R v Bloem
[2008] VSC 266
•16 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 448 of 2007
| THE QUEEN | Plaintiff |
| v | |
| JOHN ANDREW BLOEM | Defendant |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 10–13, 16–17, 19–20, 23–4 June 2008 | |
DATE OF RULING: | 16 July 2008 | |
CASE MAY BE CITED AS: | R v Bloem | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 266 | |
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CRIMINAL LAW — Jury charge — Manslaughter and intentionally or recklessly causing serious injury — Concurrent application of self defence principles under the Crimes (Homicide) Act 2005 and the common law — Applicable test for use of force relating to prevention of a commission of a crime or the apprehension of a criminal
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Saunders | Solicitor for Public Prosecutions |
| For the Defendant | Mr H Mason | Robert Stary and Associates |
HIS HONOUR:
Throughout the course of this trial I heard submissions from time to time on issues raised by the evidence concerning self-defence and the Crimes (Homicide) Act 2005, and concerning the principles applicable where an accused acts in an attempt to prevent a crime or to apprehend criminals.
Prior to the commencement of addresses I indicated the course which I proposed to follow in the charge. Counsel for both the prosecution and the defence agreed with that course. I now publish these reasons to briefly record why I adopted the course which I did.
The presentment in this matter charged the accused with manslaughter, with intentionally causing serious injury, and with recklessly causing serious injury. A significant issue was self-defence. The accused maintained, amongst other things, that he was at all relevant times acting to defend himself from a threat to his person from both the deceased, whose death resulted in the manslaughter charge, and the complainant, whose injury resulted in the other charges.
At various times during the course of the evidence there was the potential for issues to be raised concerning the defence of property, rather than the accused’s person, and concerning conduct by the accused in order to prevent a crime or to apprehend criminals. There was also, at least at some points during the trial, the potential for an issue to be raised concerning the ejectment of trespassers.
The accused gave evidence in the trial and his evidence both simplified and narrowed the relevant issues. After the completion of his evidence I indicated to counsel that on my analysis of the position the issue of ejectment of trespassers did not arise. Both counsel agreed with that analysis.
I also indicated that, in addition to self-defence in the sense of defence of his own person, an issue arose in relation to the principles applicable if the accused was acting to prevent a robbery, and an issue arose in relation to the principles applicable if the accused was acting to apprehend criminals. In relation to robbery, the issue arose because the accused referred to an apprehension of a robbery in a call he made to D 24 whilst the incident was occurring, and because he coupled a concern about robbery with the concern he had in relation to his personal safety at one point in his evidence.[1] At three points in his evidence he referred to a motivation which he had at the relevant time to either enable the police to catch the deceased and the complainant “red handed”, or to have them apprehended.[2]
[1]Transcript 681.
[2]Transcript 664, 683, and 685.
In relation to the issue of self-defence in the sense of defence of his own person, I directed the jury in accordance with s 9AE of the Crimes (Homicide) Act 2005.
There was in this case, at one point at least, some potential for an issue to be raised concerning the concurrent application of the statute and the common law in the area of self-defence, such as has been dealt with previously by me in R v Pepper[3] and by Coghlan J in R v Gould.[4] Self-defence under the statute differs from the common law in relation to intoxication because of the operation of s 9AJ and, if the statute is a code, may differ from the common law in that defence of property is not included within the concept of self-defence.
[3][2007] VSC 234.
[4][2007] VSC 420.
In relation to manslaughter, it is difficult for me to see how the common law and the statute can operate together. On the issue of intoxication, it seems to me that concurrent operation would really just amount to ignoring the statute. As matters transpired, it was unnecessary for me to rule on the issue because no issue of intoxication arose here.
I charged the jury on the issues of self-defence in relation to manslaughter in accordance with s 9AE, and, as in the circumstances here there was no relevant difference in the principles applying to the other charges, I explained the principles to the jury in the same way in relation to the other charges and the alternatives.
In relation to the issues raised by the evidence suggesting defence of property and conduct to prevent a crime or to apprehend criminals I carefully considered the Full Court decision in R v McKay.[5] I was mindful in doing so that that decision was before both Zecevic v Director of Public Prosecutions (Vic)[6] and R v Portelli.[7]
[5][1957] VR 560 (“McKay”).
[6](1987) 162 CLR 645 (“Zecevic”).
[7][2004] VSCA 178 and (2004) 148 A Crim R 282 (“Portelli”).
The facts of McKay were in some ways analogous to the facts here. In that case, Lowe J held that the concept of self-defence extended to the defence of property and he held that the accused had had three relevant rights, being the protection of property, the discharge of the duty to prevent the commission of felony, and the discharge of the duty to apprehend a felon.[8] Dean J said it was not necessary to decide the exact nature of the relevant rights and assumed for the purposes of his decision that an accused should not be found guilty “if there is a reasonable doubt whether he honestly and reasonably believed that the shooting of a felon was necessary”.[9]
[8][1957] VR 560, 562, 564, 567.
[9][1957] VR 560, 568.
Smith J dissented in relation to the decision in the particular case, but his analysis of the relevant principles is not, in my view, inconsistent with the analysis of the majority and is of assistance. He held that there was a two stage test. The first stage was necessity, where the accused “must have believed and had reasonable grounds for believing that what he did was necessary”.[10] The second stage concerned proportionality. As to the interaction between self-defence and prevention of felony where the felony concerns that same property, Smith J said:
… cases of self-defence or defence of another against violence to the person involve questions so similar to cases like the present and there is so much overlapping between the two categories that I find it difficult to think that questions of necessity and proportion could possibly be tested in one way in relation to one of them and in another way in relation to the other.[11]
He went on to say that in the circumstances there, there was no room for the separate operation of self-defence in the sense of defence of property and prevention of commission of a felony or apprehension of a felon.
[10][1957] VR 560, 573.
[11][1957] VR 560, 573.
It seems to me that Smith J’s approach is the approach that ought to be followed. It means that the test applicable on the issue of prevention of a crime and apprehension of criminals is in substance the same as that applicable to self defence both under the Crimes (Homicide) Act in relation to manslaughter and under Zecevic. The issues are whether the accused believed the conduct to be necessary and whether he or she had reasonable grounds for that belief. Given the decision in Portelli, proportionality is not a legal requirement, but it is a factor to be taken into account. This approach also seems to me to be that set out in the relevant bench notes in the current charge book.[12]
[12]See 8.9.1.1, para 54.
I outlined these conclusions to counsel prior to the addresses. I later indicated that I proposed to charge the jury on the basis that self-defence concerned the defence of the accused’s person, and that the relevant issues were whether he believed it was necessary to do what he did and whether he had reasonable grounds. As to the accused’s professed concern about a robbery and his evidence he acted to apprehend, the issues were again whether the accused believed that what he did was necessary and whether there were reasonable grounds. Both counsel supported this approach.
I record that both counsel agreed that in the circumstances I should not direct the jury about any issue concerning ejectment of trespassers. Counsel for the Crown submitted that no such issue could arise on the evidence, particularly the evidence of the accused himself. I had reviewed the evidence and reached the same conclusion. Counsel for the defence indicated that he did not propose to rely on ejectment of trespassers in any way, that he did not propose to address on it, and that he would have no problem with me not referring to it.[13]
[13]Transcript 771.
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