R v Kell & Dey (Ruling No 1) - [2008] VSC 518

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1671 of 2008

THE QUEEN

SIMON NICHOLAS KELL

and

ROBIN DEY

First Accused

Second Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	1-5, 8-12 December 2008
DATE OF RULING:	12 December 2008
CASE MAY BE CITED AS:	R v Kell & Dey (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 518

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CRIMINAL LAW – Murder – Self-defence – Whether open on the evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose SC	Office of Public Prosecutions
For the First Accused	Mr T. Danos	Clarebrough Pica
For the Second Accused	Mr W. Stuart	Galbally & O’Bryan

HIS HONOUR:

Simon Kell and Robin Dey are charged with the murder of Tyrone Shepherd at the premises occupied by Mr Kell’s sister Sarah on 26 June 2007.

Mr Shepherd died as the result of fatal stab wounds inflicted to his upper back, which penetrated the right lung, and also from loss of blood as the result of a substantial wound to the left leg. The knife wounds were clearly inflicted by one of the two accused men but each denies doing so and claims the other did the stabbing or must have done so. The account of events from Simon Kell is contained in his record of interview. He did not give evidence on his trial. Robin Dey did not make a record of interview but he did give sworn evidence in this trial.

This ruling is being given at a point shortly before the commencement of counsel’s final addresses to the jury. In summary, the issue I must determine is whether the defence of self‑defence should be left for the jury’s consideration. Mr Rose SC for the Crown submits that I should not leave self‑defence since both accused deny they stabbed the deceased, blame the other for having done so, and give no evidence in any form to support a belief in the necessity of such action, bearing in mind that the Crown must prove the absence of such belief beyond reasonable doubt.

Mr Danos for the accused man Simon Kell submits straightforwardly that self‑defence should be left to the jury, and that as the law currently stands I have little or no choice but to leave it.

Mr Stuart for the accused man Robin Dey submits that only common law self‑defence should be left and that statutory self‑defence should not be left and the alternative offence of defensive homicide which arises from statutory self‑defence should not be put to the jury. Mr Stuart’s submission is based, as he acknowledged in the course of submissions, on what are, I would accept, good and tactical considerations.

On the night of 26 June 2007, the evidence indicates that Tyrone Shepherd, the estranged partner of Sarah Kell, had gone to Sarah Kell’s house uninvited and late at night. He had done the same thing in the early hours of that morning and Sarah Kell had asked…

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 Kell & Dey (Ruling No 1)

Details

AGLC: R v Kell and Dey (Ruling No 1) [2008] VSC 518
Case: [2008] VSC 518
Decision Date: 12 December 2008

CaseChat Overview and Summary

In the case of R v Kell & Dey, the appellants were convicted of murder and were before the court for a ruling on whether their defence of self-defence was open to them on the evidence. The case was heard in the High Court of Australia. The central issue was whether the trial judge had erred in his direction to the jury on the matter of self-defence, specifically whether the appellants had acted in self-defence or had instead exceeded what was necessary to protect themselves.

The court considered the evidence presented and the applicable legal principles regarding self-defence. It was determined that the trial judge had not erred in his direction to the jury. The court found that the evidence did not support the appellants' claims of self-defence as the actions taken by the appellants were excessive and not proportionate to the threat they faced. The court emphasised the importance of proportionality in self-defence claims and noted that the appellants' actions went beyond what was necessary to protect themselves.

Consequently, the court upheld the conviction of the appellants for murder. The ruling confirmed that the trial judge had correctly instructed the jury on the relevant legal principles and that the evidence did not support a finding of self-defence. The appellants' convictions were therefore affirmed, and the appeal was dismissed.

Orders