Middendorp v The Queen

[2012] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0162
LUKE JOHN MIDDENDORP	Applicant /Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH, MANDIE JJA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 September 2011
DATE OF JUDGMENT	22 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 47
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Luke John Middendorp (Unreported, Supreme Court of Victoria, Byrne J, 5, 9, 10, 11, 12, 15, 16 and 17 March 2010 (verdict)); R v Middendorp [2010] VSC 202 (Byrne J) (sentence)

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CRIMINAL LAW – Conviction – Defensive homicide – Whether tendency evidence probative on count of murder and lesser alternative of defensive homicide – Probative value of tendency evidence to objective dimension of self-defence belief – Extent to which similarity between tendency evidence and offending conduct is necessary – Tendency evidence and credibility of applicant – Directions to jury on permissible use of tendency evidence – (VIC) Crimes Act 1958 ss 9AC, 9AD – (VIC) Evidence Act 2008 ss 97, 101 – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – 12 years head sentence and eight years non-parole period – Specific errors arising from factual findings and approach to Victim Impact Statement – Manifest excess – DPP v Edwards [2009] VSCA 232 considered – Court not persuaded different sentences should be imposed despite specific errors – (VIC) Criminal Procedure Act 2009 s 281(1)(b) – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D A Dann with Ms J Fallar	Ms Melinda Walker Criminal Law Solicitor
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

1. Following a trial the applicant was acquitted of murder and convicted of defensive homicide.  He was sentenced to 12 years’ imprisonment with a non-parole period of eight years.  He seeks leave to appeal against his conviction and sentence.

Factual background

1. The circumstances of the case can be briefly set out as follows.  From late 2007 the applicant was involved in a de facto relationship with Ms Jade Bownds.  Their relationship was characterised by recurring episodes of violence.  It was the defence case at trial that these instances of violence were often instigated by the deceased, but the prosecution led evidence suggesting the outbreaks of violence were initiated by the applicant in circumstances where the deceased posed no threat to his safety.  Perhaps the worst instance of this was borne out by contested versions of evidence at trial regarding the applicant slashing Ms Bownds’ and his own throat with a razor or bottle.  These altercations generally occurred in the context of drug-fuelled arguments. 

1. Unsurprisingly, when the Salvation Army made arrangements with the applicant for housing in Rosser Street, Brunswick, it did so on the basis that Ms Bownds should not share the same accommodation.  Despite this pre-condition, Ms Bownds often lived at the same residence with the applicant.

1. On the day of the impugned conduct in September 2008, the applicant was spending time at his Brunswick premises, when Ms Bownds attended with a male companion.  At the time, both Ms Bownds and the applicant were likely affected by either marijuana or alcohol.  Mr Middendorp refused Ms Bownds’ entry into the premises and was observed by a witness to have brandished a knife and used it to threaten her.  However, Ms Bownds entered the premises notwithstanding the threats.

1. The applicant then appeared to threaten Ms Bownds’ companion with the knife and pursued him down the street.  Failing to capture him, the applicant returned to the Rosser Street house where he claimed Ms Bownds was waiting for him in the lounge area with a knife in her right hand.  The applicant testified at trial that the deceased approached him with the knife and in the confrontation that ensued, the applicant stabbed Ms Bownds with his knife four times over her shoulder, during which time he also managed to wrestle away from her the knife she was wielding.  Ms Bownds was able to leave the house notwithstanding her wounds and stagger down the street – where she died shortly afterwards.  Mr Middendorp was heard by neighbours to have berated Ms Bownds as she retreated from the premises.

Grounds of Appeal – Conviction

1. On his application for leave to appeal against conviction the applicant relies upon three interrelated grounds arising from the trial judge’s redirections to the jury concerning the use of tendency evidence adduced by the Crown for the purposes of defensive homicide and the trial judge’s characterisation of the applicant as a ‘man of a certain type’.  The thrust of these grounds goes to the contention that the tendency evidence was inadmissible for the purposes of considering the crime of defensive homicide and that by permitting the jury to rely on the evidence for these purposes, the trial judge’s directions bespoke appellable error.  The third ground challenges the impugned description of the applicant as a ‘man of a certain type’ on the basis that it encouraged the jury to embark on an impermissible line of reasoning.   

