R v Bloem - [2008] VSC 266

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bloem

Details

AGLC: R v Bloem [2008] VSC 266
Case: [2008] VSC 266
Decision Date: 16 July 2008

CaseChat Overview and Summary

The case of R v Bloem involved a dispute between the Crown and the accused, Bloem, concerning the alleged criminal acts of Bloem. The dispute was heard and determined by the Supreme Court of Queensland. The crux of the matter revolved around the legal principles governing self-defence in cases involving manslaughter and causing serious injury, and whether the self-defence principles under the Crimes (Homicide) Act 2005 and the common law could be concurrently applied.

The court was tasked with resolving the legal issues pertaining to the application of self-defence principles in the context of manslaughter and the intentional or reckless causing of serious injury. Specifically, the court needed to determine whether the principles of self-defence could be invoked in cases involving the prevention of a crime or the apprehension of a criminal, and if so, what test should be applied to determine the proportionality of force used. This required an examination of both statutory provisions and common law precedents to provide a coherent and legally sound resolution.

The court found that the principles of self-defence could indeed be concurrently applied under both the Crimes (Homicide) Act 2005 and the common law. However, the court held that the test for determining the proportionality of force in cases of self-defence must be strictly adhered to, particularly in instances where the force is used to prevent the commission of a crime or to apprehend a criminal. The court emphasised that the force used must be reasonable and proportionate to the threat faced, and that the accused's perception of the threat must be objectively assessed. The court concluded that Bloem's actions, while in the context of self-defence, did not meet the required standard of proportionality, thereby leading to the verdict of manslaughter.

The final orders of the court were that Bloem was found guilty of manslaughter. The court sentenced Bloem to a term of imprisonment, reflecting the gravity of the offence and the circumstances under which it was committed. The court's decision underscored the importance of balancing the rights to self-defence with the need to prevent excessive use of force in criminal matters.

Orders