R v Frank (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0331

Between:
THE QUEEN
-and-
JARROD LEONARD FRANK	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	12-15, 18 & 20 January 2021 22 January 2021 (written submissions)
DATES OF RULINGS:	20 January 2021 (Ruling 1); 5 March 2021 (Ruling 2)
DATE OF PUBLICATION OF REASONS:	5 March 2021
CASE MAY BE CITED AS:	R v Frank (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 7	First revision: 9 March 2021 Second revision: 6 September 2021

CRIMINAL LAW — Murder — Self-defence — Whether no case to answer — Circumstantial evidence and inferences — Whether accused could be convicted lawfully — Whether, on evidence at its highest for prosecution, inference that accused acted in self-defence could not rationally be excluded by jury — No case to answer — Jury discharged without verdict — Verdict of not guilty of murder entered on record — Crimes Act 1958 (Vic), ss 322H, 322I, 322K, 322N & 421; Criminal Procedure Act 2009 (Vic), ss 226 & 241(2)(b); Doney v The Queen (1990) 171 CLR 207; Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323; DPP v Illiopoulos & Ors (Ruling No 3) [2016] VSC 132.

CRIMINAL LAW — Procedure — Ruling that no case to answer expressly extended to manslaughter — Manslaughter not separately charged but an alternative verdict available on indictment for murder and in issue at trial — Whether relevant provision authorises Court to enter verdict of not guilty of manslaughter on record as well — Whether manslaughter “a charge on the indictment” — No power to direct such entry — Suggestion that legislative change be considered — Crimes Act 1958 (Vic), s 421; Criminal Procedure Act 2009 (Vic), ss 1, 213, 220, 226, 240 & 241.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Hayward	A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D Gibson	Victoria Legal Aid

HIS HONOUR:

Overview

The issues

This judgment contains two rulings. The first concerns whether, on the evidence led at trial by the prosecution, Jarrod Frank has no case to answer on either the charge of murder of Scott Bury or the unindicted alternative of manslaughter on the basis that the evidence is not capable of excluding self-defence.

The second ruling concerns whether, if there is no case to answer, s 241(2)(b) of the Criminal Procedure Act 2009 (Vic) (“the CPA”) allows a direction not only that a verdict of not guilty of murder be entered on the record, but also that a like direction be given with respect to manslaughter — in circumstances where the latter offence is not charged separately on the indictment but would have been left to the jury, had there been a case to answer.

Whether there is no case to answer

On 4 January 2018, Mr Frank was charged with the murder of Mr Bury at his unit in Bendigo the previous day. Three years later, on 12 January 2021, Mr Frank pleaded not guilty in this Court and a jury was empanelled to try the matter.[1]
[1]The case has a previous history both in this Court and in the Court of Appeal. See DPP v Frank [2019] VSCA 306, which will be discussed further below.

An unfortunate truth about this case is that the incident giving rise to Mr Bury’s death was precipitated by his own irrational and violent reaction to events that were as trivial as they were silly. Following proof, via an internet search by Mr Frank, that Mr Bury had lost their bet about the calibre of ammunition used in Luger handguns by German officers in World War II, Mr Frank added insult to injury by calling Mr Bury a “bitch”. Instead of conceding defeat and perhaps admonishing Mr Frank for his uncalled-for remark, inexplicably, Mr Bury reacted in the following ways. In anger, he took two kitchen knives from his drawer and stabbed Mr Frank to the chest with one of them (albeit causing only minor injury). Not content with that, when Mr Frank then fled outside to his car, which he was unable to start to make good his escape (because the keys were still inside the unit), Mr Bury, with more violence in mind, followed with knives in hand, and he picked up an iron bar from his garage as well. Next, after Mr Bury struck him with the iron bar through the driver’s window, Mr Frank managed to extricate himself from the car, and the two men engaged in a grappling struggle in the driveway. It was during this struggle, on the prosecution case, that Mr Frank murdered Mr Bury by fatally stabbing him to the abdomen with one of the knives.

While there was no dispute from Mr Frank about the fatal stabbing, his principal defence was self-defence. In short, he claimed that, in the course of the struggle, he had to turn the knife on Mr Bury in order to save himself. His counsel, Mr Gibson, also disputed murderous intent and raised accident in his defence response.

On 18 January, after the close of the prosecution case, Mr Gibson submitted that his client had no case to answer on either murder or manslaughter because the evidence was incapable rationally of excluding self-defence.

While Mr Hayward, who appeared for the Director, properly recognised several difficulties with the prosecution case, he nevertheless opposed that submission. In particular, he submitted, among other things, that it was open to the jury to find beyond reasonable doubt that to stab Mr Bury to the abdomen was an unreasonable response in the circumstances as Mr Frank may have perceived them.

In my view, this was such an overwhelming case of self-defence that Mr Frank could not lawfully be convicted of either form of homicide. The evidence was all one way. More particularly, taking the evidence at its highest for the prosecution, no rational jury could exclude the hypothesis that Mr Frank acted in self-defence when inflicting the fatal wound. As a result, on 20 January, I upheld the submission of no case to answer.

I gave detailed ex tempore reasons for my ruling but indicated that I would publish more extensive reasons later. This judgment contains those more extensive reasons.

I then brought the jury in and explained what I was about to do, and why. Next, pursuant to s 241(2)(b) of the CPA, I discharged the jury without verdict and directed that a verdict of not guilty of murder be entered on the record.

Whether a like direction is authorised with respect to manslaughter

As indicated earlier, my second (and still outstanding) ruling concerns whether I should give a like direction with respect to manslaughter. Manslaughter was not charged separately on the indictment but was in issue at trial and would have been left to the jury, had there been a case to answer. I heard oral submissions on the point on 20 January after discharging the jury but reserved my decision and later received written submissions as well.

Having reflected on the matter, I have come to the view, albeit with some hesitation, that, since manslaughter was not “a charge on the indictment” within the meaning of s 241(2)(b) of the CPA, that provision does not authorise the giving of such a direction. My reasons for this conclusion follow later in this judgment.

That said, I think that this result may well be caused by a legislative oversight. Whether or not that is so, I have suggested that the legislature might consider an amendment to s 241(2)(b) to allow a direction of this kind in appropriate cases.

Summary of evidence at trial

Before addressing each ruling more closely, it is necessary that I summarise the evidence led at trial, and in some detail.

Mr Bury and Mr Frank

Mr Bury was aged 49 at the time of his death. He lived in a unit at 211 King Street in Bendigo.

Mr Frank was 40 at that time. He is now 43. He lived in Strathfieldsaye, which is an outer suburb of Bendigo. His mother lived next door.

Mr Bury and Mr Frank were casual acquaintances, but not friends.

Background events of 2 January 2018

On 2 January 2018, Mr Frank and Andrew Lentjes had a chance meeting. The two had been friends for many years but saw each other only infrequently. They agreed that Mr Frank would stay at Mr Lentjes’s home in Bendigo for a night or two.

On the same day, Mr Bury went to a shop in Bendigo called Off Ya Tree to return a vape (which is a type of electronic cigarette). He complained to the shop’s attendant Stephanie O’Bree that the vape was not working properly, saying it was broken. He shouted, spoke irrationally, was agitated and aggressive, and stood close to her in a manner that she found intimidating. Ms O’Bree relented, and told him that she would keep the vape overnight to test it.

After Mr Bury left the shop, Ms O’Bree wrote up an incident report, the contents of which she confirmed in evidence. The report appeared to give a little more of the colour of the exchange. For example, included in it was an account of Mr Bury yelling that the vape did not heat up to 180 degrees, which, he said, was the temperature required for vaping THC (i.e. tetrahydrocannabinol). He claimed that he tested it with a thermometer and that, if those in the shop could get it to heat to 180 degrees, he would stick it up his arse. Despite its name, Ms O’Bree and her colleague “Johnno” told Mr Bury — with straight faces, it seems — that the shop did not promote or recommend the use of illegal substances in any of its products. That did not assuage Mr Bury one iota.

Resourcefully, however, Ms O’Bree and Johnno decided that they would test the vape in Mr Bury’s presence. And so it was that they placed a small amount of damiana into the vape and tested it to see if any vapour was produced. Lo and behold, the vape produced a large amount of vapour. Despite this, Mr Bury was adamant that the vape would not reach 180 degrees. He ranted that he was broke, sick with emphysema, that it was a waste of money, and that it did not heat up like it was supposed to. He reiterated that he would gladly have the vape shoved up his rectum if the shop could get it to work.

At this point, Johnno rang their regional manager, who advised that the shop should keep the vape for 24 hours in order to conduct further testing. This advice was passed on to Mr Bury, who left his name but would not leave a contact number, as he did not have one.

Background events in central Bendigo on the morning of 3 January 2018

The following morning, on 3 January 2018, Mr Frank drove his car into central Bendigo in order to obtain a loan from a business called Money3. Mr Lentjes went with him. Mr Frank first obtained an income statement from Centrelink and an account statement from his bank, which he needed in order to obtain the loan. At about 11:00 a.m., the two men went to Money3, where Mr Frank handed over the paperwork. He was told to come back in about half an hour. Mr Frank and Mr Lentjes then walked towards Cash Converters in Pall Mall.

At about the same time, Mr Bury returned to Off Ya Tree to collect his vape. Ms O’Bree told him there was no fault with the device.[2] Again, Mr Bury was agitated and aggressive. He invaded Ms O’Bree’s personal space, and shouted, swore and waved his arms around. Concerned at Mr Bury’s behaviour, a young man in the shop intervened on Ms O’Bree’s behalf. Ms O’Bree rang triple-zero. She told the operator that Mr Bury was unarmed but that she suspected he was “under the influence” and that he was “exceptionally aggressive”. He heard this and came very close to her, almost reaching over the counter. After the young fellow suggested Mr Bury should leave, he did just that, and headed towards Cash Converters.
[2]Subsequently, Ms O’Bree wrote another incident report, which was received in evidence as well. This summary is a combination of those two sources of Ms O’Bree’s account.

A little later, Mr Frank and Mr Lentjes happened across Mr Bury at Cash Converters. Mr Frank recognised Mr Bury and they struck up a conversation. Subsequently, the three men walked back to Money3, where Mr Frank obtained his loan.

Only goodness knows why, but it was at about this point that Mr Bury and Mr Frank began to debate the burning question of the calibre of ammunition used in Luger handguns by German officers during World War II. Mr Bury said words along the lines of, “I’ll bet $100 I’m right because I robbed a bank two years ago and used a nine-millimetre Luger.” Mr Frank had a contrary opinion. He agreed to the bet. In order to determine who was right, Mr Bury tried to use a passing teenager’s mobile phone to Google the topic, but that was unsuccessful.

Travel to Mr Bury’s unit

Instead, it was decided that they should use Mr Bury’s home computer to search the internet to settle the controversy. Accordingly, Mr Frank then drove Mr Lentjes and Mr Bury to the latter’s unit at 211 King Street. As shown by the time stamp on CCTV footage taken from the home of Jaron Rettalick, whose house was situated directly across the road from Mr Bury’s unit, the three men arrived at about 11:51 a.m. (The parties agreed, however, that the time stamp on the CCTV was about nine minutes fast. Unless otherwise indicated, when referring to the CCTV hereafter, I shall mention the time indicated on the time stamp, and not the actual time.)