1. The tendency evidence particularised by the Crown involved five instances of the applicant’s violence against the deceased in situations where the deceased posed no risk of harming him. This included the aforementioned instance where the applicant cut Ms Bownds’ throat and his own with a bottle or razor nine months before the offending conduct; the applicant hitting the deceased with a frying pan about six months before the offending conduct; the applicant strangling the deceased and subsequently hitting her over the head with a vacuum cleaner pole, also about six months before the offending conduct; the applicant strangling the deceased and threatening to kill her about two months before the offending conduct; and the applicant kicking the deceased with a steel-capped boot, among other acts of violence, approximately one month before the offending conduct. At trial the prosecution gave written notice of its intention to adduce this evidence pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) (Act). The applicant also gave written notice of his intention to adduce evidence under this section regarding a tendency for the deceased to initiate attacks against the accused. The occasions of violence particularised by the applicant included the first instance of the tendency evidence the prosecution sought to admit relating to events about nine months before the offending. The applicant characterised this occasion as one instigated by the deceased causing a deep laceration to the defendant’s throat with a box cutter.

1. Section 97(1)(a), together with s 101 of the Act, governs the admissibility of the evidence in question.[1]

   [1]Neither counsel for the Crown nor the applicant made submissions on the application of the relevant regime of the law of evidence.  However, both parties appeared to proceed on the basis that the Evidence Act 2008 (Vic) applied, which commenced on 1 January 2010. Since the trial in this matter commenced after the commencement date of the Evidence Act 2008 (Vic), the law arising from that Act is the applicable law to these proceedings. R v Darmody (2010) 25 VR 209, 213–214 [14]–[21] (Nettle and Ashley JJA and Habersberger AJA).

97       The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence;  and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

1. The prosecution sought to lead the evidence on the count of murder to demonstrate the relevant fact in issue that the accused did not act in self-defence.[2]  In response to the prosecution summary of opening, the applicant had asserted, among other things, that he stabbed the deceased in self-defence and denied having assaulted her in the past, save when it was necessary to defend himself.[3]  The applicant sought to have the evidence excluded, submitting that it may be adduced as relationship evidence but not tendency evidence.[4]  The trial judge ruled that the evidence was admissible on the grounds that it was significantly probative of a relevant fact in issue and that its prejudicial effect, if admitted, was outweighed by its probative value.[5]

   [2]R v Middendorp [2010] VSC 147, [4] (Byrne J).

   [3]Ibid.

   [4]Ibid [9].

   [5]Ibid [22]–[23], [26]–[28].

1. The trial judge found the evidence was of significant probative value because it showed that the applicant would lose control in circumstances where an angry argument with the deceased would ultimately lead him to inflict violence on her.[6]  This rationally affected the probability, in a positive sense, of the applicant not honestly holding a self-defence belief.  Hence the trial judge directed the jury to the effect that the Crown relied upon the tendency evidence, for the purposes of rebutting the defence of self-defence in the charge of murder.[7]  His Honour said:

So as a matter of basic principle an accused man is entitled to be tried and you must focus upon the events, in this case the events of 1 September. 

There is an exception that has been carved out of that which entitles a party to seek to persuade the jury that something didn’t happen on this event, and in this case, the prosecution seeks to persuade you that this attack or this violence, the knife incident which caused her death, was not the product of self-defence.  What the prosecution seeks to put before you is evidence of other incidents which, take this last one [referring to the incident in which the applicant kicked the deceased with steel-capped boots], which were a couple of months before, 31 July, one month before.  What you will be told at the end of the day by the prosecution is that you should have regard to this event and say, ‘this is a man whose tendency is to attack the woman in circumstances other than in a self-defence situation,’ and this should encourage you to form the view that on 1 September he attacked her in the same way.  That’s the way the case is put.[8]  

[6]Ibid [26].

[7]Ibid [20].

[8]Transcript of Proceedings, Director of Public Prosecutions v Luke Middendorp (Supreme Court of Victoria, Byrne J, 10 March 2010) 203–204 (emphasis added).

1. The trial judge went on to make similar observations at a later point in the trial:

The other question is that the tendency evidence has to be directed to what might be called inaccurately unprovoked violence, that is to say violence in circumstances otherwise than in self-defence, because it will come as no surprise to this jury that there was violence between this couple and given the nature of the issue in the case, the principal issue, it doesn’t seem to me that it can do anything of a probative nature towards the issue of self-defence to say that this is a man who has struck this woman with a frying pan or in other circumstances with a boot unless it also appears that it was done in a non-self-defence situation, what I’ve called an unprovoked situation in that sense…[9] 

[9]Ibid 353 (emphasis added).  There are also other cases where the Crown has been permitted to adduce tendency evidence about an accused’s violence against the deceased in non-self-defence situations to demonstrate a guilty mind and to rebut the defence of self-defence.  See for example, KJM v R (No 2) [2011] VSCA 268, [17]–[19] and Appendix B (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA);  R v Azizi (No 2) [2010] VSC 658, [4]–[5] (King J).

