R v Derich (Ruling No 2)

[2009] VSC 104

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 1402 of 2008

THE QUEEN

v

SHAUN NICHOLAS DERICH

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 - 13, 16 - 17, 19 - 20 March 2009
DATE OF RULING:	19 March 2009
CASE MAY BE CITED AS:	R v Derich (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 104

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Self defence – If self defence is reasonably open only in circumstances of a response to a possible threat of death or serious injury – s, 9AC of the Crimes Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Lewis	Robert Stary & Associates

HIS HONOUR:

1. Having heard submissions from counsel in the matter and having had the assistance of their final addresses I have reach the view that the issue of self defence in respect of the charge of attempted murder in this case is entirely covered by the statutory scheme provided therefore by s 9AC of the Crimes Act 1958 and subsequent provisions. Section 9AC provides:

A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder, while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.

1. The evidence of the complainant in this case is that he was stabbed to the chest after having been chased by the accused who was wielding a knife.  The accused made no statement to police concerning the circumstances in which the complainant suffered a chest wound from stabbing in his presence.  Further he gave no evidence on his trial. 

1. The judge must however instruct the jury with respect to self defence if there is any evidence on which a reasonable jury could decide the issue favourably to the accused.  Gibbs J observed in R v Meratovic,[1] the plea of self defence may seem to a Judge to be weak and tenuous but it is for a jury and not a judge to decide upon a plea of this kind, as upon any other question of fact, provided that there is evidence on which a reasonable jury could decide the issue favourably to the accused. 

   [1]1967 QLR 15 20.

1. In the present case the defence has drawn attention to three matters bearing on this issue.  First, the complainant's evidence is that before the final confrontation the complainant had armed himself with a mini baseball bat and had smashed a number of windows in the accused's car with that bat, albeit in circumstances where the accused had reversed the car at him and then driven at him. 

1. Secondly the complainant suffered a slash to the chest and, immediately below it and at right angles to it, a puncture stab wound into the chest cavity.  As the doctor who treated him said, the wound appears to reflect two blows.  The complainants says, there was a single blow, he attempted to stay the accused's hand as the knife slashed him but the accused was able to push the knife into his chest.  The defence scenario is that the nature of the wounds points to wounds caused in a struggle in which it is reasonably possible the accused turned back a knife by the complainant. 

1. Thirdly, the defence contends that the complainant's account should be regarded as unreliable for a series of other reasons. 

1. Mr Brown who appears to prosecute has conceded that self defence should be left to the jury. In my view this concession was properly made. The question which arises is on what basis should it be left? In my view if the jury were to form the view that it was reasonably possible the accused stabbed the complainant in self defence, they could only do so on the basis that it is reasonably possible he believed the conduct to be necessary to defend himself from the infliction of death or really serious injury. These are the circumstances contemplated by s 9AC.

1. I say this because it is apparent that both the baseball bat and the knife were manifestly capable of inflicting serious injury.  Indeed, the damage inflicted by the complainant to the accused's car with the bat and the injury caused with the knife to the complainant demonstrate this dramatically.  In short, if the jury regarded it as reasonably possible the accused caused the wound to the complainant when acting in self defence, then the circumstances of the case mean that they would necessarily also reach the conclusion, that it was reasonably possible that such belief arose from the necessity to defend himself from the infliction of death or really serious injury.  In turn there is no room in this case for the doctrine of common law self defence to apply to the possibility of a lesser threat.  There is no evidentiary basis on which the jury could conclude it is reasonably possible there was a lesser threat.  In my view this case falls within the terms of and is governed by the statute. 

1. For the sake of completeness I should add that the question of intoxication with respect to attempted murder is as a result governed by s 9AJ. 

1. I would also add that the present case illustrates that the current state of the law is quite unsatisfactory.  The jury must be charged with respect to a series of incidents and will have to be directed at some length with respect to the common law relating to self defence and also with respect to the statutory scheme.  There is an obvious potential for confusion and one cannot help but suspect that most onlookers would regard the law as most unfortunately confused.