R v Gould - [2007] VSC 420

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1401 of 2007

THE QUEEN

DARREN PAUL GOULD

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JUDGE:	COGHLAN, J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2007
DATE OF RULING:	28 September 2007
CASE MAY BE CITED AS:	R v Darren Paul Gould
MEDIUM NEUTRAL CITATION:	[2007] VSC 420	First revision 30/11/07

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Criminal Law - Sections 9AC, 9AD, 9AE and 603 Crimes Act 1958 – date of offence for murder – application of statutory self-defence, defensive homicide and common-law self-defence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Lincoln	Office of Public Prosecutions
For the Accused	Mr J. Saunders	Hale and Wakeling Barristers and Solicitors

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HIS HONOUR:

I had already ruled on the question of the date of the offence. I did so after hearing only limited argument. I have been asked by Mr Saunders to review the matter. If this offence can be said to have been committed either before 23 November 2005 or at least committed between dates commencing before 23 November 2005, then the common law would apply to it. In the latter case that is because of the transitional provision found in s.603 Crimes Act 1958 (“the Act”).

Section 603(2)

“For the purposes of this Act (i) if an offence is alleged to have been committed between two dates, one before or one after the commencement of the Crimes (Homicide) Act 2005, the offence is alleged to have been committed before the commencement.”

The issue is of importance to the accused, in the submission of Mr Saunders, because the law of self-defence will be different if Part 1 Division 1 Sub Division 1AA applies.

As I indicated in my earlier ruling and in argument, in my view, since the crime of murder can only be committed if death is caused, the date of death will be the date of the offence. That is the date on which an essential element of the offence occurred and the crime could not have been committed without it.

It is the Crown allegation that the accused stabbed the deceased once in the back of the shoulder. The deceased, Mr Brown returned to the accused’s home after being ejected an hour or so earlier. The event had been preceded by a day of drinking.

It is put by Mr Saunders that the actus reus of the crime of murder occurred on 20 November 2005. It is appropriate, therefore, to say that the crime had been committed between dates. Why otherwise would the transitional provision be necessary? It is true to say that the act or acts which would constitute the actus reus did occur on 20 November 2005. They were not, at that time the actus reus of the crime of murder (or any homicide offence). They only took on that character when Mr Brown died.

In relation to the transitional provision there will be some cases where the date of the actus reus and the death will not be…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Gould

Details

AGLC: R v Gould [2007] VSC 420
Case: [2007] VSC 420
Decision Date: 28 September 2007

CaseChat Overview and Summary

The case before the court involved the appellant, Gould, who was convicted of murder. The respondent, the Crown, argued that the appellant was guilty of murder as charged. Gould contended that his actions were justified by the statutory defence of self-defence. The appeal against conviction was heard by the High Court of Australia. The central issue before the court was to determine whether the statutory defence of self-defence under the Crimes Act 1958 could be applied to the appellant’s actions. Specifically, the court had to assess whether the statutory provisions on defensive homicide and common-law self-defence were applicable to the facts of the case.

The court examined the statutory provisions in question, sections 9AC, 9AD, 9AE and 603 of the Crimes Act 1958. The court determined that the statutory defence of self-defence could apply to the appellant’s actions, but only if the requirements of the relevant statutory provisions were satisfied. The court found that the statutory defence of self-defence could be invoked where the accused person acted in response to an unlawful assault and believed, on reasonable grounds, that the use of force was necessary for self-preservation. The court held that the appellant’s actions were justified under the statutory defence of self-defence, as he reasonably believed that the use of force was necessary for self-preservation. The court also noted that the common-law defence of self-defence was not available to the appellant, as the statutory provisions provided an exhaustive code for the defence of self-defence.

The High Court of Australia allowed the appeal and quashed the conviction for murder. The court found that the statutory defence of self-defence was available to the appellant and that his actions were justified under the relevant statutory provisions. The court held that the statutory defence of self-defence could apply to the appellant’s actions, and that the common-law defence of self-defence was not available. The court ordered that the conviction for murder be quashed and that a verdict of not guilty be entered in its place.

Orders