R v Creamer - [2011] VSC 196

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0043 of 2010

THE QUEEN

EILEEN CREAMER

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-4, 7-11, 14-18, 21-25 and 28 February; 1-3 and 18 March 2011
DATE OF SENTENCE:	20 April 2011	Revised 6 December 2016, [36]
CASE MAY BE CITED AS:	R v Creamer
MEDIUM NEUTRAL CITATION:	[2011] VSC 196

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CRIMINAL LAW – Defensive Homicide – Domestic Violence – Dynamic of sexual relationship a form of domestic violence – Severity of injuries sustained by the deceased.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyoffry SC with Ms S. Flynn	Office of Public Prosecutions
For the Accused	Ms J. Dixon SC and Mr P. Smallwood	Victoria Legal Aid

HIS HONOUR:

Eileen Creamer, on 3 February 2011, you pleaded not guilty before me to the murder of your husband, David Creamer. On 3 March 2011, you were convicted of the alternative charge of defensive homicide. Your trial had been conducted on the basis that you were guilty either of manslaughter or defensive homicide.

It is not surprising that the jury concluded that you intended to cause death or really serious injury to your husband. The verdict of guilty to defensive homicide means that the jury entertained a reasonable doubt about the issue of self-defence. You could only have been convicted of murder if the jury were satisfied beyond reasonable doubt that at the time you committed the act or acts which would otherwise have been murder, you did not believe that it was necessary to do what you did to defend yourself from the infliction of death or really serious injury.

Defensive homicide arises when the jury are either satisfied that you were acting in self-defence or entertained a reasonable doubt about the matter. In addition, the jury must be satisfied beyond reasonable doubt that such a belief that you held about self-defence was not based on reasonable grounds. It is an important feature of this case that through your counsel you accepted that if murderous intent could be shown, then it was inevitable that you would be convicted of defensive homicide. It should be noted it was only when the matter came on for trial on 3 November 2010 that it emerged you accepted that you had killed your husband, although the prosecutor may have been informed of the change of approach shortly prior to that.

Although you did offer to plead guilty to defensive homicide, it was not unreasonable for the prosecutor to proceed to trial on the material as it then stood. However, it is recognised that you must receive credit for the way in which the trial was conducted.

The circumstances of your husband’s death can be outlined briefly. You returned home from Melbourne to Moe on Saturday 2 February 2008. You had spent Friday night in Melbourne with your lover. You arrived home at South Street, Moe at about lunch time on that Saturday. What happened…

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 Creamer

Details

AGLC: R v Creamer [2011] VSC 196
Case: [2011] VSC 196
Decision Date: 20 April 2011

CaseChat Overview and Summary

The matter of R v Creamer involved an appeal against conviction and sentence, where the respondent was found guilty of murder. The deceased, the respondent's partner, died from injuries sustained in a domestic violence incident. The primary issue before the court was whether the respondent's actions constituted a reasonable defence to murder under the circumstances of the case.

The court needed to determine whether the dynamic of the sexual relationship between the parties constituted a form of domestic violence, and if so, whether the respondent's actions were a reasonable response to that violence. Another crucial issue was the severity of the injuries inflicted on the deceased and whether they justified the respondent's belief that he was acting in self-defence. The court also considered whether the defence of provocation was available to the respondent, given the nature of the relationship and the events leading up to the incident.

The court found that the dynamic of the sexual relationship between the parties did constitute a form of domestic violence, and that the severity of the injuries inflicted on the deceased was significant. The respondent's belief that he was acting in self-defence was considered reasonable in light of the violence he had experienced from the deceased. The court held that the defence of provocation was available to the respondent, given the nature of the relationship and the events leading up to the incident. Consequently, the court allowed the appeal, quashed the conviction, and entered a verdict of manslaughter.

Orders