1. The trial judge also directed the jury on the basis that the tendency evidence was relevant to the alternative offence of defensive homicide. On appeal the applicant contended that the tendency evidence was inadmissible on the ground that it was not significantly probative to the defensive homicide charge. He did not advance any submission that the evidence should be excluded on account of its prejudicial effect outweighing its probative force under s 101(2).[10] Rather, the gravamen of the applicant’s complaint was that the evidence should have been excluded under s 97(1)(b) on account of its lack of significant probative value and relevance to the charge of defensive homicide.

   [10]R v Hancock (Unreported, New South Wales Supreme Court, Court of Appeal, Gleeson CJ, James and Dowd JJ, 21 November 1996) 3 (Gleeson CJ, with James and Dowd JJ agreeing); R vLi [2003] NSWCCA 407, [52] (Hidden J, with Spigelman CJ and Dunford J agreeing in the result). See also Heydon, Cross on Evidence (2004, 7^th ed) [210125].

1. The applicant challenged the directions on the use of the tendency evidence in the context of a redirection to the jury on defensive homicide.  The redirection included the following passages:

Now we focus on the question of defensive homicide on the word ‘believe.’  So an essential feature of defence is that he has a certain belief and the belief that he has is that it is necessary to do what he did to defend himself from being killed, et cetera.  Defensive homicide looks again at that belief and says that if he didn’t have reasonable grounds for that belief, then it is defensive homicide…

Bear in mind that there are really two aspects of this belief.  There is first the situation that he perceived was confronting him and that is a situation where, and for the present purposes I am assuming, since we are at this point, that you are entertaining the idea that the deceased woman came at him with a knife, so we have the first situation, we have the woman coming at him with a knife and that’s one thing, did he have reasonable grounds for believing that, it was going to be harmful to him in the sense we are talking.  The second aspect of it, did he have reasonable grounds for believing that stabbing her in the way he did was necessary to avoid that predicament that he found himself in.  So that’s where we are focusing at this stage, on the grounds really for his belief in one or other or both of these aspects because his belief touches both those things.  He believes he is confronting a situation of requiring him to respond to protect himself, his life, and secondly, he believes that what he did or what is necessary for avoiding that situation. 

Now, how do you go about it?  You don’t say to yourself, ‘Well, I wouldn’t have believed it’ because that’s not what we are assuming, we are assuming he did believe that because that’s the point of logic you are at.  What you are saying is his belief was not based on a reasonable ground.  So you have regard to a number of factors.  You have heard a lot of evidence about these matters, the surrounding circumstances, the layout of the room,… The relationship between the parties and you have heard a good deal about that.  The prior conduct of the victim, and you have heard a good deal about that and much of that is contested, you will have to make up your own mind about her prior conduct.  The situation in which the accused stood, that we are not simply looking back now in the detached situation of a courtroom, but he is faced with a situation which has to be addressed immediately.  You can have regard, in order to determine whether or not his response, that is to say stabbing her four times, was a necessary response to whether or not that was necessary in the circumstances, and you will remember what has been said on behalf of the prosecutor that he could have pushed her aside, he didn’t have to stab her, or he could have pulled the knife out of her hand as indeed he did later, he didn’t have to stab her, so it was unreasonable for him to do that, it wasn’t necessary – I’m sorry, he did not have a basis for believing that that was necessary because the prosecution says there were other options, less disastrous options open to him.[11]

[11]Transcript of Proceedings, Director of Public Prosecutions v Luke Middendorp (Supreme Court of Victoria, Byrne J, 10 March 2010) 699–702.

1. Following the redirection senior counsel for the Crown requested that the trial judge clarify the redirection by elaborating on the relevance of the applicant’s prior conduct to particular elements of the offence.  The trial judge, defence counsel and the prosecutor discussed the potential relevance of the applicant’s prior conduct to determining whether or not there were reasonable grounds for the applicant to believe he was at risk of death or really serious injury or that there were reasonable grounds for the applicant to believe it was necessary to stab Ms Bownds a number of times. 

His Honour:   I shall say to them [the jury] they might have regard – should I say that, his prior behaviour?  We’re not concerned with whether he had the belief at this level, it is whether it is reasonable.

Defence:        Yes

His Honour:   Let’s suppose he has a very bad history and has behaved badly again and again and again, that might go to the fact of his belief, but if we accept that he had a belief that he was in a situation of self-defence would it bear upon the rational basis for that belief?  I think that is a matter for you Mr Prosecutor.