Events inside the unit

Upon their arrival, Mr Frank parked his car in the driveway, just next to the opening to the garage. All three men got out of the car and went into the unit via the garage.

(As the viewer looks at the CCTV footage, the parked car is seen from the rear, but angled with the front a little to the left; and the opening to the garage is to the left of the car, but is concealed from view by the edge of the unit. The internal door between the unit and the garage is at the opposite end of the opening to the garage, further to the left, and is also concealed from the viewer. This is all apparent when the CCTV footage is considered along with photographs and a plan of the unit that were received in evidence.)

On the evidence of Mr Lentjes, once inside the unit, he sat down on a chair near the doorway, with the kitchen to his left. Mr Bury went to a desk with a computer at the other end of the open plan room to search the internet on the topic of the bet. After Mr Bury finished, Mr Frank went to the computer and took a turn. Google proved him right. Mr Bury did not take it well. Unfortunately, as foreshadowed, Mr Frank made it worse by saying to Mr Bury words along the lines of, “Hey, bitch, here you go.”

Mr Bury, however, reacted wholly irrationally. Obviously incensed by these events, he moved quickly to a kitchen drawer, took out two carving knives (each about 12 to 14 inches long), and said, “You’ve called the wrong bloke ‘bitch’ in the wrong house.” Menacingly, Mr Bury moved the knives in a crossing motion in front of his chest, as if he were sharpening them. Mr Lentjes told him to put the knives away. Mr Bury walked towards Mr Frank with the knives pointed at him. Mr Frank, who had to walk towards Mr Bury to escape through the doorway to the garage, got up from the computer and walked in that direction. Mr Bury, however, stabbed Mr Frank to the heart region of his chest with one of the knives. This caused a small cut and some bleeding. When Mr Lentjes saw the stabbing, he said something like, “Youse are fucking crazy. Come on, Jarrod.”

Mr Lentjes then left the unit back through the garage and into the driveway. The CCTV time stamp shows that about sixteen minutes elapsed between the three men entering the unit (at 11:53.12-23) and Mr Lentjes’s exit (at 12:09.45).

Shortly after his exit, Mr Lentjes heard a bang and glass breaking. He also heard Mr Bury yell out something like, “You’re really fucked now, cunt.”

(Crime scene evidence showed that a window or glass sliding door next to the internal doorway to the garage was shattered. As we shall see shortly, in his police interview — which was conducted the next day — Mr Frank said that, at some point after Mr Bury produced the knives, he threw a chair at him and that Mr Bury also threw a chair, one of which went through the window.)

Events in the driveway, including the alleged murder

Mr Lentjes said that, shortly after Mr Bury yelled, “You’re really fucked now, cunt,” Mr Frank came out of the unit.

In fact, the CCTV footage shows Mr Frank running into the driveway at 12:09.50, only five seconds after Mr Lentjes left the unit. At 12:09.57, after moving to the driver’s side door of his car, Mr Frank lifted his shirt and looked down at his chest. He then walked to the bonnet, before getting into the driver’s seat at 12:10.12. At 12:10.24, the car rolled backwards about a metre or so, at which time Mr Frank was in the driver’s seat and Mr Lentjes was standing beside the driver’s door. Between 12:10.36 and 12:11.07, Mr Lentjes went to the bonnet, fiddled with it, lifted it and ultimately went to close it.

On Mr Lentjes’s evidence, about a minute after he came outside, when at the bonnet and looking into the car through the windscreen, he noticed that Mr Frank had blood coming though his shirt. Mr Lentjes went to the bonnet to help start the car, because, to do so, it required wires in the engine bay to be fused together. During that process, however, Mr Frank indicated that he did not have the keys (which were still required to start the car) but that Mr Bury had them.

At that stage, Mr Lentjes saw Mr Bury come to the area underneath the roller door of the garage (which, I should add, is only just out of sight on the CCTV). Mr Bury now had the two kitchen knives in one hand, and, with the other hand, he picked up a steel bar from beside a wall in the garage. Mr Lentjes said to Mr Bury something like, “Come on, mate, give us the keys so we can get going,” to which he responded, “You’re not getting the fucking keys.” Mr Bury then “took off” around behind Mr Lentjes and went to the driver’s side door.

On Mr Lentjes’s account, when at the car door, Mr Bury “started hitting [Mr Frank] through the window with the steel bar”. The steel bar “has come out of [Mr Bury’s] hand and gone in the car or somewhere … and then he started to kick the driver’s door and that went on for five or six times, backwards and forwards type of thing”. Mr Lentjes believed that Mr Bury still had the knives in his other hand. Mr Frank was trying to open the door and Mr Bury kept kicking it shut. Mr Lentjes was not sure what part of Mr Frank’s body was being hit, but he thought perhaps his arm. He also thought (but guessed, really) that Mr Frank was struck three or four times. Mr Lentjes was unsure what happened to the steel bar, but he thought it may have slipped from Mr Bury’s hands and ended up inside the car. When taken to his police statement, Mr Lentjes agreed that he had said this, and that this is what had happened: Mr Bury lent forward and hit Mr Frank through the window with the bar across his arm or his leg and, as he did this, Mr Bury lost hold of the bar and Mr Frank had gained hold of it. In further questioning, he added that he did not see “a whole lot of it” and was unsure whether Mr Frank did in fact grab the bar or pick it up.

Mr Lentjes said that he then moved from the front of the car, around the passenger side and the back, and to near the front door (so, about 270 degrees around the car). By that time, the other two men were rolling around and wrestling on the driveway. He did not hear them say anything to each other.

At one stage, Mr Lentjes saw a knife on the driveway, which he kicked away. (He was shown the CCTV footage and purported to identify the moment that that occurred, but it was not entirely clear to me.) He did not see how that knife came to be on the ground. When the two men were wrestling, he did not see either of them with the other knife or the steel bar.

Mr Lentjes then decided to leave. He said something like, “Fuck youse, I’m out of here,” and turned and made his way down the driveway.

Mr Lentjes said that at no time from the moment he saw him (Mr Bury) under the roller door to the time that he (Mr Lentjes) left the premises did he see any blood or injuries on Mr Bury, whether on his hands, body or shirt. Nor did he see Mr Bury injured with a knife. At no point did he see Mr Frank either holding a knife or inflicting any injuries on Mr Bury.

Returning to the CCTV recording that covers the events described by Mr Lentjes in the driveway, from 12:11.09, Mr Bury can be seen coming from the garage area, heading past the front of the car and to the driver’s door. From 12:11.11, Mr Bury is at the driver’s door and Mr Lentjes closes the bonnet and opens it again.

From 12:11.13, while quite close to the driver’s door, Mr Bury can be seen moving about, although it is unclear what he is doing. He steps back, winds up for a swing with his right hand towards the driver’s window, and completes that swing. While the object cannot be seen, it is implicit in the nature of the swing that he is holding something in his right hand at this time (for example, a steel bar). From 12:11.18, Mr Bury recoils his right arm and appears to throw a second swing (or it may be a punch) in the same direction. It is also possible that he is grappling with Mr Frank at this point. At the same time, his body and left arm move closer to the driver’s window.

From 12:11.20 to 12:11.26, Mr Lentjes closes the bonnet and heads around to the passenger side of the car (or to the left side, as we view the CCTV footage). Mr Bury continues to struggle in some fashion at the driver’s window. Mr Frank appears to get out of the car (although it is not clear by what means) and, at about the same time, Mr Bury’s bottom appears to go to ground, albeit briefly, with him perhaps holding the window sill of the car (or Mr Frank) with his left arm.

From 12:11.27 to 12:11.37, Mr Lentjes moves to the rear of the car and then to its right side, and is facing Mr Bury and Mr Frank, who, at times, are obscured partly or wholly by Mr Lentjes and/or the rear right corner of the car, albeit only briefly. During this period, Mr Bury and Mr Frank continue to struggle; Mr Bury gets to his feet; both men appear to be quite upright for a period, still grappling; then they go to ground, still grappling; and Mr Lentjes is looking in their direction. It is possible that, at about 12:11.36, Mr Lentjes kicks at, or uses his foot to move, something on the driveway. (This may well be the knife about which he gave evidence.)

From 12:11.38 to 12:11.48, Mr Lentjes turns away and heads down the driveway (towards the camera), as if to leave. Mr Bury and Mr Frank are still grappling on the ground during this period, but on their knees towards the latter part. Mr Lentjes reaches the footpath and turns to his right (to the viewer’s left).

From 12:11.49 to 12:11.54, Mr Lentjes continues along the footpath and out of view. Mr Bury and Mr Frank are still grappling, but manage to get to their feet, sometimes bending over, sometimes more upright. They move closer to the driver’s door. However, because of the angle on which the car is parked, they are obscured partly by the right rear corner of the car for a moment or two.

From 12:11.55 to 12:12.15, the grappling between the two men continues, but with Mr Frank bent over, for a moment or two, from the hips at 90 degrees to his legs, as if attempting to avoid a strike.

At 12:12.16, the grappling ceases, as each man appears to break away from the other. Over the next few seconds, Mr Frank walks down the driveway (towards the camera), as if to leave. Mr Bury bends down as if to pick up something from the driveway.

From 12:12.24 to 12:12.29, Mr Frank lifts his shirt as he walks down the driveway, while Mr Bury continues to attempt to pick up an object or objects from the driveway.

From 12:12.29 to 12:12.44, after reaching the footpath, Mr Frank turns 180 degrees and heads back down the driveway towards Mr Bury. Still bent down initially, Mr Bury then stands up and moves towards Mr Frank. Mr Frank delivers a right-foot kick towards Mr Bury, but does not connect. Mr Bury responds with a swing or lunge with his right hand at Mr Frank, who evades contact. Mr Bury then turns back to his left and leans down as if to pick up something near the wall of the neighbour’s premises (to the right of the viewer). In his evasive action, Mr Frank turns full circle and back towards the car. Mr Bury then moves aggressively towards Mr Frank, who takes further evasive action and heads from the rear of the car to the left (passenger) side (away from the viewer) and then around to the front of the car. Mr Bury bends down as if to pick up something with his right hand and transfers it to his left hand. He then appears to pick up something else in his right hand.

From 12:12.44 to 12:12.48, Mr Bury moves down the left side of the car and out of sight to his left (as if to go into his garage).

From 12:12.48 to 12:14.40, Mr Frank moves about the driver’s door, as if looking for something, and appears to get into the driver’s seat for a period. He eventually goes to the bonnet, which he opens and then closes, and then moves back to the driver’s door. He goes to leave, then turns back and appears to bend down to pick up something near the rear of the car. He then leaves, turning to his right (the viewer’s left) as he reaches the footpath, and eventually walks out of sight.

