself against the risk of death or really serious injury given that he believed he had been stabbed by Silva.[68]
[68]Ruling, [17].
However, the defence at trial did challenge Garry Walker’s evidence or, at the very least, tested his evidence, raising the hypothesis that Walker may have misheard Cassidy’s words (i.e. it being suggested that Cassidy could have said ‘he stabbed me’).
Additionally, at the hearing of this application before us, it was also argued that Cassidy himself might have misspoken (given that he was close to death, his ability to communicate rationally and logically may have been severely compromised, so the applicant says).
The reliability of Garry Walker’s account of Cassidy’s statement was thus put in issue — as well as the reliability of Cassidy’s own words (accepting that they were uttered). In this sense, Garry Walker’s evidence was contested, or at least its import was.
In our view, Walker’s evidence was cogent.[69] It was unequivocal. Despite being tested, Walker steadfastly maintained that Cassidy said, ‘she stabbed me.’ Some support for why Cassidy may have (wrongly) believed that Silva — not Caposiena — stabbed him can also be found in the evidence.[70]
[69]Walker’s evidence was unequivocal. Under cross-examination, he maintained that Cassidy said, ‘she stabbed me’, and not ‘he stabbed me’. There was no suggestion raised that Walker’s capacity to hear and recall the words was in any way impaired or compromised. He was within Cassidy’s immediate proximity. There was no suggestion raised that Walker was a witness who had a motive to embellish or exaggerate. The evidence about what Cassidy said was uncontradicted.
[70]Given that the stab wounds were inflicted during a brief close quarters physical wrestle, when they were moving and connected to each other, and given the location of the stab wounds (to Cassidy’s back and buttock), Cassidy may not have known that he was being stabbed by Caposiena. There is also no evidence that Caposiena brandished or wielded the knife in full view of Cassidy. Indeed, the evidence from Silva is that Caposiena was careful to conceal the knife from Cassidy’s view when they were initially engaged in discussion at the front door. Thereafter the struggle ensued. Cassidy’s subsequent assault of Silva — again at close quarters — offers some explanation as to why he (Cassidy) mistakenly thought she (Silva) had stabbed him. There is otherwise no evidence that Cassidy knew that he was being stabbed by Caposiena.
The ‘Cassidy misspoke’ argument also verged on speculation.[71]
[71]There was no evidence that Cassidy’s coherence was compromised. The evidence of Walker suggests that he was sufficiently coherent to be able to respond to his (Walker’s) request to drop the gun, and to relay that he (Cassidy) had been stabbed and was going to die.
With all that said, the defence would have been entitled to address the jury on these issues. Had the determination of whether the trial evidence suggested a reasonable possibility of self-defence hinged upon the acceptance of Garry Walker’s evidence, then we are inclined to the view that the issue should have been left to a jury to decide.
A trial judge would risk trespassing into the jury’s domain of assessing contested facts, and resolving questions of reliability, were they to do otherwise. It may be that this explains why his Honour hesitated in decisively resolving the self-defence issue upon the basis of Garry Walker’s evidence.
Importantly, however, our conclusion on this application — that the evidence did not suggest a reasonable possibility that Cassidy believed it was necessary to shoot Caposiena in self-defence — does not rest upon the evidence of Garry Walker.
We have concluded that — even if Cassidy realised he was being stabbed by Caposiena — he did not kill Caposiena in response to that conduct in self-defence but did so in pursuit of his original plan to murder him.
Of course, Garry Walker’s evidence strengthens the conclusion that Cassidy attacked and killed Caposiena in pursuit of his plan to murder him, and not in response to being stabbed by Caposiena. Even without Walker’s evidence, the evidence did not suggest a reasonable possibility that Cassidy acted self-defence in shooting Caposiena. Walker’s evidence makes self-defence even more unrealistic.
(5)Concluding observations
The only reasonable view of the evidence is that Cassidy acted, not in self-defence, but in pursuit of the original plan to kill.
Our reasoning overlaps with the variation of the second limb of the judge’s reasoning.