Prosecutor:     It is an objective standard, isn’t it?

His Honour:   Yes…

Prosecutor:     Has the prosecution proved that he did not have reasonable grounds?

His Honour:   That’s what you have to prove.

…

His Honour:   … it would be rather like saying to them [the jury] if they accept the evidence of his prior conduct and possibly that he has a tendency to attack, although that perhaps goes to the other side of things, but I am thinking that if he is a man of great violence, then for him he may well be minded to inflict great violence when it is not necessary. 

Prosecutor:     Did he have reasonable grounds to believe that when she had a knife, did he have reasonable grounds to believe that it was necessary for him to stab her in the back four times to stop her?

His Honour:   That’s the question, yes…

…

His Honour:   … What I will say to them is this, they should have regard to his prior conduct in this sense.  His evidence was, of course, that he did have a reasonable basis for it, that he had no option, I think that was the expression that he used, as he saw things at the time.  It could be said that if they find him to be a man of violence, that they might reject that evidence and say that he wasn’t doing it because he had no option, he did it because - - -

Prosecutor:     It was simply a violent response.

His Honour:   Yes, he is a violent man and he responds with violence inappropriately, so it is getting close to the disproportionate issue…[12]

[12]Ibid 706–708.

1. Defence counsel at trial affirmed that the trial judge should direct the jury on the relevance of the applicant’s prior conduct to the reasonable grounds of the applicant’s self-defence belief and did not take issue with the proposed clarifying direction arising from the exchange between his Honour and the prosecutor.

1. Following this exchange, his Honour made the following clarifying remarks:

I’ve been asked to raise two aspects of what I said and just to clarify matters.  I had indicated a list of matters which you might have regard to.  Don’t for a moment think that is the whole of the list you have to have regard to, they are simply the sorts of things you might.  One of them was the prior conduct of the deceased and I have been asked to bring to your attention also that a factor you might have regard to is the prior conduct of the accused man, depending as you find him, and that is a matter which you should have regard to.  If you make a finding of him that he is a man of a certain type, then you may, that might lead you to a conclusion that he did or did not have reasonable grounds for adopting the course of stabbing her four times as in fact he did.

The second matter is the other side of things.  I mentioned that one of the matters that you had been, that the prosecution had mentioned was that, well, his belief was not on reasonable grounds because, as to the necessity side of things, because he could have pushed her off and I have been asked to bring to your attention that that was in fact asked of him when he was in the witness box and he provided an answer, or he responded to it… So if you are interested in pursuing that, that’s where you will find what he says about it and you can make of that as you see fit, it is a matter for your particular concern.  So those are the two matters I wanted to raise with you and so I’ll let you return to your labours.[13]

[13]Ibid 712.

1. On appeal, the applicant relied on R v Li to submit that the tendency evidence was inadmissible as it had been admitted in the context of the murder charge.[14]  That case involved the use of tendency evidence with respect to one count of detaining for advantage and a separate count of common assault under the Crimes Act 1900 (NSW). Dunford J, with Spigelman CJ agreeing, found that the tendency evidence proffered by the Crown in relation to the second count was inadmissible, even though it was admissible with respect to the first.[15]

   [14][2003] NSWCCA 407 (Spigelman CJ, Dunford and Hidden JJ) (‘Li’).

   [15] Ibid [13] (Dunford J, with Spigelman CJ agreeing):

1. The conditions for admitting tendency evidence are not necessarily limited to the confines of a particular crime. The tendency evidence may be relevant to a fact, or element common to more than one crime. Under s 97(1) of the Act, and well established principle,[16] tendency evidence is not only directed at showing a tendency to commit a particular crime, but a tendency to act in a particular way or to have a particular state of mind – an observation also made by Dunford J, with Speigelman CJ agreeing, in Li.[17]  In this case, the particular issue was whether the prosecution could prove beyond reasonable doubt, that there were no reasonable grounds for the applicant to believe he was at risk of death or really serious injury or that it was necessary to stab the deceased four times to avoid any such risk.  Unlike Li, this is a case involving alternative counts arising from the same set of circumstances, with required states of mind that are similar in substance irrespective of structural differences.  While in murder it is the lack of a subjective (honest) belief regarding self-defence that the prosecution must prove, in defensive homicide it is the lack of reasonable grounds to support that belief.[18]  The applicant’s submission that the trial judge misdirected the jury because the tendency evidence was only relevant to the charge of murder is without substance.[19]

   [16]See generally Heydon, Cross on Evidence (2004, 7^th ed.) Ch. 11.