Mr Bury’s movements after Mr Frank and Mr Lentjes left the unit

At 12:21.29 on the CCTV — which is about nine minutes after he left Mr Frank and turned into his garage — Mr Bury can be seen walking down his driveway (towards the viewer) and then to the house of his next door neighbour to his left (the viewer’s right), which was the home of Sarah Jenkins.

Ms Jenkins gave evidence that, at about 12:15 p.m. on 3 January 2018, her children came and told her that there was a man at the front door. It was Mr Bury. He was bent over a chair near the door, saying, “Help me, help me, I’m dying.” Ms Jenkins could see a significant amount of blood coming from through his shirt above his belly button, and he appeared to have blood on his stomach and injuries to his stomach and hands. She called triple-zero and applied pressure to his wounds. Police and then ambulance officers arrived and took over his care.

About five or ten minutes before Mr Bury arrived, Ms Jenkins heard a commotion coming from Mr Bury’s unit, which sounded “mechanical, with banging”. She also heard two male voices, one of which said something like, “Let it go, let it go.”

Mr Retallick also gave evidence that, at about 12:30 p.m. the same day, Ms Jenkins’ children came to his front door saying that someone had been stabbed and they wanted his help. Mr Rettalick went across and saw Mr Bury lying on his back near Ms Jenkins’s front door. He had injuries on his abdomen, there was bloodstaining coming through his shirt and he had blood on his hands and his back. Mr Retallick assisted while Ms Jenkins gave first aid.

The prosecution also led from Mr Rettalick that, in about March or April 2017, when at his home, he heard a male and a female yelling outside. He went out to check, armed with a baseball bat, and saw Mr Bury throw a woman to the ground and the two of them punching and kicking each other. In his view, they were “going a bit crazy”. Mr Rettalick pointed the baseball bat at Mr Bury, who was aggressive and told him to keep his nose out of it.

While he had other CCTV cameras on his home, this incident was the reason Mr Retallick installed the one trained on Mr Bury’s driveway. He gave police the CCTV footage recorded that day.

Mr Frank’s movements after he left Mr Bury’s unit

After he left Mr Bury’s unit, Mr Lentjes went to the Bendigo train station. About five or ten minutes later, he saw Mr Frank there. This was a coincidence — they had not arranged any meeting. He asked Mr Frank where his car was. Mr Frank told him that it was back at Mr Bury’s address. Mr Lentjes did not ask Mr Frank what had happened after he left; and Mr Frank did not tell him.

The two men took a taxi to the Windermere Hotel, where they had lunch. Later, they took a bus back to the train station, and then walked to Mr Lentjes’s house in Flora Hill, arriving at about three or four o’clock. Mr Lentjes went out to the shops for about 30 minutes, while Mr Frank stayed at the house. About 30 minutes after Mr Lentjes’s return, Mr Frank said that he was going to take a taxi to pick up his car. He said, “Hopefully, he has woken up to himself and will give me the keys back.” Mr Lentjes took this to mean that Mr Frank did not think that anything serious had happened to Mr Bury.

Evidence of blood deposits and other things at Mr Bury’s unit

Police attended Ms Jenkins’s house at 12:20 p.m., when Mr Bury was still there. One officer assisted with Mr Bury, while others, including Sergeant Luke Kinder and Senior Constable Nathan Guerin, went next door to investigate.

There was a trail of blood droplets from Ms Jenkins’s driveway, along the footpath and back down Mr Bury’s driveway, as well as smears of blood on the garage roller door and droplets on the floor of the garage and inside the unit. Mr Frank’s car was still in the driveway. The glass sliding door next to the unit-to-garage internal door was smashed. The two knives and the steel bar were located at different points on the garage floor, and each was bloodied. (These items were tendered as exhibits, but were kept inside plastic containers.)

From 4:50 p.m., Leading Senior Constable Joshua O’Neill and other crime scene examiners conducted a closer examination of the scene, including the car. They took various photographs and also swabs of some of the blood deposits. The keys to Mr Frank’s car were located on a bench inside the unit. LSC O’Neill confirmed that the knives were a Stanley Rogers brand and a Raco brand respectively.

Forensic biologist Samantha Logan also attended the scene. In her opinion, later DNA analysis showed that Mr Bury’s blood was deposited on the left of the driver’s seat of Mr Frank’s car, as was DNA from Mr Frank (although it was not possible to say from what biological source it came, such as trace DNA or blood). One possibility explaining that deposit was transference — i.e. Mr Frank came into contact with Mr Bury’s blood and Mr Frank transferred it to the seat.

Blood droplets swabbed inside the unit, on the outside of the car (near the front door), in the driveway, on the footpath and in Ms Jenkins’s driveway contained Mr Bury’s DNA. So too did blood smears found on the floor of Mr Bury’s garage and the roller door.

Ms Logan was asked whether she could say that Mr Bury received a bleeding injury while inside the unit or while outside. In her view, there was insufficient evidence from the blood deposited to indicate one way or the other. Nor was she able to determine the sequence in which the blood was deposited at the scene.

Forensic pathologist’s evidence of Mr Bury’s injuries and cause of death

Forensic pathologist Dr Joanna Glengarry conducted an inspection of Mr Bury’s body at 8:00 p.m. on 3 January 2018 at the Victorian Institute of Forensic Medicine in Southbank, and then an autopsy from 10:00 a.m. the next day.

Dr Glengarry was informed — and there was no dispute about these facts — that Mr Bury was admitted to Bendigo Base Hospital at 12:45 p.m. on 3 January 2018 and died at 1:06 p.m. as a result of a stab wound to the abdomen. He had had an emergency laparotomy, which found intra-abdominal blood (which was suctioned), and he became asystolic (i.e. his heart stopped beating). Mr Bury was 180 centimetres tall and weighed 87 kilograms. On a previous occasion, he had had part of his lung removed (because of emphysema). Mr Bury had been prescribed methadone prior to his death.

Dr Glengarry noted that there was a stab wound on the right side of Mr Bury’s abdomen, which was 15 to 20 centimetres in depth, penetrating the outer skin, the front wall, fatty tissues, part of the small bowel, part of the large bowel and the liver. The estimate of depth variation is a function of the flexibility of the abdomen. That is to say, a knife need not be 20 centimetres long to cause a wound that is that deep, because the abdomen may compress when the knife moves through the organs and against the outer skin. On a scale of mild to moderate to severe, Dr Glengarry opined that the infliction of this wound with a knife would have required at least moderate force. The trajectory of the wound was a little upwards from the horizontal when the body is in the standing position, with almost no deviation from left to right. This wound, and no other, was the fatal wound.

There were also three separate cuts to the abdomen; two cuts on the back (which could have been caused in the one action); a cluster on the back of the left forearm (again, which could have been caused in the one action); and multiple cuts on each hand, including through the tendons on a couple of fingers. These cuts would have required mild force to inflict.

In Dr Glengarry’s opinion, the cuts to the tendons of the fingers could have limited Mr Bury’s ability to grip things. The cuts to the hands and fingers could be described as “so-called defensive injuries”, meaning there may have been some contact with a knife while Mr Bury was alive, the cuts having been sustained in an act of self-protection, whether by attempting to deflect, stop or grab, or grapple with, a knife (held by another).

It is entirely possible, however, that such injuries resulted from Mr Bury handling a knife himself, such as by his own fingers slipping while using it, although some of the cuts are not typical of that type of mechanism. That said, if he were holding two knives in the one hand, quite a complex constellation of injuries could be inflicted. While the injury to the back of the thumb would be less likely from mishandling a knife, in Dr Glengarry’s opinion, it is entirely plausible that slipping with two knives in one hand could certainly result in cuts in different angles across different areas.

Finally, there were some blunt force injuries, including bruising and a split to the skin on the left eyelid; a tear to the fingernail of the right ring finger; injuries to both elbows, the right wrist, the front of the right arm, the left shoulder and upper arm, and both hands; and bruises and abrasions on the front of both knees. The bruising to the right forearm could have resulted from gripping by another person.

Ordinarily, a person would be expected to feel pain from the stabbing to the abdomen and the various cuts, including to the hands and fingers. However, the effects of adrenaline and the nature of the flight or fight response may mean that pain is not felt until well after a conflict. Dr Glengarry agreed that there are many examples of persons suffering serious wounds but not being aware of having been stabbed or cut until a good deal later.

Further, while the stab wound to the abdomen was fatal, it may not have been debilitating for quite some time. For example, it would take at least some minutes, possibly longer (perhaps up to 30 minutes), before symptoms resulting from blood loss might begin to appear, such as being unsteady on one’s feet, confused, light-headed or dizzy.

As for blood loss, a total of 500 millilitres of blood remained in Mr Bury’s abdomen (remembering, that some had been suctioned at the hospital). The internal organs would have bled, as would the external stab wound. Blood from the internal organs may or may not have come out of the external wound, or may or may not have been noticeable for some time, depending upon how much Mr Bury bled, as well as his movements and resulting pressures. There is also Mr Bury’s shirt, which, depending upon its fit, may have concealed any bleeding for some time, but may have become noticeably bloodstained at some point. Similarly, bleeding may or may not have been apparent for some time after the cuts to the hands were suffered, but some bleeding may be seen as soon as 30 seconds later. It is also difficult to estimate the amount of blood that may have become visible.

Toxicological results indicated the presence in Mr Bury’s system of cannabis, methadone and Clonazepam. These chemicals had no impact on the cause of death. The methadone may have dulled any pain he felt, albeit only slightly.

Dr Glengarry opined that it is not possible to determine the order in which the various injuries were inflicted. The fatal abdominal injury could have been inflicted first in the sequence, last or at any point in between. The same is true of all other injuries.

In cross-examination, Dr Glengarry said that, at an earlier time, the prosecutor showed her the CCTV footage of the incident in the driveway. She was unable to see the infliction of any injuries on that footage and could not pinpoint any specific time when an injury might have been sustained. The most she could say was that, towards the end of the footage, Mr Bury appeared to be unsteady on his feet, but that, prior to that time, she did not notice anything.

While she could not express an opinion either way, Dr Glengarry considered it plausible that some of the injuries may have been caused inside the unit. She added that Mr Bury’s shirt may have concealed them too.

Dr Glengarry accepted that the injuries could have been caused in the course of a violent struggle between two people involving a knife. She also agreed that the fatal wound could have occurred if the two men were rolling around on the ground with a knife, and one of the men rolled on top of the other, with the weight of the body being pressed down on the (handle of the) knife, or the body coming down on top of the (blade of the) knife.[3]
[3]Neither counsel asking the question nor Dr Glengarry in her answer used the words in parentheses, but the context of the questions and answers implies that that was her evidence (see T 325). I assume that, had it become necessary to do so, this is evidence upon which Mr Gibson may have relied to suggest an accidental stabbing, or at least as another piece of evidence going to lack of murderous intent.

Dr Glengarry accepted that the cuts to the hands could be explained by the two men fighting over the knife and Mr Bury grabbing the blade. She also accepted that, if Mr Bury attacked Mr Frank with a knife but it slipped in his hand, that could explain some of the hand injuries, but not necessarily all of them.