While we have found that the trial judge made a factual error in relation to the lawfulness of Caposiena’s use of the knife, the trial judge’s decision to decline to give a direction of self-defence was correct.
In our view, the error was immaterial to the conclusion that the facts did not suggest a reasonable possibility that Cassidy subjectively believed that it was necessary to shoot Caposiena in order to protect himself from death or really serious injury.
In any event, for the reasons we have given, we have reached the same overall conclusion as that reached by the trial judge that, ‘in all the circumstances of this case, it would be absurd to leave self-defence on that issue’.
PART H:FAILURE TO REQUEST SELF-DEFENCE DIRECTION?
(1)The issue and parties’ arguments
Section 12 of the JDA provides that, after the close of evidence, trial counsel must request the trial judge to give particular directions in respect of the matters in issue and evidence relevant to those matters.
Section 14 provides that the trial judge must give the requested direction unless there are good reasons for not doing so.
Where a direction about self-defence is not requested, the judge must still so direct the jury if the judge considers that there are substantial and compelling reasons to direct the jury about self-defence despite the absence of a request (s 16).
At the hearing of this application, the respondent identified a threshold issue.
The respondent contended that defence counsel appearing at the third trial did not, contrary to their obligation under s 12 of the JDA, request a direction on self-defence.
The respondent submits that defence counsel’s failure to request a direction on self-defence effectively precludes the applicant from raising the issue on appeal.
That ‘failure’, the respondent submitted, may not have been an oversight, but the result of a legitimate forensic decision to abandon the defence at trial. The respondent argued that the hypothesis that Cassidy may have shot and killed Caposiena in self-defence would have forensically undermined the defence case that Cassidy was ‘unhinged’ and ‘out of control’. This forensic explanation, rather than oversight, explains the absence of a request for self-defence to be left to the jury.
The applicant characterised the respondent’s submissions on this issue as ‘very unfair, very unmeritorious and very unrealistic’. She argued that defence counsel’s failure to request a direction — if there was such a failure — needs to be viewed in the light of what occurred at the first and second trials, as well as what the trial judge said prior to the commencement of the third trial. The applicant pointed to the trial judge’s insistence that his earlier ruling stood. His Honour was, according to the applicant, dismissive of any attempt to have the matter further agitated. In the applicant’s submission, in the face of this judicial resistance, defence counsel was justified in the course they took.
(2)Analysis
The trial judge formally ruled on two separate occasions (the first and second trials), that self-defence could not be left to the jury.
Prior to the commencement of the third trial, the judge raised the issue of self-defence. The following exchange ensued:
JUDGE:
First of all, in relation to the issue of self-defence, I’ve ruled on that matter and unless there were [sic] a dramatic change in the course of the evidence that ruling will stand. I take it you don’t contend that situation should be otherwise, do you?
DEFENCE COUNSEL:
Your Honour, I appreciate those set of circumstances, I’m aware of the matter Your Honour’s ruled on. I indicate that it’s an issue that we – well I want to indicate to the court that it’s a matter that we may well reagitate. I’m fully aware of Your Honour’s position though.
JUDGE:
Well, you can if the evidence is different.
DEFENCE COUNSEL:
Yes.
JUDGE:
But if the evidence remains the same as it is, I won’t permit you to do that.
…
Thus, from the outset, defence counsel was on notice that the judge did not propose to give a direction on self-defence unless there was a material — or ‘dramatic’ — change in circumstances. His Honour made it abundantly clear that the rulings from the first and second trials would govern the conduct of the third trial. Neither party cavilled with this.
The trial judge’s position on the issue of self-defence was re-enforced during Silva’s cross-examination. Defence counsel was cross-examining Silva in some detail about where Silva was situated or positioned at the time Cassidy entered the house. Silva became distressed, which prompted the following exchange (emphasis added):
JUDGE:
… What’s the point of this, [counsel]? Why are we doing this?
DEFENCE COUNSEL:
Your Honour, I need to get a very clear location about where [Silva] is and - - -
JUDGE:
Why?
DEFENCE COUNSEL:
- - - when certain things occur.