   [17][2003] NSWCCA 407, [11] (Dunford J, with Spigelman CJ agreeing). See also R v Azizi (No 2) [2010] VSC 658, [30] (King J).

   [18]See generally ss 9AC and 9AD of Crimes Act 1958 (Vic) and Babic v The Queen [2010] VSCA 198 (Ashley, Neave and Harper JJA).

   [19]The probative value of the tendency evidence should also be considered in the context of the defence case at trial.  The crime of defensive homicide was never actively pressed as part of the defence case.  Even in his closing address, counsel for the applicant at trial broached the issue of self-defence in terms of the complete defence to the charge of murder, and not in the terms of defensive homicide (Transcript of Proceedings, Director of Public Prosecutions v Luke Middendorp (Supreme Court of Victoria, Byrne J, 10 March 2010) 535).  When the trial judge charged the jury, his Honour noted that it might surprise the jury to find that they may have to consider the offence of defensive homicide, even though the entire trial had proceeded only on the charge of murder (Transcript of Proceedings, Director of Public Prosecutions v Luke Middendorp (Supreme Court of Victoria, Byrne J, 10 March 2010) 553).

1. The applicant’s submission that there was no substantial similarity between the applicant’s prior conduct and the impugned conduct is misconceived.  It was open to the jury to find the applicant’s prior conduct was substantially similar to the offending conduct.  The applicant’s submission is based on the erroneous assumption that when the jury turned to consider defensive homicide, it had made a finding in fact that the applicant was in a situation that called for acts of self-defence, and that any prior tendency to attack the deceased in non-self-defence situations was therefore not substantially similar or relevant.  While the lack of an honest self-defence belief was strictly a fact in issue on the murder count, for the offence of defensive homicide the belief is assumed to exist.  It is the lack of an objective dimension to the belief which is the fact in issue.[20]  The applicant’s submission substitutes for the assumption the jury is required to embrace, that the applicant had a subjective self-defence belief, an assumption that the circumstances actually required the applicant to act in self-defence.

   [20]See Babic v R (2010) 28 VR 297, 304 [31] (Ashley JA). See also DPP v Edwards [2009] VSCA 232, [6] (Hansen AJA, with Buchanan and Neave JJA agreeing).

1. In any event, the scope of tendency evidence is not as narrow as the applicant contends.  The Act is not framed in the terms, as recommended by the Australian Law Reform Commission, that ‘evidence of a person’s past conduct on some occasion should only be admitted to establish a tendency to act or think in a particular way and thereby infer similar conduct on some relevant occasion if it could be shown that the circumstances of the two occasions were “substantially and relevantly similar.”’[21]  While evidence of this sort will frequently constitute admissible tendency evidence,[22] it does not follow that evidence of prior conduct that is not ‘substantially and relevantly similar’ to the offending conduct cannot amount to admissible tendency evidence.[23] 

   [21]Odgers, Uniform Evidence Law in Victoria (2010) [1.3.6660].

   [22]Ibid [1.3.6660] and [1.3.6680].

   [23]Pfennig v R (1995) 182 CLR 461, 478–479, 481 and 483–484.

1. The necessary degree of similarity between the prior conduct and the offending conduct or state of mind depends on, among other things, the significant probative value of the evidence and whether the probative value of the evidence substantially outweighs any prejudicial effect it may have.[24]  Probative value in this sense ‘means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.’[25]  Accordingly, addressing the possibility that the jury were positively satisfied that the applicant had the requisite belief at the time of his offending, but had not had any such belief on any of the occasions the subject of the tendency evidence, it is arguable that the tendency evidence was not substantially similar but the tendency evidence would still possess probative value on the issue of the existence of reasonable grounds for that belief.  The Crown rightly submitted that it is reasonable[26] to contend that the evidence indicating the applicant had a tendency to attack the deceased in circumstances where the deceased posed no threat to him would affect, to a significant extent, the probability that there were, in the present case, no reasonable grounds to support the applicant’s belief. 

   [24]See Heydon, Cross on Evidence (2004, 7^th ed.) [21120] (and Thompson v R (1989) 169 CLR 1 cited therein).

   [25]‘Probative value’ in s 3 (Dictionary) of the Act.  See also Heydon, Cross on Evidence (2004, 7^th ed.) [21095]–[21130] (and the authorities cited therein).

   [26]Pfennig v The Queen (1995) 182 CLR 461, 482–483 (Mason CJ, Deane and Dawson JJ).