Dr Glengarry also opined that, if his hands were injured inside the unit, Mr Bury still would have been able to grip weapons thereafter, but may have been impaired in doing so if his tendons were cut by that stage or if there were blood on his hands. Further, the “adrenal response” in a conflict may well allow him to overcome any such impediment.

The jury, by giving a note to me through the foreperson, asked whether it was possible that any of the “sharp force injuries” were self-inflicted before, during or after the conflict. No objection was taken to the question. Dr Glengarry’s answer was that all of the injuries around the abdomen and the hands could be self-inflicted (although she regarded the distribution of hand injuries as unusual). Whether the back injury could be self-inflicted depended upon Mr Bury’s ability to reach that area with a knife (about which ability she offered no opinion).

In re-examination, Dr Glengarry was asked to explain why, when asked to comment on the injuries to the hands in the possible scenario that Mr Bury had hold of the knife, she said that she might not necessarily expect all of the injuries to be inflicted to his hands in that way. Her answer was as follows:

… [P]art of that opinion was based around having hold of the knife in a hand and injuring that hand and the injuries — as you could see on the diagram, some of them were in [on?] different planes or sort of on different angles. For example, there was one on the inside of the middle finger, the back of the thumb, the inside of the … back of the right thumb, the inside of the right middle finger, between the right index finger and thumb. Those are all in slightly different directions, so that makes it less and less likely that it is you holding the knife, injuring that hand. However, in the setting of … if there are multiple knives involved, that ups the complexity a bit and, as defence pointed out, if you’re holding the knife and injuring the other hand, I will admit that certainly could explain the injuries to the back of the thumb, but it is the complexity and the multiple numbers of injuries that just start to make it less and less likely that they are all inflicted by mishandling the knives in the setting of a struggle, so hence why I think some of those may not be from that, but it is actually very hard to be dogmatic about that.

Dr Glengarry was also asked about her opinion that it is possible that some of the injuries may have been caused by contact with glass. She clarified that that opinion did not apply to the stab wound to the abdomen (for which she favoured a knife as the cause, given its depth). The cuts to the abdomen could result from broken safety glass, but she might have expected scratches as well if that were the cause. She considered the cuts to the back as “certainly possible”. There is, however, no pattern of the cuts that allows her to say that they were definitely caused by a knife or definitely not a knife.

Mr Frank’s arrest

At 9:02 a.m. on 4 January 2018, police arrested Mr Frank and he was taken to Bendigo Police Station.

Mr Frank’s interview with police (the first part)

From 10:17 a.m., the informant Detective Senior Constable Kyle Simpson conducted a video-taped interview with Mr Frank “in relation to the death of Mr Bury”. The recording was played to the jury and became an exhibit.[4]
[4]The interview was edited by agreement between the parties.

The more important aspects of Mr Frank’s account in the first part of the interview may be summarised as follows.

His first description of the incident was this:

Well, all I got to say is it was one hundred percent self-defence and … that’s all there is, just one hundred percent self-defence and that, yeah, the truth will prevail.

Mr Frank said that he and Mr Lentjes[5] came across Mr Bury in Bendigo. Mr Bury and he had a bet concerning the firearm used by German officers during World War II. In order to settle the bet, they drove to Mr Bury’s home to research the issue on the internet on his computer.
[5]Mr Frank declined to name Mr Lentjes early in the interview, but there was no uncertainty about whom he was speaking.

When inside the unit, Mr Bury used the computer first, and then Mr Frank did so, after which Mr Bury became angry. In response, Mr Frank said something like, “Shut up, bitch,” or, “You’re a miserable bitch.”

Mr Bury then said something like, “This is the wrong house to call me a bitch.” He went to the kitchen drawer and took out two carving knives. Mr Frank was unarmed. Mr Bury came towards him and stabbed him to the chest with one of the knives. Mr Frank jumped back as the stabbing occurred, but the knife still got him in the chest, near the heart. (He pointed to the injury to his chest.) If it had turned and gone between his ribs, he said, it would have been “lose-lose”. Mr Lentjes was standing there, watching these events inside the unit.

Mr Frank said that, at some point after Mr Bury produced the knives and kept coming at him, he threw a chair at him in response, and that Mr Bury also threw a chair, one of which went through the window. Mr Frank also said that he disarmed him of one of the knives and threw it down, but Mr Bury picked it up again.

Mr Frank then went straight outside and got into his car in order to get away. He went to start it, but was unable to do so because he had no keys. They were inside the unit.

Mr Frank was about to do a runner when Mr Bury came outside and to the door of the car. He had two knives in one hand and a metal bar in the other. He tried to hit Mr Frank (who was still seated in the car) with the metal bar, and did in fact strike his elbow. The metal bar came at him “pretty bloody fast”.

Mr Frank felt he had to get out of the car, which he did. He said that the two of them somehow went to the ground. He then explained how the stabbing occurred:[6]

No, I’ve turned his — what he had in — on his — in his hands, by the sound of things, and it’s hit him. I felt that but, yeah, not — can’t — you know, it wasn’t — there wasn’t even much blood, sort of thing, you know. But I knew that he’d been — you know, he’d been hit.

[6]My emphasis.

Mr Frank thought Mr Bury would be in hospital for a week, maybe two at the most. It never occurred to him that Mr Bury would die. Even when he saw the news that he had died, he was still sceptical about it. Mr Frank said:[7]

I’m thinking, “Oh, I haven’t done anything wrong here.” … I feel bad but, to be honest, I can’t — I can’t — I have no guilt because I mean I’m sorry the bloke’s dead, I am. I’m dead-set sorry, but what else [was I to do?] — I mean, anyway, yeah. …

[7]My emphasis.

When asked whether he hit him outside, Mr Frank said:[8]

I didn’t punch him once. … Not one time. And you can’t say there’s any mark on … [a]part from that one — turned out to be lethal. And I can’t even say where that went. Must have been the torso … [It was his] knife. … His — one of those carving knives, and that can be proven because it was … one of those two carving knives what hit here [meaning, Mr Frank’s chest, to which he pointed at this stage].

[8]My emphasis.

Medical examination of Mr Frank

Soon after this point, Detective Simpson suspended the interview so that Mr Frank might be examined by a forensic physician, Dr Angela Sungalia, in order to document his injuries, and so that a swab may be taken for the purposes of analysing his DNA. Mr Frank consented to both procedures.

Dr Sungalia gave evidence at the trial. She noted, among other things, the following injuries to Mr Frank:

(a) a curved linear scratch or abrasion to the left side of the jaw — which may have been caused by a fingernail or a narrow object, including the tip of a knife;

(b) a small red bruise to the upper left limb, with some minor abrasions on the left elbow;

(c) a very fine abrasion across the inside of the left wrist, which has the appearance of an incision at its end — which was caused by a sharp object, such as the tip of a knife; and

(d) a horizontal tapering incision on the left breast — which was caused by a sharp object, such as the tip of a knife.

Dr Sungalia agreed that these incisional injuries could easily have been sustained in the course of a violent confrontation, and that it just so happens that the very tip of the knife that caused them did so in a glancing fashion rather than a more pressed-against-the-skin fashion.

Despite some initial confusion, Mr Hayward made it clear that the prosecution conceded that Mr Frank sustained these injuries in the course of the violent conflict with Mr Bury.

Mr Frank’s interview with police (the second part)

Detective Simpson resumed the video-taped interview with Mr Frank at 5:03 p.m. the same day.

Mr Frank repeated that, when inside the unit, after he uttered the “bitch” insult, Mr Bury stabbed him:[9]

Inside the unit, I got stabbed — I’m like — I got my back to the — I got my — I’m on the computer and he’s going — he’s getting upset and angry and — and throwing little names at me and that. And I said, “Shut up, bitch. Bitch. Bitch.” … It’s all I said, “Just shut the hell up, bitch. I just want to get this up,” you know. Yeah, he’s gone round, “Don’t care. This is the wrong house to call me a bitch.” He’s gone to the bloody — his kitchen thingo, I know now it’s his kitchen drawer, and got out two carving knives — or, I don’t know if it was one or two of the — two. He got out two and — at that one — at that time. And he didn’t have a metal bar then. Now — which I — I think — I might be wrong, could be copper. I’ve — got a look at it as copper look, had a copper look to it.[10] But, I don’t know, I might be wrong. And he’s got — oh, and that’s when he’s come walking back and I — I’ve turned around and he was at the drawer and I was in — I had me back to him, as I said. I got up and was, “What are you doing in” – whatever. And still said – I called him a bitch. “What are you doing? Like, if you want to do punch — if you want — get on with it, let’s punch on, you know. Put those fucking things down.” And, “You’re in the wrong house, you’re in the wrong house,” he was saying, “You’re in the fucking wrong house and this is my house.” So basically he was saying to me — I took it as he’s got law on his side. And he plunge – come running at me and plunged the fucking knife at me. Yeah, I can’t see myself just standing there but I can’t remember jumping either, but — and I think I did. I had to have. I don’t know. I can’t — but you see that all happened so fast … And I have — he — I — he’s come at me as I’ve gone around. I — he — he — oh, I managed to get it — I’ve gone for him, and I managed to get — after he’s done that, I’ve stared down and I looked down. It’s just like I just don’t — I don’t know. … I don’t know what to say. … I grabbed one off him. … I managed to get one off him, right, and throw it and he’s picked it straight back up. … Well, all I know is he was slow and … he was off his face on something, and — but he meant business, and he’d already done this. And I just — he — he cut and I was — he made angry that he’d done that. … And he came at me again. So I’ve — at some stage, either before or after I threw … the stool or thingo at him to get him away.

[9]My emphasis.

[10]The metal bar seized from Mr Bury’s garage and received in evidence did indeed have a copper look to it.

When asked whether he used a knife inside the unit, Mr Frank said this:

No, no. Not at all. I’m telling you right now, … I didn’t want to use it. I mean … it’s a carving knife, you know what I mean?

Immediately thereafter, Mr Frank went on to reiterate how, when and in what circumstances “the fatal blow” occurred:[11]

I — I mean that’s a — he — what — that — the fatal blow must — it’s happened when we were tussling out the front and he … and I don’t know where — I’m telling you right now I don’t know exactly what part it has — all I know is now it’s gone into his torso. And, obviously, if it’s passed on it’s gone into his torso. And it was — I managed to turn it around in his hand, right, and I don’t think there’d be a fingerprint on it but it was the same knife that — his knives that he was using against me was what — one of those ones was what … was — outside. … That was — and he did not get — he wouldn’t have any other mark on his apart from that one, the fatal blow, and one — and one only, and we were tussling on the ground and I turned it around on him, because he was trying to get it into me. And that’s all there is to it. … I’m telling you right now I wasn’t thinking about him, to be honest. I couldn’t — it’s only I — there was — he — he wanted to — he wanted to kill me. That’s all there is to it. I mean he was … a little bit older and a little … bit off his face and I was, you know — I mean a lot off his face, I suppose. And … I was defending myself the whole time. And he — well, you can’t say he had a mark on him, one mark on him, expect for that fatal blow that happened outside — that wasn’t — I got — and when I got up I could have — I could have easily — he kept coming at me with the knives after that. Now, that’s a fact. That is a fact and it will be on CCTV if you … are being honest there.