JUDGE:
Why?
DEFENCE COUNSEL:
In order to conduct the defence – or one aspect of it, at least.
JUDGE:
Is this part of the self-defence non-issue?
DEFENCE COUNSEL:
Your Honour, it’s – the evidence that - - -
JUDGE:
Your client wasn’t there. We know a number of things about what happened. Why do the particulars that detail minutiae make any difference?
DEFENCE COUNSEL:
It makes a difference where she – principally, where she was when she first sees the gun.
JUDGE:
Right.
DEFENCE COUNSEL:
That matters.
JUDGE:
Is this aimed at establishing somehow that Cassidy was acting on a frolic of his own, nothing to do with your client, or is this aimed at [ - - - ] it’s in some way trying to persuade me, eventually, to revisit the self-defence ruling?
DEFENCE COUNSEL:
Well, I accept certainly that the second matter is part of what I’m doing, yes.
The judge’s reference to ‘the self-defence non-issue’ — made during the cross-examination of the only witness to the events that led to the death of each man, and whose evidence was clearly central to any defence — would have signified to defence counsel that the judge (still) did not consider self-defence to be available on the evidence.
Having regard to the judge’s position immediately prior to the commencement of the third trial, the judge’s intervention was apt to convey to the trial participants that there had not been a ‘dramatic change’ in the evidence, and, consequently, that the judge’s ruling ‘[would] stand’. That was especially so in circumstances where the effect of Silva’s evidence did not differ in material respects from the evidence she gave at the first and second trials.
It seems to us that a reasonable interpretation of what occurred is that the applicant sought to have self-defence left as an issue in the third trial, just as she had in the first and second trials.
We can detect no material change in the conduct of the defence case which might explain a different approach with respect to the use of self-defence on the third trial from the first and second trials. The exchange with trial counsel above strongly suggests that their approach to self-defence persisted deep into the third trial.
Importantly, there was no apparent evidential basis to have the trial judge’s ruling re-visited at the conclusion of the evidence. The trial judge’s ruling and reasons therefore stood at the conclusion of the evidence of the third trial. The judge made this plain. We infer defence counsel must have thought it futile to attempt to further agitate the matter (and we are prepared to proceed on the basis that it would have been).
We are prepared to infer that this background explains the absence of an explicit request by the applicant’s trial counsel at the conclusion of the evidence for a direction on self-defence pursuant to s 12 of the JDA.
In our view, the applicant can be taken to have effectively — albeit implicitly — made the request for self-defence to be left pursuant to s 12. Further, the judge’s ruling subsisted until the end of the trial.
We would accept the respondent’s argument that the defence case that Cassidy was unhinged and had a plan to kill Caposiena on a frolic of his own might be viewed as inconsistent with self-defence. We have touched upon this above. However, given the procedural history and the exchanges between the trial judge and trial counsel in relation to the issue of self-defence, we are not persuaded that an inference should be drawn that trial counsel’s omission to request formally that this issue be left must have been attributable to a forensic decision.
That all said, it would have been preferable for the applicant’s trial counsel to have formally confirmed their request for the direction at the conclusion of the evidence. Strict compliance with s 12 required this. Quite apart from anything else, it would have removed any doubt about what directions the defence sought at the conclusion of the third trial.
Accepting, as we do, that there was a request for the direction, then pursuant to s 14 of the JDA, the trial judge was required to give the jury the requested direction unless there were good reasons for not doing so. His Honour addressed this at the conclusion of his written ruling (given at the first trial and adopted on the second and third trials):
In my opinion, there are ‘good reasons’ for not giving the requested direction concerning self-defence, primary among them being that there is no evidentiary basis on which to do so.[72]
[72]Ruling, [21].
As we have explained, the trial judge was correct to so hold; there were ‘good reasons’ for not giving the direction on self-defence.
In the circumstances of this case, the outcome of this application and appeal has not turned upon the omission of any explicit request by defence counsel for a self-defence direction.
PART I:CONCLUSION
For the reasons which we have given, leave to appeal is refused.
---
2
10
0