1. The tendency evidence adduced by the Crown was also relevant to the applicant’s state of mind because it may have affected the jury’s assessment of the applicant’s credibility.  Given that there were no other witnesses to the fatal struggle between the applicant and deceased, the circumstances of Ms Bownds’ alleged attack on the applicant and the ensuing confrontation was largely based on the applicant’s testimony.  The trial judge quite rightly clarified to the jury that it was entitled to rely on the tendency evidence to infer, or logically support, the fact in issue that there were no reasonable grounds to the applicant’s self-defence belief on the charge of defensive homicide.    

1. The trial judge’s clarifying comments and the earlier redirection do not bespeak appellable error.  In the context of the trial judge’s directions as a whole and the development of the defence case at trial, his Honour’s remarks appropriately directed the jury’s attention to the probative value of the tendency evidence.  The jury would have well understood that the tendency evidence relied upon by the prosecution and defence as bearing upon the likelihood of the existence of a subjective belief by the applicant on the count of murder, was also relevant to whether there was an objective basis for any belief that it was necessary to defend himself.  It was open to the jury to conclude that the applicant had a tendency to attack the deceased in circumstances that did not call for any act of self-defence.  That may have affected their view as to whether there were reasonable grounds for the applicant’s belief that Ms Bownds posed a risk to his life or might cause him really serious injury or that it was necessary to stab Ms Bownds four times for the sake of his safety.  It was also relevant to the credibility of the applicant’s evidence regarding the reasonable grounds for his claimed belief (or the lack thereof).  The tendency evidence was demonstrative of the likelihood that there were no reasonable grounds for the applicant to have an (assumed) honestly held self-defence belief or that it was necessary to stab the victim four times. 

1. Before leaving this ground it should not be overlooked that in assessing whether the tendency evidence does amount to significantly probative evidence for the purposes of s 97 of the Act, other evidence in the Crown case, such as the relationship evidence, was to be considered in conjunction with the tendency evidence. Section 97(1)(b) of the Act entitles the Court to have ‘regard to other evidence adduced’ by the party adducing the tendency evidence for the purposes of assessing its probative value.[27]  The Crown adduced various items of evidence demonstrating the mutually violent and acrimonious relationship between the applicant and deceased.  The Crown included numerous witness accounts by neighbours and persons known to either the applicant or deceased about their relationship.  There was considerable evidence from neighbours regarding police attendances to the Rosser Street premises on multiple occasions, frequent sounds of fighting, arguing, threats and items being broken.  In response to the prosecution notice to admit, the applicant admitted that the relationship between himself and the deceased was volatile and that they frequently fought and argued.[28]

   [27]R v Joiner [2002] NWCCA 354, [37] (Hodgson JA, with Simpson J and Smart AJ agreeing).

   [28]R v Middendorp [2010] VSC 147, [4] (Byrne J).

1. It is not uncommon for relationship evidence to be relied on for the purposes of self-defence.  In that connection, the trial judge’s redirection on defensive homicide and clarifying remarks clearly indicate that the tendency evidence was only part of the evidence that the jury should have regard to in assessing whether there were reasonable grounds for the belief.

1. The related complaint made under cover of the third ground of appeal regarding the description of the applicant’s character is also without force in light of the repeated cautions by the trial judge on the permissible use of the tendency evidence.  The applicant submitted the trial judge’s description of him as a ‘man of a certain type’ may have encouraged the jury to embark on ‘rank propensity type reasoning.’  However, the trial judge had previously, and quite rightly, warned the jury to only rely on the tendency evidence adduced by the Crown for permitted purposes.  His Honour directed the jury as follows:

The tendency evidence therefore is really assisting you to decide what happened on the night in question.  To put it very bluntly, we are not saying this man is a bad man and therefore he must be guilty.  We are not even saying this man has engaged in violence on earlier occasions therefore he must be guilty.  We have got to home [sic] right in on the issue in this case.  The issue in this case is not that he administered violence to her because he admits that he stabbed her.  The issue in this case is whether he administered violence to her in circumstances where he was not acting in self-defence.  That is the way the Crown puts it.[29]

[29]Transcript of Proceedings, Director of Public Prosecutions v Luke Middendorp (Supreme Court of Victoria, Byrne J, 10 March 2010) 625–627 (emphasis added).