[11]My emphasis.

When asked whether the only injury he inflicted was the fatal injury, Mr Frank said this:[12]

[The only injury] is the fatal injury. … Must — that — I know that. I didn’t throw a punch at him. All I did was try — I got the knife off him and threw it. I didn’t go to use it against him, anything like that, you know. … I wasn’t intoxicated. … I had no … intoxicants in me, … but it’s very confusing because I … thought he was — ‘cause he was still yelling and screaming, chased me out the driveway. I left my car there, you know what I mean, with the keys. … I’m trying to start the car.

[12]My emphasis.

Later, Detective Simpson explained that the autopsy revealed a fatal stab wound to the middle of the abdomen, about 15 to 20 centimetres in depth. When asked whether he could provide any explanation for that, Mr Frank said this:[13]

No, because all I know is he … got up and there was — he had blood coming out of him and I … didn’t know. I felt … that I got him but it was — we were — I couldn’t see because we were tussling, you know. I … could not see. … [A]ll I know is … I was defending myself, and that’s all there is to it. And I took — I turned his weapon on him. … It was his hand … I thought that I pushed, you know ‘cause he was trying to get into me, you know. … He wouldn’t let go. I wanted to leave and that’s all there is to it. … I mean … I’m just … defending myself.

[13]My emphasis.

When Detective Simpson reiterated the site of the abdominal injury, which he described as “significant”, its depth and the fact that it ultimately was fatal, Mr Frank responded in this way:[14]

Okay. He — so he’s got two carving knives in his hand. What’s that? That’s a murder fucking — that’s a murder, you know. You can’t — don’t — he should — you know what I mean? …

[14]My emphasis.

When Detective Simpson pointed out what he described as three “slash” injuries near the site of the main injury, Mr Frank said that that must have happened at the same time. He denied having a knife in his hand and reiterated that he was defending himself. He said he did not “want to fuck with big arse carving knives”. He said he was trying to get away and then Mr Bury:[15]

[has] come running out, bang, and … hit me with the bloody metal bar but I’ve managed — I think I must have managed to — ‘cause I remember he’s got a big swing up and I’ve managed to grab his arm. …All I can say is it must have happened during — once I’ve stood up out of the car to protect myself, because he was gunna cut — he … seemed to — he’s on his land and he’s gunna — he was gunna kill me. But it wasn’t worth — none of that crap over a bloody bet.

[15]My emphasis.

When asked about how the cuts to Mr Bury’s back occurred, Mr Frank said this:[16]

Nuh. I have no idea. All I can say is during the tussle, or I’ve thrown the — I know I’ve thrown the chair at him as he’s coming at me inside. That’s the only way that could have happened. No, unless it happened at the same — around the same time, tussling with him, you know, grappling, and he’s — yeah. I’m trying to — trying — he’s got two carving knives. ... He was standing when I left. And I didn’t want to fuck with — no way. I just wanted to get out of there. Left me car there. … And I can’t feel guilty about what I did.

[16]My emphasis.

Similarly, when asked about (what the detective described as) “defensive-type” injuries to Mr Bury’s hands, “slashes”, and his explanation for them, Mr Frank said this:[17]

No, I cannot. All I can say is what happened was all outside during the tussle. I’ve thrown … a chair at him, which he’s thrown back, and I know one went through … not from me … one went through a window. … I just didn’t have a knife on me …, if there’s any cuts on him, they’re all from … his knives that he would have — he had in his hands when I left.

[17]My emphasis.

Mr Frank continued:[18]

Oh, mate, you’re making me feel like I’ve done something wrong here. What am I supposed to do when someone’s fucking coming at me like that? I’ve — I’ve turned his weapon on him during a tussle. I can’t see how I — I — I knew I’d gotten him. I knew that for a fact no matter what, because I saw the blood as I was leaving and I thought, “Oh, fucking Jesus.” … [I thought] he was gunna be all right.

[18]My emphasis.

When the detective said that this is a “fairly serious” matter, Mr Frank responded in this way:[19]

Yeah, he died. A bloke’s died but I mean I’m defending myself. And if it’s on CCTV you can see everything. He … was still, “Come back and … you’re dead …” … I’m as innocent as can be as far as I can — I know. I know it, you know. He’s coming at me and he would not stop, even when I seen he had blood on me. …

[19]My emphasis.

When asked about his own injuries, Mr Frank said this:

[W]ell, it’s this one [showing his right wrist]; this one from where he’s hit me with a metal bar while I’m sitting down [showing his left elbow]; … this one must have happened during the scuffle, which I knew about straight away because it was bleeding a little bit yesterday when … it happened [showing his right wrist again]; I didn’t know anything about this one [pointing to his back]; and well, one, that if he had have, this one here [showing his chest injury]. I mean if he had have — had have been turned … on the side, it could have gone through … my ribcage and … straight on through the ribs and straight into the heart.

When told that he was going to be charged with murder, it is fair to say that Mr Frank appeared shocked. When asked whether there was anything he wished to say in answer to the charge, Mr Frank said this:[20]

No, except that it was one hundred percent self-defence, and that happened outside during the tussle. … No, I’m — this is not guilty — I’m not guilty all the way. All the way, and I don’t want a solicitor. Don’t need a solicitor.

[20]My emphasis.

The interview concluded soon afterwards, with Mr Frank consenting to having his fingerprints taken.

Other evidence of the informant

Detective Simpson[21] gave evidence that, when he attended Mr Bury’s premises on 3 January 2018, there was evidence of significant disturbance within the unit. There were upturned dining table chairs, plus a smashed window corresponding to a sliding door (which was next to the internal door between the unit and the garage).
[21]By the time he came to give evidence, Detective Simpson was now a Detective Acting Sergeant.

Police seized a laptop computer found on a desk in the far corner of Mr Bury’s lounge-kitchen area. Forensic examination revealed that, at about 11:55 a.m. that day, the computer had been used to search “World War II Nazi officers Luger sidearm what was calibre”.

Police also obtained Mr Bury’s bloodied shirt, photographs of which were put into evidence.

In cross-examination, without objection, Mr Gibson elicited from Detective Simpson the following information about Mr Bury. On 2 July 2015, Mr Bury was picked up from his address at 211 King Street in a taxi by a drug dealer known as “Chris”. The two men argued about drug money owed by Mr Bury to Chris. The taxi driver dropped the men off at an ANZ Bank ATM in Bendigo. A short while later, the taxi was flagged down by Mr Bury, who wanted to return to his home. Chris told the taxi driver not to take him. The taxi driver was nervous, as Mr Bury appeared to her to be aggressive and desperate for his next hit of drugs. He yelled at her to “go, go, go” and leave Chris behind. Mr Bury hit the taxi driver’s seat in desperation. Chris, who seemed worried about the taxi driver, ended up getting into the taxi, as if to protect her from Mr Bury. During the ride to King Street, Mr Bury unbuckled his seatbelt, leaned over and pushed and shoved Chris, and grabbed his arm and pulled it back towards the back seat. The taxi driver then saw Mr Bury pull a large butcher’s cleaver out of his backpack and wave it around, as if he was going to cut Chris’s arm. Chris broke free. Then Mr Bury looked at the taxi driver through the rear-view mirror and yelled at her to drive him home to King Street. Mr Bury had the knife up near his face and glared at the driver. She was terrified and felt that Mr Bury would hurt her with the knife if she did not co-operate. Upon arrival at King Street, Mr Bury put the knife back in the bag and threw a $10 note at the driver for a fare, and then got out.

The driver was told by her boss not to report the matter. She was distressed by the incident but continued doing taxi fares. About three hours later, the driver received a job to attend 213 King Street. She did not remember this to be (next to) the address she had attended earlier. A young girl, about 12 years old, looking upset, jumped into the passenger seat, followed by Mr Bury, who got into the back seat. Mr Bury became upset with the driver, because he believed that she was helping Chris out and was related to him. Mr Bury said that Chris had just come over and smashed all the windows in his house and threatened his kid. Mr Bury said that, if this ever happened again, he would come and smash all the windows in the driver’s house and threaten her kids. The driver was terrified that Mr Bury would target her children.

On 24 November 2015, Mr Bury received a twelve-month undertaking to be of good behaviour[22] for offences concerning these incidents.
[22]In fact, it was described as a good behaviour bond, but that cannot be a correct description. This is because that sentencing disposition was not, and is no longer, available in Victoria where the accused is an adult.

Detective Simpson also gave evidence that, before he interviewed Mr Frank, he had viewed the CCTV footage and spoken to Dr Glengarry (and to another detective who had also spoken to her) about Mr Bury’s injuries. He also had read at least a portion of Mr Lentjes’s statement before the second part of the interview with Mr Frank.

Detective Simpson accepted that he approached the interview in the belief that most of the injuries to Mr Bury, including the fatal injury, were inflicted inside the unit. This was because he could not see on the CCTV footage the infliction of any of the injuries about which he had been informed.

The detective agreed that his initial belief was in error. He accepted that the prosecution case continued to be conducted under that mistaken belief at the initial (unsuccessful) bail applications in the Magistrates’ Court and this Court, at the committal hearing, at the subsequent (successful) bail application in the Magistrates’ Court, at the Director’s (unsuccessful) appeal to this Court against that order for bail and when the matter was first listed for trial in this Court before another judge (in October 2019).

Detective Simpson accepted that the prosecution then sought to change the case to one in which it was said that the injuries (including the fatal injury) could have occurred either inside the unit or outside the unit, but that the judge ruled that the prosecution was not entitled to put its case in that way. Instead, said the judge, the prosecution either would have to allege that the injuries (including the fatal injury) occurred outside the unit or would have to discontinue the case. The next day, it was announced that the prosecution would allege that all of the injuries occurred outside the unit, which is the way in which the case has been put at this trial.

Detective Simpson agreed that, on the prosecution case, it was a total period of 30 to 40 seconds during which the injuries were inflicted.

In response to the suggestion that the CCTV footage showed Mr Frank acting in self-defence, the detective conceded that, in one portion, Mr Bury was clearly the aggressor and that, at another point, they appeared to be fighting over a knife. (I took Detective Simpson to be referring to Mr Bury’s behaviour at the door of the car in the former instance, and his and Mr Frank’s behaviour during the struggle to be the latter.)[23]

Ruling 1: No case to answer on either murder or manslaughter

[23]I should add that this evidence in particular may well have been regarded as inadmissible opinion evidence. As I understood Mr Gibson, however, this and other like evidence was elicited from the detective to show the shifting and inconsistent approaches of the prosecution to this case. Evidence of this kind, in turn, would have supported jury directions regarding forensic disadvantage suffered by Mr Frank as a result of the changes in the prosecution case and the unfair way in which the police interview had been conducted. The Court of Appeal had suggested, and the Director had conceded, that such directions may be appropriate (see DPP v Frank [2019] VSCA 306 at [52]).

