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R v Hendy

R v Hendy

Case [2008] VSCA 231 24 November 2008

Appeal

Self-Defence

Recklessly Causing Serious Injury

Manifest Excess

Criminal Law

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COURT OF VICTORIA

COURT OF APPEAL

No 264 of 2007

THE QUEEN

BENJAMIN

HENDY

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JUDGES:	MAXWELL P, ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 June 2008
DATE OF JUDGMENT:	24 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 231

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CRIMINAL LAW – Appeal – Conviction – Self-defence – Jury direction - Whether accused honestly believed in necessity of his response – Whether belief based on reasonable grounds – Whether direction invited jury to assess reasonableness of accused’s conduct – Whether model charge in Victorian Criminal Charge Book invites consideration of reasonableness of accused’s conduct – Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 , R v Portelli (2004) 10 VR 259 applied.

CRIMINAL LAW – Appeal – Conviction – Whether verdict unsafe and unsatisfactory – Whether open to jury to be satisfied beyond reasonable doubt accused lacked reasonable grounds for belief in necessity – M v The Queen (1994) 181 CLR 487 – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Reckless stabbing with knife in response to perceived threat – Manifest excess – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S Gillespie-Jones	Paul Vale Criminal Law
For the Respondent	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
MAXWELL P:

1	Lorraine Hendy is a school crossing supervisor. On 3 January 2005, she was at home, babysitting her grandson, Benjamin (known also as ‘BJ’). Her son, Benjamin, the applicant in this proceeding and the father of BJ, was also in the house.

At about 7.15 pm, Mrs Hendy heard a hard bang on the window. When she opened the door, she saw Timothy Browning standing there. Browning had never visited the house before but was known to the applicant. He was holding a can of beer and a rose, which he gave to Mrs Hendy. Mrs Hendy thought Browning was drunk. He was slurring his words and was unsteady on his feet. In evidence at the trial, Browning admitted that he had been drinking all afternoon. As a result, he had very limited recollection of what occurred after his arrival at the Hendy home.
According to Mrs Hendy, Browning opened the wire door and pushed past her. He said he had come to see BJ, her grandson. When she asked again, he said he had come to see the applicant. He looked angry. Mrs Hendy followed Browning to the kitchen, where he said to the applicant: ‘I am sick of this shit. What’s going on?’, to which the applicant replied: ‘I don’t know what’s going on.’ At this point Mrs Hendy telephoned her husband, who then spoke both to Browning and the applicant. Mrs Hendy also telephoned Rachelle Wilson, Browning’s fiancée. (Wilson was the former girlfriend of the applicant and the mother of BJ.)
Browning threatened the applicant in the kitchen and then they went out to get on to the verandah. Browning said to the applicant:…

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 Hendy

Details

AGLC: R v Hendy [2008] VSCA 231
Case: [2008] VSCA 231
Decision Date: 24 November 2008

CaseChat Overview and Summary

In this appeal, the respondent, Hendy, sought to challenge both his conviction and sentence following an incident in which he stabbed another individual. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary issue before the court was whether the trial judge's direction to the jury on the principles of self-defence was flawed, leading to an unsafe and unsatisfactory verdict. Specifically, the court needed to determine if the trial judge's direction correctly aligned with the model charge in the Victorian Criminal Charge Book and the principles established in Zecevic v Director of Public Prosecutions (Vic) and R v Portelli.

The court held that the trial judge's direction did not invite the jury to assess the reasonableness of the accused's conduct in self-defence, which was consistent with the requirements of the model charge. The court found that the trial judge correctly instructed the jury that the accused must honestly believe in the necessity of his response, and that such belief must be based on reasonable grounds. The jury was not asked to consider whether the accused's belief was reasonable but whether it was honestly held. This approach was consistent with the decision in Zecevic and upheld in R v Portelli.

Furthermore, the court considered whether the verdict was unsafe and unsatisfactory. The court found that the jury was adequately directed and that it was open to them to be satisfied beyond reasonable doubt that the accused lacked reasonable grounds for his belief in the necessity of his response. The decision in M v The Queen was cited to support this finding. In light of these considerations, the appeal against conviction was dismissed. Regarding the sentence, the court found that the trial judge had appropriately considered the manifest excess of the accused's actions and dismissed the appeal against sentence as well.

Orders