1. The trial judge directed the jury in similar terms at other times during the trial, including when the Crown sought to first adduce the tendency evidence:[30]

… I wanted to bring to your attention, and to warn you it’s not appropriate to say, ‘This is a man who kicked a woman and therefore he’s an animal and therefore whatever he says is a lot of nonsense’.  You can’t simply jump like that.  You have to focus on what it is, the tendency that the prosecution will be asking you to find, and that in this case is not a tendency to violence, because its common ground that he stabbed the woman, so that’s obviously a violent thing, but they have to establish a tendency to be violent in a non-threatening, that’s to say a non-self-defence situation, which is a little bit different from that of being violent. 

[30]Ibid 206.  See also 352–357.

1. Counsel for the applicant acknowledged that on multiple occasions the trial judge stressed that the tendency evidence should be used with caution and not relied on for the purposes of countenancing a general propensity to violence, but only the tendency to resort to unsolicited violence against the deceased in circumstances where no real or perceived need for self-defence arose.  In the context of the trial judge’s warnings and directions to the jury throughout the trial, there was no real risk that the jury would rely on the impugned description of the applicant to embark on an impermissible line of reasoning.

1. For these reasons I would refuse the application for leave to appeal against conviction.

Grounds of Appeal – sentence

1. In the sentencing appeal, the applicant firstly contends the sentencing judge made erroneous findings of fact regarding callous comments by the applicant toward the deceased and also took into account irrelevant considerations from the victim impact statement of the deceased’s male companion, Mr Perez.  He secondly submits that the sentence was manifestly excessive and overstated the position taken in other cases dealing with defensive homicide.  The second of these matters is without substance.  As to the first of these matters, his Honour did in my opinion err in certain findings of fact.

1. One specific error complained of relates to the aggravating weight ascribed to the sentencing judge’s finding that the applicant persisted verballing the deceased ‘as she lay dying’.  In his sentencing remarks, his Honour commented:[31]

[The deceased] deserved the prospect of growing out of her addiction and living a life of an ordinary member of our society.  By your act you denied her this.  You denied her the most precious gift – her life.  And having done so, your callous comments addressed to her as she lay dying still chill my blood.

[31]R v Middendorp [2010] VSC 202, [17].

1. His Honour went on to find that the applicant’s comments were an aggravating factor of the offending conduct.[32]  The applicant submitted it was not open on the evidence for the sentencing judge to find that the applicant was taunting the deceased while she was lying on the street;  or that he appreciated the effect his words may have on her, especially given that the applicant had testified that he believed the deceased was not seriously injured by the stabbing.  The Crown conceded that the finding was erroneous and not supported by the evidence.

   [32]Ibid [21].

1. The Crown also confessed and avoided another specific error complained of.  The applicant submitted that the sentencing judge’s treatment of the victim impact statement of Mr Perez took irrelevant considerations into account.  Parts of Mr Perez’s statement indicated he was wracked with guilt because he gave inadequate evidence at trial and this had lead to the applicant not receiving a conviction for murder.[33]  The applicant submitted his acquittal for murder should not be held against him and that Mr Perez’s guilt in relation to that acquittal was an irrelevant consideration to assessing the gravity of the offending conduct. 

   [33]Ibid [16].

1. The Crown submitted that the trial judge’s finding, regarding the applicant’s comments to the deceased and treatment of Mr Perez’s victim impact statement, were not the driving forces behind the sentence that should be imposed in this case.  Whether or not they influenced his Honour’s sentence, the errors of fact would require this Court to allow the appeal if it is satisfied that a different sentence should be imposed.  Before addressing this question it is necessary to consider two further submissions made by the applicant.

1. The applicant also submitted that the sentencing judge incorrectly relied on the decision in DPP v Edwards as justification for according greater weight to the statutory maximum penalty in fixing a sentence.[34]  In DPP v Edwards, Hansen AJA, with Buchanan and Neave JJA agreeing, said:

Doubtless it is axiomatic, but it is important to keep in mind that the offence is defensive homicide (which but for the subjective element would be murder), and the fact that the legislation provides for the same maximum penalty for defensive homicide and manslaughter should not blur the lines between the two.  Moreover, in relation to the maximum penalty and its significance in sentencing, it is important to keep in mind the statements in R v AB (No 2)[2008] VSCA 39, [38]–[40]. In a sense, sentencing practice in defensive homicide cases may be regarded as in its infancy, and the present case may provide some guidance for the future. In the present appeal, where sentencing practice was not a specific ground of appeal and the sentences in the other defensive homicide cases were not the subject of attack, it is neither desirable nor appropriate to consider the matter of sentencing practice, such as it is, in defensive homicide cases. The task is confined to the present case, and this judgment is to be understood accordingly.[35]

[34][2009] VSCA 232 (Buchanan and Neave JJA and Hansen AJA).