Self-defence in Victoria in respect of murder and manslaughter

As I explained earlier, Mr Gibson’s submission that there was no case for Mr Frank to answer was based on the argument that the evidence was incapable of excluding self-defence.

In this State, prior to 2005, self-defence was governed solely by the common law. The leading case was Zecevic v DPP.[24] In short, the question to be asked was:[25]

whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

[24]Zecevic v DPP (1987) 162 CLR 645.

[25]Zecevic v DPP (1987) 162 CLR 645 at 661 (per Wilson, Dawson and Toohey JJ; Mason CJ agreeing at 654).

From 23 November 2005, a statutory form of self-defence replaced the common law in homicide offences, whereas the common law was left to apply to other offences.[26] Ignoring the burden and standard of proof for the moment, an accused would be found not guilty of murder if he or she carried out 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”.[27] Thus, unlike the common law test, which contained a mixture of subjectivity and objectivity, this statutory test was purely subjective, and it expressly extended the requisite belief by the accused to the infliction of death or really serious injury.
[26]Various provisions were inserted into the Crimes Act 1958 (Vic) by the Crimes (Homicide) Act 2005 (Vic), including s 9AC (self-defence for murder), s 9AD (defensive homicide) and s 9AE (self-defence for manslaughter).
[27]Crimes Act 1958 (Vic), s 9AC (now repealed). The statutory offence of defensive homicide was also created by s 9AD (but that provision is also now repealed). Section 9AD provided that “a person who kills in circumstances that, but for s 9AC, would constitute murder will be guilty of the indictable offence of ‘defensive homicide’ if he or she did not have reasonable grounds for his or her belief”.

During the same period, an accused would be not guilty of manslaughter if he or she carried out the conduct that would otherwise constitute manslaughter “while believing the conduct to be necessary to defend himself or herself or another person or to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person and he or she had reasonable grounds for that belief”.[28] Thus, like the common law test, both subjective and objective elements were applicable in the statutory test in respect of manslaughter (but, of course, there was no requirement that the requisite belief was as to the infliction of death or really serious injury).
[28]Crimes Act 1958 (Vic), s 9AE (now repealed).

Then, from 1 November 2014, by operation of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic), a new Part IC was inserted into the Crimes Act 1958 (Vic) (“the Crimes Act”). As a result, self-defence at common law was abolished[29] and, in its stead, a new statutory version of self-defence was enacted.[30] This statutory form of self-defence is applicable to any offence allegedly committed since the commencement date, whether against any enactment or at common law.[31] It therefore applies to Mr Frank’s case.
[29]Crimes Act 1958 (Vic), s 322N.
[30]Crimes Act 1958 (Vic), s 322K.
[31]Crimes Act 1958 (Vic), s 322G.

This form of self-defence is set out in s 322K of the Crimes Act, which provides as follows:

Self-defence
(1)A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
(2)A person carries out conduct in self-defence if—
(a)the person believes that the conduct is necessary in self-defence; and
(b)the conduct is a reasonable response in the circumstances as the person perceives them.

(3)This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.

Notes
1See section 322M as to belief in circumstances where family violence is alleged.
2 The circumstances in which a person may carry out conduct in self-defence include—
·the defence of the person or another person;
·the prevention or termination of the unlawful deprivation of the liberty of the person or another person;
·the protection of property.

Thus, given the terms of s 322K(3), in a case of murder, such as the present, it is as if s 322K(2)(a) reads that “[the accused] believes that the conduct is necessary to defend [himself] from the infliction of death or really serious injury”; and paragraph (b) remains in the same terms.

While this does not represent a return to the common law defence, it can be seen that this statutory version of self-defence incorporates:

(a) the accused’s subjective belief (and maintains the belief as to the infliction of death or really serious injury, as per s 322K(3));

(b) a notion of objectivity when measuring whether the response was a “reasonable response”; and

(c) a further element of subjectivity by asking whether it was a reasonable response “in the circumstances as the accused perceives them”.

Further, s 322I(1) of the Crimes Act provides that the accused has the evidential onus of raising self-defence by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence. Section 322I(2) provides that, if the accused satisfies that evidential onus, the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence.

As I understood the parties’ submissions, there was no dispute in this case that Mr Frank had satisfied the evidential onus with respect to self-defence to murder (and manslaughter) by pointing to evidence, in the prosecution case, that suggested a reasonable possibility of the existence of facts that, if they existed, would establish self-defence to murder (and manslaughter). Instead, the question on the no-case submission (or, at least, one way of stating the question) was whether the evidence, taken at its highest for the prosecution, was capable of proving beyond reasonable doubt that Mr Frank did not carry out the conduct in self-defence.

Additionally, I should note that there was no dispute that, if the relevant question was answered against the prosecution with respect to self-defence as it applies to murder, it necessarily followed that the same answer must apply with respect to self-defence vis-à-vis manslaughter. There are two reasons. First, the same actus reus was relied on for both murder and manslaughter. Second, as can be seen from the terms of s 322K(2)(a) compared with those of s 322K(3), the threshold for excluding self-defence for manslaughter is even higher than it is for self-defence for murder. The latter is so because the two tests for self-defence are identical but for the inclusion, in murder, of the requirement of a belief by the accused that the conduct is necessary to defend himself or herself “from the infliction of death or really serious injury”. Put around the other way, if the accused holds the subjective belief required for self-defence to murder, he or she necessarily holds the subjective belief required for self-defence to manslaughter. In other words, the greater necessarily includes the lesser.

Principles applicable to submissions of “no case to answer”

I turn now to the principles relevant to a submission of no case to answer.

As Kaye JA remarked in DPP v Illiopoulos & Ors (Ruling No 3), those principles are well established and not controversial:[32]

[7] … The test … is not whether the accused should be convicted. Rather, the test is whether, on the evidence, the jury could lawfully convict him.[33] In particular, the test is not whether a verdict of guilty would be unsafe and unsatisfactory, and thus be liable to be set aside on appeal. Even if the prosecution case is weak, it must be left to the jury, unless on the evidence the accused man could not be lawfully convicted.[34]

[32]DPP v Illiopoulos & Ors (Ruling No 3) [2016] VSC 132 at [7].

[33]Kaye JA cited May v O’Sullivan (1955) 92 CLR 654 at 658 (per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ).

[34]Kaye JA cited Doney v The Queen (1990) 171 CLR 207 at 215 (per Deane, Dawson, Toohey, Gaudron and McHugh JJ); and Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 417 (per Young CJ and Anderson and Gobbo JJ).

The last sentence includes a reference to the most recent and authoritative statement of the applicable principles by the High Court, in Doney v The Queen, where the following was said in the plurality judgment of Deane, Dawson, Toohey, Gaudron and McHugh JJ:[35]

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

[35]Doney v The Queen (1990) 171 CLR 207 at 214-215.

While the foregoing test is apt in prosecution cases based on direct evidence, it is less helpful in cases based wholly or in part on circumstantial evidence and inferences. The present is such a case.

I should add that the plurality in Doney did say the following earlier in their judgment:[36]

Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded.

[36]Doney v The Queen (1990) 171 CLR 207 at 211.

But, in my view, that short passage alone does not provide a complete explanation of how the no-case test is to be applied in a case based wholly or partly on circumstantial evidence and inferences. Indeed, it might be said that, in such a case, the no-case test and the unsafe and unsatisfactory verdict test[37] almost converge and that the remaining differences between them are not always so obvious. To that extent, there may be, perhaps, some controversy. That said, as we shall see, intermediate appellate courts, both before and since Doney, have sought to outline the contours of the no-case test in such cases.
[37]See, for example, M v The Queen (1994) 181 CLR 487 at 493-494 (per Mason CJ, Deane, Dawson and Toohey JJ).

For example, seven years before Doney, when sitting in the Full Court of this Court in Attorney-General’s Reference (No 1 of 1983), Young CJ and Anderson and Gobbo JJ (in a joint judgment) said this in the course of considering the applicable principles in no-case submissions in circumstantial cases:[38]

The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury’s, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J explained in Plomp’s Case,[39] in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.

[38]Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416.

[39]Plomp v The Queen (1963) 110 CLR 234.

Eight years after Doney, sitting in Court of Appeal in R v Cengiz, Ormiston JA sought to address the applicable test in a case based on circumstantial evidence in this way:[40]

If it can be shown that it is open to the jury to hold that all other hypotheses should excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as was said later in Doney, “... the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters”.

[40]R v Cengiz [1998] 3 VR 720 at 721.

In the same case, Harper AJA put the test in this way:[41]

It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.

[41]R v Cengiz [1998] 3 VR 720 at 735.

A few years earlier, but still post-Doney, King CJ, sitting in the Court of Criminal Appeal of South Australia in Case Stated by Director of Public Prosecutions (No 2 of 1993), said this of the trial judge’s role on a no-case submission in a circumstantial case:[42]

[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.

[42]Case Stated by Director of Public Prosecutions (No 2 of 1993) (1993) 70 A Crim R 323 at 326-327 (citations omitted; italics in original). Justice Mohr wrote a separate judgment, agreeing in the result, but without any mention of acceptance of King CJ’s restatement of the principles. Justice Bollen agreed with King CJ and Mohr J.

After a review of the authorities, including Doney, King CJ went on to “re-state the principles, in summary form, as follows”:[43]

If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

[43]Case Stated by Director of Public Prosecutions (No 2 of 1993) (1993) 70 A Crim R 323 at 327 (italics in original; my underlining).

I now return to where I began this survey of the law: with Kaye JA. For, in Illiopoulos, his Honour went on to say this when stating the applicable test in the context of the prosecution case at hand, which was circumstantial in nature and required the drawing of inferences:[44]

Further, in my view, no rational jury could exclude the reasonable possibility that that account amounted to the required belief for the need to act in self‑defence and that that conduct was a reasonable response in the circumstances as perceived by Mr Frank. Neither the disparity in the injuries suffered by Mr Frank and Mr Bury, nor the nature of the fatal wound itself, nor anything else in the prosecution case, either alone or in combination, comes even close to being capable of disproving either limb of self‑defence.

Given the undisputed evidence of the lead-up to the struggle in the driveway, including Mr Bury’s behaviour with both the steel bar and the knives, it is wholly artificial to submit that, because the last blow landed by Mr Bury was with the steel bar and not a knife, a jury would be entitled to conclude that Mr Frank’s use of the knife to stab him in the abdomen was a disproportionate response. Plainly, a steel bar could kill or cause really serious injury if it struck Mr Frank in the head when delivered with the irrational ferocity Mr Bury had demonstrated thus far. Further, it must be remembered that the evidence is that, when he wielded the steel bar, Mr Bury had the knives in his other hand; and that, when he lost the steel bar, Mr Bury still had at least one of the knives in his hand.

