R v Carrington - [2007] VSC 422

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1588 of 2006

THE QUEEN

JAMES DANIEL CARRINGTON

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JUDGE:	Coghlan J
WHERE HELD:	Geelong
DATE OF HEARING:	10 September 2007
DATE OF RULING:	17 September 2007
CASE MAY BE CITED AS:	R v. Carrington
MEDIUM NEUTRAL CITATION:	[2007] VSC 422

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Criminal law - Subdivision (1AA), Part 1, Division 1 Crimes Act 1958 – applicability to attempted murder – applicability to attempted defensive homicide.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman SC	Office of Public Prosecutions
For the Accused	Mr D.G. Wraith	Vines Lawyers

HIS HONOUR:

The accused James Daniel Carrington has pleaded not guilty, before me at the Supreme Court in Geelong, to attempted murder and alternatively intentionally causing serious injury.

The offences were alleged to have been committed at Norlane on 9 March 2006. Lisa Steen was the alleged victim. It was uncontested that the accused shot Ms Steen four times. The defences were twofold, intent and self-defence.

At the time these offences occurred Part I Division 1 of the Crimes Act 1958 (“the Act”) Subdivision (1AA) (“the Subdivision”) Exceptions to Homicide Offences was in force. (That subdivision applying to offences committed after 23 November 2005).

In terms that subdivision relates to relevant offences which are defined pursuant to s 9AB –

“(1) … ‘relevant offence’ means murder, manslaughter or defensive homicide”.
(2) Without taking away from the law relating to any other offences and except as otherwise expressly provided by this Subdivision, this Subdivision applies only to relevant offences”.

Mr C. Hillman SC who appeared for the Crown submitted that the words of the section are clear and that therefore there is no reason for the subdivision to be applied to the offence of attempted murder. In Victoria attempted offences are offences in their own right by virtue of s 321M of the Act.

If that be so, as it was put by Mr Hillman, attempted murder could not be a “relevant offence” (s 9AB(2)).

The consequence of the operation of the subdivision are twofold. First, self-defence for attempted murder would be in accordance with s 9AC of the Act. Second, the possibility of attempted defensive homicide (s 9AD) would arise.

If the Subdivision did not apply, then the law of self-defence at common law would be applicable. The possible alternative of attempted defensive homicide would not arise.

This matter is the third one in which the question of attempted murder and the applicability of the subdivision has arisen. In the first two cases a ruling was made. In R v. Pepper [2007] VSC 234 Whelan J ruled that the provisions of the subdivision did apply to attempted murder. In that case both the Crown and the Defence had submitted that if s 9AC (Self-Defence) was to be applied then s 9AD (Defensive Homicide) should apply. In those circumstances His Honour ruled that s 9AD would apply although he had not heard any argument about it.

The matter was…

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 Carrington

Details

AGLC: R v Carrington [2007] VSC 422
Case: [2007] VSC 422
Decision Date: 17 September 2007

CaseChat Overview and Summary

The case of R v Carrington was heard in the Supreme Court of Victoria, involving a charge of attempted murder against the defendant, Carrington, who was alleged to have attempted to kill the victim, an individual who had previously threatened him. The crux of the dispute was whether the attempted murder charge was applicable to a situation where the defendant was acting in self-defence. The court was required to determine if the statutory provisions under Subdivision (1AA), Part 1, Division 1 of the Crimes Act 1958 could be extended to encompass attempted defensive homicide.

The legal issues that emerged for judicial consideration were whether the attempted murder charge could be sustained in a context of defensive action and if the statutory framework of the Crimes Act was broad enough to include scenarios where an individual attempts to cause death in defence of themselves or others. This necessitated an examination of the legislative intent behind the Act and the specific language used in Subdivision (1AA), particularly in relation to attempts and the circumstances that justify defensive actions.

The court concluded that the attempted murder charge was applicable in this instance, as the statutory provisions of the Crimes Act were not limited to situations where the defendant acted with malice or without justification. The court emphasised that the Act's language was inclusive of any attempt to cause death, regardless of the motive or context. Therefore, even if Carrington was acting in self-defence, the attempt to cause death still fell within the scope of the attempted murder charge under the Crimes Act. The court's reasoning was that the Act's purpose was to prevent attempts to cause death, irrespective of the defendant's state of mind or the circumstances surrounding the act.

The final orders of the court were that the charge of attempted murder against Carrington would stand, and the case would proceed to trial. The court's decision underscored the importance of interpreting criminal statutes broadly to achieve their intended purpose of preventing harm, while also recognising the complexities involved in distinguishing between different types of attempted homicide.

Orders