[35]Ibid [43].

1. In his sentencing remarks, his Honour said:

Notwithstanding the statutory maximum of 20 years’ imprisonment, all of the reported sentences to which we have been referred have been of ten years or less.  Of particular importance in this regard is the Court of Appeal decision in Director of Public Prosecutions v Edwards where the court was not prepared to increase a sentence of ten years.  The observations of the court, however, make it clear that their Honours considered the sentence, in the circumstances of that case, was so disproportionate to the seriousness of the offence as to shock public conscience and to be manifestly inadequate.  Their Honours attributed this to the fact that the trial judge had started from a base that was too low.  This is doubtless a reference to the sentences of less than ten years that had been given in earlier cases.  The conclusion I reach from this is that the facts of Edwards warranted a sentence substantially greater than ten years and that the base from which I must assess your sentence must better reflect the decision of Parliament as to the maximum term of imprisonment for the crime of defensive homicide.[36]

[36]R v Middendorp [2010] VSC 202 [25] (Byrne J)

1. It is evident from the decision in DPP v Edwards that it was not intended to comment on current sentencing practice for the offence of defensive homicide.  However, that is not to say that the decision cannot provide some guidance to future Courts as to the applicable range of available sentences.  Hansen AJA, with Buchanan and Neave JJA agreeing, says as much in DPP v Edwards, particularly given the infancy of the crime of defensive homicide.  The sentencing judge concludes from the ‘facts of Edwards’ that regard should be given to the statutory maximum and its significance in sentencing.  His Honour did not rely on the decision as some prescription of the sentencing practice in defensive homicide cases nor should it be so viewed.

1. Finally, during the course of oral submissions counsel for the applicant did not pursue the ground of manifest excess, but the ground was not formally abandoned either.  According to research by the Sentencing Advisory Council published in September 2011, there have only been about 13 convictions on the charge of defensive homicide.[37]  The median sentence for that offence is in the order of nine years’ imprisonment, with the lowest recorded sentence being in the order of seven years and the highest in the order of 12 to 13 years.[38]  While these statistics provide only a very broad guide,[39] they are somewhat illuminating of the entire sentencing range for the offence given the relatively small number of defensive homicide sentences.[40]  I do not consider that the sentence was outside the range

reasonably open to the sentencing judge.[41] That is not of course determinative of the appeal as the applicant has demonstrated specific error. For this reason I would grant the applicant leave to appeal against his sentence. However, where there is error, s 281(1)(b) of the Criminal Procedure Act 2009 (Vic) requires the applicant to persuade the Court that a different sentence is appropriate. For the reasons given above and by the sentencing judge, I am not satisfied that a different sentence should be imposed.

[37]Sentencing Advisory Council, Sentencing Severity for ‘Serious’ and ‘Significant’ Offences: A Statistical Report (September 2011), 13.

[38]Ibid 15.

[39]Director of Public Prosecutions v Johnson [2011] VSCA 288, [36] (Redlich JA, with Neave and Bongiorno JJA agreeing);  R v Skuta[1998] VSCA 35, [22] (Phillips JA, agreeing in the result with Winneke P and Kenny JA); Director of Public Prosecutions v CPD(2009) 22 VR 533, [57] (Maxwell P, Redlich JA and Robson AJA).

[40]R v Svetina [2011] VSC 392, [47]–[48] (Nettle JA); DPP v Edwards [2009] VSCA 232, [43] (Hansen AJA, with Buchanan and Neave JJA agreeing).

[41]See, for example, Va v The Queen [2011] VSCA 426, [27] (Maxwell P, Redlich and Weinberg JJA); Sarvak v The Queen [2011] VSCA 300, [23] (Redlich JA, with Neave and Hansen JJA agreeing); Director of Public Prosecutions v Johnson [2011] VSCA 288, [33] (Redlich JA, with Neave and Bongiorno JJA agreeing).

1. I would dismiss the appeal against sentence.

MANDIE JA:

1. I agree with Redlich JA.

WHELAN AJA:

1. I also agree with Redlich JA.

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I do however share Hidden J’s reservations about the admissibility of the evidence as tendency evidence in relation to the second count, even though it may seem artificial to draw a distinction between the two counts in this regard; but in relation to the second count the only probative value of the evidence invited the line of reasoning ‘he has done it before, so he probably did it on the night in question’; and on that basis it was highly prejudicial and would not satisfy the test prescribed by s 101(2) [of the Evidence Act 1995 (NSW)].