If there were any doubt about this conclusion when assessing the struggle with the knife in isolation, it becomes inevitable when regard is had to the undisputed evidence of the grossly violent attacks on Mr Frank by Mr Bury in the immediate lead‑up to that period of struggle. Mr Bury had shown not the slightest inclination of calming down and desisting. On the contrary, he maintained his grossly violent behaviour throughout the whole incident. Further, and more importantly, no rational jury could reject, on the criminal standard of proof, that Mr Frank, in the circumstances that he had faced to that point, and in the agony of the moment, believed that turning the knife against Mr Bury and stabbing him to the stomach was necessary to defend himself from being stabbed and thereby killed, or at least really seriously injured, or that such conduct was a reasonable response in the circumstances as Mr Frank perceived them.

It might be said that the occasion for self-defence was at its most compelling immediately after Mr Bury had struck Mr Frank with the steel bar through the car window, and that it became less compelling as the struggle continued thereafter. Two points may be made. First, since Mr Hayward (correctly) conceded that self-defence must be excluded throughout the entirety of the confrontation in the driveway, it makes no difference if the occasion for self-defence became less compelling later in the struggle. Secondly, and in any event, on the evidence, no rational jury could exclude self-defence at any point during the struggle. Indeed, even if the fatal stabbing occurred towards the very end of the episode, that it was done in self-defence still could not be excluded by a rational jury. This is because there can be no rational dispute that, on the evidence, Mr Bury continued his extremely violent behaviour, and Mr Frank believed him to be continuing that behaviour, up and until he turned the knife against him. In those circumstances, the mere fact that the occasion for self-defence may have been even more compelling earlier in the struggle is not to the point.

Thus, whichever way the matter is reasoned, on the evidence at its highest for the prosecution and given the way that the case has been put, I accept that Mr Frank could not lawfully be convicted of either offence because the inference that he acted in self‑defence at any point during the confrontation in the driveway, and therefore when, on the prosecution case, the fatal wound was inflicted, could not rationally be excluded by a jury.

Conclusion

It is for these reasons that I upheld the submission that there was no case to answer on either murder or manslaughter.

Ruling 2: No power to direct entry of not guilty of manslaughter on record

Introduction

As I indicated earlier, on 20 January, after announcing my ruling and giving ex tempore reasons for it, I then brought the jury in, explained what I was about to do, and why. Subsequently, pursuant to s 241(2)(b) of the CPA, I discharged the jury without verdict and directed that a verdict of not guilty of murder be entered on the record.

I turn now to the question whether s 241(2)(b) also authorised a like direction with respect to manslaughter.

I received oral submissions immediately following my direction with respect to murder, and then adjourned the matter so that counsel could prepare written submissions on the point, which I have now received.

Background

Manslaughter was not charged separately on the indictment but would have been left to the jury, pursuant to s 421(1)(a) of the Crimes Act, had there been a case to answer. This is because, the issue of self-defence aside, there was a viable case of manslaughter.

Further, in my preliminary directions before the prosecution opening address, I gave the jury written and oral directions on the elements of both murder and manslaughter, directed that manslaughter was an alternative verdict and explained how that alternative might arise.

While the success of the no-case submission intervened, I cannot imagine that, had the matter been raised prior to the final addresses, I would have been persuaded by either party, pursuant to Part 3 of the Jury Directions Act 2015 (Vic), to decline to leave manslaughter to the jury.

Section 421(1) of the Crimes Act

Section 421(1) of the Crimes Act is in the following terms:

Alternative verdicts on charge of murder
(1)On an indictment for murder a person found not guilty of murder may be found guilty of—
(a)manslaughter;
(ab)child homicide;
(ac)homicide by firearm;
(b)any offence of which he may be found guilty under an enactment specifically so providing;
(c)an offence against section 325; or
(d)an attempt to commit murder or an attempt to commit any offence of which he may by virtue of this subsection be found guilty—

but may not be found guilty of any other offence.

Section 241 of the CPA

Section 241 of the CPA is in the following terms:[57]
[57]My emphasis.

When judge may enter finding of guilty or not guilty
(1)If, during trial, an accused is re-arraigned and pleads guilty to a charge on the indictment, the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of guilty be made on the record in respect of that charge.
(2)If—
(a)during trial the prosecution informs the trial judge that the prosecution proposes not to lead evidence on a charge on the indictment; or
(b)at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment—

the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge.
(3)An entry of guilty under subsection (1) or an entry of not guilty under subsection (2) has the same effect as if it were the verdict of a jury on the trial of the accused on that charge.

Director’s submissions

Mr Hayward submits that, in this case, s 241(2)(b) does not authorise the Court to direct that an entry of not guilty be made on the record in respect of manslaughter.

In his submission, the plain reading of s 241(2)(b) makes clear that only “a charge on the indictment” can be subject to that type of direction. In this case, however, manslaughter was not “a charge on the indictment” within the meaning of the provision. Instead, it was simply an alternative available under s 421(1)(a) of the Crimes Act.

Mr Hayward submitted that the alternative proposition — namely, that a court may consider alternatives to the charge and direct the recording of not guilty to those alternatives — would require a judge, in effect, to supplant a jury’s role, make an assessment of what the necessary effect of the proper order is and apply that to what may or may not be a verdict or verdicts properly open on the alternative charge or charges. That, in his submission, would leave s 241(3) with no work to do.

Mr Hayward also submitted that it might produce absurd results as well. For example, if an accused were indicted on just one charge of causing serious injury intentionally (“ICSI”),[58] where the sole issue was whether the injury was a “serious injury” or not, the accused might plead not guilty to that charge but wish to resolve the matter to a charge of causing injury intentionally (“ICI”).[59] If the trial judge directed that an entry of not guilty be made on the record in respect of ICSI, on the sole basis that there was no case to answer that the injury was a “serious injury”, in Mr Hayward’s submission, it would not be for the judge then to contemplate whether the accused could or should be found guilty of ICI, and make his or her own assessment as to whether that charge (or any other potential offence, whether charged or not) should be subject to a direction that, in effect, the accused is not guilty of such a charge.
[58]Contrary to s 16 of the Crimes Act 1958 (Vic).
[59]Contrary to s 18 of the Crimes Act 1958 (Vic).

In Mr Hayward’s submission, s 241 does not allow a court to embark on some sort of analysis of (a) the effect of the entry of a not guilty verdict in relation to what may be any number of alternative charges and (b) then essentially decide whether or not such charges may be proven and (c) then direct entries of not guilty on the record for charges which may not even have been laid. Such a reading, in his submission, would be to the effect that the judge would be granted power to “find” the accused not guilty of any myriad of potential alternative charges, which is not the judge’s role.

Mr Hayward referred to Wilson v The Queen, where the Court of Appeal said this:[60]

Section 241 was obviously introduced to overcome the common law requirement that an accused, once in the charge of the jury, had to be dealt with by the jury in order to ‘clear the presentment’. His or her willingness to plead guilty part-way through the trial could not overcome that requirement. …

[60]Wilson v The Queen [2015] VSCA 211 at [74] (per Weinberg and Kyrou JJA and Croucher AJA).

That is to say, submitted Mr Hayward, s 241 enables only a procedure to ensure that a charge on an indictment is cleared — where there is no case to answer on that charge — without requiring a directed verdict of acquittal by a jury. It does not empower a judge to do anything more than that.

Mr Hayward submitted that, in this case, it is clear to the prosecution that the effect of the direction to record a finding of not guilty to the charge of murder (on the basis that Mr Frank had no case to answer on the element concerning proof of the absence of self-defence) necessarily means Mr Frank could not be found guilty of manslaughter either.

In those circumstances, the submission concluded, the Court should do no more than has already been done — namely, direct that an entry of not guilty of murder be made on the record in respect of that charge.

Defence submissions

Mr Gibson maintained the submission that I should direct that an entry of not guilty of manslaughter be made on the record as well.

He conceded that the ruling of no case to answer on manslaughter gives Mr Frank practical finality to the proceedings because my ruling in relation to self-defence encompasses both murder and manslaughter. He also conceded that Mr Frank almost certainly would get the benefit of a permanent stay in relation to any subsequent attempt to lay and prosecute a charge of manslaughter. In his submission, the principles of double jeopardy and s 26 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) would have application (although he noted that s 26 is couched in terms of “an offence”).

In his submission, however, it is not certain that Mr Frank would get the benefit of a plea of autrefois acquit. Section 220(2) of the CPA provides that, in “a plea of previous acquittal, it is sufficient for an accused to state that the accused has been lawfully acquitted of the offence charged in the indictment”.[61] Section 220(3) also provides that the rules of common law with respect to autrefois convict and autrefois acquit continue in force in respect of pleas of previous conviction and previous acquittal. In Mr Gibson’s submission, therefore, technically, there is no legal barrier to Mr Frank being charged with manslaughter.
[61]My emphasis.

Mr Gibson observed that an acquittal obviously gives an accused the benefit of legal finality to the proceedings, whether directed or otherwise. In his submission, a judge’s power to direct that an entry of not guilty be entered on the record pursuant to s 241(2)(b) is clearly intended to replace the procedure of the directed acquittal.

He further submitted that, given that, prior to the introduction of s 241, a no-case ruling which encompassed both murder and manslaughter would have resulted in the jury being directed to return verdicts of not guilty in respect of both alleged offences, verdicts of not guilty should be entered on the record in relation to both forms of homicide in the present case because:

(a) the purpose of s 241(2) is to give the accused the benefit of legal finality to the proceedings (as distinct from merely practical finality); and

(b) without this additional entry on the record concerning manslaughter, Mr Frank would not get the benefit of that verdict as required by s 241(3).

As I understood Mr Gibson, he accepted that the foregoing submissions amounted to a reading of s 241(2)(b) that was difficult to reconcile with the use of the words “a charge on the indictment”, “the charge” and “that charge”. But, despite that difficulty, his ultimate submission was that the provision should be read in a way that accommodates the giving of the direction that an entry of not guilty be made on the record in respect of manslaughter in addition to murder in this case and in other cases like it.

In the alternative, he suggested that the “unfortunate wording” of the provision should be considered by the legislature.

Consideration

As I indicated at the commencement of these reasons, having reflected on the matter, I have come to the view, albeit with some hesitation, that, in the present case, manslaughter is not “a charge on the indictment” within the meaning of s 241(2)(b) of the CPA. Accordingly, that provision does not authorise the giving of a direction that an entry of not guilty be made on the record in respect of manslaughter.

In short, I take that view because, as much as I think it would be preferable to reach the opposite conclusion, and despite (some of) the arguments to the contrary to which I am about to refer, I simply cannot shoehorn the availability of an alternative verdict of guilty of manslaughter pursuant to s 421(1)(a) of the Crimes Act into the words “a charge on the indictment”, “the charge” and “that charge” as employed in ss 241(2)(b) and (3) of the CPA. Put another way, in my view, to adopt the submission of Mr Gibson would be effectively to rewrite s 241 in a way that the plain language of the provision cannot sustain.

That said, I think it is important to set out at least some of the arguments in favour of an alternative and broader reading of s 241(2)(b). These factors persuade me that the narrow scope of the provision, as I have construed it, may well be a function of legislative oversight. Alternatively, these same factors suggest to me that the legislature might consider an amendment to s 241 so as to allow for the direction sought by Mr Gibson in like cases in the future.

First, in my view, Mr Gibson has understated Mr Frank’s position by proceeding on the assumption that it is only prior to the introduction of s 241 that, in a case like the present, this Court had the power to direct a jury to return verdicts of not guilty of both murder and manslaughter. On the contrary, I can detect nothing in the words of s 241, in the CPA more generally or in the extrinsic materials to the CPA that ousts the ability of a judge to direct a jury to return a verdict or verdicts of not guilty on the basis that there is no case to answer. There are several points to be made:

(a) First, the CPA is not, and does not purport to be, a complete code on criminal procedure.

(b) Secondly, indeed, while s 1(a) of the CPA provides that one of the purposes of the Act is “to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates’ Court, the County Court and the Supreme Court”, there is no express provision ousting the common law.

(c) Thirdly, on the contrary, s 213(2) of the CPA provides that “[n]othing in this Act removes or limits any powers of a trial judge that existed immediately before the commencement of this Act”.

(d) Fourthly, nothing in s 226(1)(a) — which provides that, “[a]fter the close of the case for the prosecution, an accused is entitled … to make a submission that there is no case for the accused to answer” — suggests that a judge may not direct a jury to acquit in consequence of the acceptance of such a submission.

(e) Fifthly, nothing in s 241 suggests that that power has been removed either. Instead, s 241(2)(b) merely gives the judge the power to “discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge”.

(f) Finally, in a case like the present, it was never thought that there was any bar to directing a jury to acquit of both murder and manslaughter where, despite the fact that manslaughter was not charged on the indictment, it was plain that, but for the acceptance of the no-case submission, manslaughter would have to be left to the jury as an alternative verdict under s 421(1)(a) of the Crimes Act.

I note also that Professor Richard Fox, in his text on Victorian Criminal Procedure: State & Federal Law, explains the power to direct a jury to acquit and the power to direct the entry of a verdict under s 241 as if they are alternative choices available to a judge:[62]

If the trial judge accepts the no case submission, the jury will be directed that there is no evidence upon which they could lawfully convict and that they should bring in a verdict of not guilty. The jury may, theoretically, refuse to accept the judge’s direction to acquit and, if so, the trial must proceed. However, under [ss 241(2) and (3) of the CPA], the trial judge may choose to discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge. That has the same legal effect as if it were the verdict of the jury on the trial of the accused on that charge. …

[62]Emeritus Professor Richard Fox and Nadia Deltondo, Victorian Criminal Procedure: State & Federal Law, 2019, The Federation Press, at [8.8.12.2].

Thus, I am satisfied that, where a judge has ruled that there is no case to answer on both murder and manslaughter, there is still a power to direct a jury to return a verdict of not guilty on both offences even where manslaughter is not charged separately on the indictment.[63] Yet, if that is correct, it might be thought to be wholly incongruous that s 241(2)(b) of the CPA would give a judge the power to give a direction to record the entry of a verdict of not guilty of murder, but not give the same power to give a like direction with respect to manslaughter.
[63]Of course, while I might have done exactly that on 20 January, I have no power now to direct the jury to acquit as they have been discharged long ago and have gone their separate ways. Perhaps I should have taken that course. In the unlikely event that the jury declined to do as they were directed, I still could have discharged them and then directed, pursuant to s 241(2)(b), the entry on the record of a verdict of not guilty of murder, as I did. In that way, Mr Frank at least would have had a chance of the jury accepting a directed acquittal on manslaughter.

Secondly, this seems to be all the more compelling a point when regard is had to the apparent purposes behind the introduction of s 241 as described in the explanatory memorandum to the Criminal Procedure Bill 2008 (Vic) which ultimately became the CPA. In particular, it was said that clause 241 of the Bill:[64]
[64]Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic), pp 87-88.

allows the trial judge to enter findings of guilty and not guilty without the jury giving a verdict when either the accused pleads guilty during the trial, the judge accepts a submission at the close of the prosecution case that there is no case for the accused to answer, or the prosecution decides not to lead evidence on a charge. At any time other than during a trial, a judge may accept a plea of guilty or find the accused not guilty where the prosecution does not lead evidence on a charge.
There is currently no legal mechanism for a judge to determine charges in the above situations and instead, the jury is required to give a verdict, even if that verdict is inevitable because the jury is still “in charge” (see, for example, R v Paprounas [1970] VR 865).
The process of requiring such verdicts can be unwieldy and confusing for jurors. It can require jurors to be balloted off and then returned to continue the trial in relation to other charges or other accused, under section 48 of the Juries Act 2000.
This clause provides a new process in which a trial judge can discharge the jury from delivering a verdict and direct that an entry of “guilty” or “not guilty” be made on the record in any of the following situations—
·The accused pleads guilty to a charge on re-arraignment during trial; or
·The trial judge decides at the end of the prosecution case that there is no case for the accused to answer; or
·The trial judge is advised by the prosecution that the prosecution proposes not to lead evidence on a charge.

Such an entry has the same effect as if the jury had delivered a verdict on the charge.

Several points may be made:

(a) First, there is nothing in the foregoing remarks that suggests an intention to do away with the power to direct a jury to return verdicts of not guilty where there is no case to answer.

(b) Secondly, the language employed in the explanatory memorandum does not suggest that the offence must be charged on the indictment before it may be the subject of the procedures in s 241.

(c) Thirdly, while the requirement that jurors be balloted off where there are more than twelve at the relevant time would remain, the difficulty of returning such jurors to the jury to continue the trial in a case like the present (i.e. one in which no other charges were left to consider) simply would not arise, because the jury’s discharge and the directed recording of verdicts would mean the end of the jury’s role in the trial process in any event.

(d) Finally, however, that the return of the balloted-off juror or jurors would remain where there were other charges on the indictment against a single accused in which there is a case to answer, or where co-accused likewise have remaining charges to be determined by the jury, only reinforces the view that s 241(2)(b) might be read in a way that allows a judge the widest possible power to discharge the jury from delivering a verdict in respect of a necessarily included ‘charge’ like manslaughter and to direct that an entry of not guilty be made on the record in respect of that ‘charge’.

Thirdly, contrary to Mr Hayward’s submission, to construe the provision in the way urged by Mr Gibson would not amount to a supplanting of the jury’s role. The procedure in s 241(2)(b) would be employed only where the alternative ‘charge’ was otherwise viable and in issue and yet in respect of which there has been a determination that the accused has no case to answer.

Fourthly, and similarly, in my opinion, Mr Hayward’s example about ICSI and ICI was not to the point. If the judge considered that the justice of the case meant that the lesser offence of ICI should be left to the jury as an alternative verdict, then that could be done, for the success of the no-case submission on ICSI — on the basis that there was no evidence of serious injury — would be no bar, in and of itself, to the leaving of ICI to the jury. Equally, pursuant to s 240 of the CPA, the judge might rule that, despite s 239, the interests of justice require that the accused’s guilt in respect of the lesser offence of ICI is not to be determined at the trial at hand. Thus, each case would turn on its own particular facts, and properly so.

Fifthly, while it is true that, in the circumstances of this case, Mr Frank would have an unlosable argument for a permanent stay, as an abuse of process, of any attempt to prosecute manslaughter, that outcome does not have the same legal certainty as a plea of autrefois acquit resulting from a direction under s 241(2)(b). Put another way, while Mr Hayward’s concession on behalf of the Director is no doubt comforting to Mr Frank, as I expect is my view that it would be the plainest example of an abuse of process to charge and attempt to prosecute him with manslaughter, I can understand that he would prefer the legal certainty of a direction that a verdict of not guilty of manslaughter be entered on the record.

Finally, as Mr Gibson argued, since s 241(3) speaks of “an entry of not guilty under [s 241(2) as having] the same effect as if it were the verdict of a jury on the trial of the accused on that charge”, there is at least an argument that a failure to give such a direction with respect to manslaughter in this case is to deny Mr Frank the benefit of what would have been the verdict of a jury had the more cumbersome procedure (of directing a jury to acquit) been employed. In that sense, to deny him a direction in respect of manslaughter under s 241(2)(b) is also a failure to accord with s 241(3).

As I say, despite these points, and despite my suspicion that the failure to draft s 241 in a way that clearly bestows the power to give the necessary direction in appropriate cases in which alternative ‘charges’ arise by reason of s 421(1) of the Crimes Act (or, for that matter, s 239 of the CPA), but in respect of which there is no case to answer, is merely a legislative oversight, I do not think that I am authorised to read s 241 in the way urged by Mr Gibson.

Conclusion

Accordingly, I must refuse Mr Gibson’s application, on behalf of Mr Frank, to give a direction with respect to manslaughter under s 241(2)(b) of the CPA.

Possible amendment of s 241

Instead, it will be a matter for the legislature, if it wishes to do so, to consider whether amendments might be made to s 241(2)(b) to allow a direction of this kind in appropriate cases.

Further, any possible amendment of s 241 would require consideration of matters beyond those discussed in this case. For example, thought would need to be given to whether s 241(1), which concerns a change of plea during a trial, also should be amended to include pleas of guilty to unindicted alternatives available under s 421(1) of the Crimes Act and s 239 of the CPA.

Again, consider a trial in which only murder is charged on the indictment but manslaughter is in issue in the alternative. Suppose that, upon arraignment before the jury, the accused pleads not guilty to murder. And suppose that, during the trial, the accused indicates that he wishes to plead guilty to manslaughter (but maintains his plea of not guilty to murder) and that the Director determines to accept that combination of pleas. If, however, manslaughter is not considered to be “a charge on the indictment”, the usual course to achieve that result is that the jury would have to be discharged and a new indictment charging manslaughter would have to be filed. While I expect that most accused would honour the agreement, there would always be a nervous period until the accused pleaded guilty upon arraignment on the new indictment. If, however, the accused reneged (by pleading not guilty or by refusing to plead), and the Director (understandably) determined to revive the murder charge, yet another indictment would have to be filed and, far more importantly, a fresh jury would have to be empanelled. That, of course, would be a complete fiasco.

In my view, it would be far better if s 241(1) were amended in such a way as to allow the accused, during the original trial, to be re-arraigned and to plead not guilty to murder but guilty to manslaughter, and to allow the judge to enter those verdicts on the record and then discharge the jury without verdict. This procedure would have the advantage of certainty. If the accused reneged upon arraignment (which process should occur in the absence of the jury), the trial simply could be resumed before the same jury. Easy-peasy.

There are, of course, other situations in which it would be preferable to have the flexibility to allow the judge to direct that a verdict of guilty or not guilty be entered on the record while the trial continued (especially where there are more than twelve jurors), whether it be on other charges against a single accused or those against co-accused.

All of these matters, and more, would need to be considered to ensure that an amended s 241 was internally consistent and that it fitted in seamlessly with the balance of the CPA.

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[2021] VSC 7

5 March 2021