R v McLachlan - [2000] VSC 522

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1470 of 1997

THE QUEEN

JOHN McLACHLAN

---

JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	27 NOVEMBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 522

---

CATCHWORDS: Self-defence and Provocation – Whether issues should be left for jury consideration - Self-defence – Zecevic v. DPP (Victoria) (1987) 162 CLR 645; R. v. Roba (No. 2) (2000) A.Crim.R. 253 – Provocation – Masciantonio v. R. (1995) 183 CLR 58; R. v. Tuncay (1998) 2 VR 19 – Neither issue to be left to the jury – Corroboration – Principles to be applied – Matters capable f constituting.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. N. Parkinson	Office of Public Prosecutions
For the Accused	Ms. J. Morrish QC	Gerard Bryant & Associates

HIS HONOUR:

At the conclusion of the Crown case, the questions of whether self-defence and provocation should be left for the consideration of this jury have arisen for determination. These matters were argued upon the understanding that the accused would not be called to give evidence.

Turning first to the question of self-defence, it was argued by the Crown that no evidential basis existed for the matter to be left to the jury. It is necessary therefore to examine the evidence upon which the defence rely in urging the contrary view. Before doing so, I should refer briefly to the relevant principles. I endeavour to set these out in a ruling reported as R v. Roba (No. 2) 2000 110 A.Crim.R. 253. After referring to the leading case of Zecevic v. DPP(Victoria) (1987) 162C.L.R. 645 and, in particular, the joint judgment of Wilson, Dawson and Toohey, JJ. I remarked (at p.254):

"It is perhaps worth noting as a starting point two statements in that judgment. First:
'Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect to self-defence must not rest on the accused. Since Woolmington v. DPP [1935] A.C. 462 it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused: [case cited]'."

In this case, of course, the plea is squarely raised by the accused by way of submission from his counsel.

"Secondly, in a passage at 665 their Honours, before considering the facts in that case, remarked:
'Moreover the appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence. As Gibbs, J. observed in Muratovic [1967] Qd. R. 15: "... the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge, to decide…

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 McLachlan

Details

AGLC: R v McLachlan [2000] VSC 522
Case: [2000] VSC 522
Decision Date: 27 November 2000

CaseChat Overview and Summary

The case of R v McLachlan involved the respondent, McLachlan, who was charged with the murder of his partner, to whom he had been engaged. The dispute centered on whether the trial judge had erred in not leaving the defences of self-defence and provocation to the jury's consideration. The case was heard in the Victorian Court of Appeal. McLachlan argued that the trial judge should have allowed the jury to consider the defences of self-defence and provocation in determining his culpability for the murder charge.

The court needed to determine whether the trial judge had correctly assessed the evidence and ruled that the defences of self-defence and provocation were not available to McLachlan. The primary legal issues revolved around the proper application of the principles established in Zecevic v DPP (Victoria) and R v Roba (No. 2) concerning self-defence, and Masciantonio v R and R v Tuncay regarding provocation. The court was required to examine whether the trial judge had erred in excluding these defences from the jury's consideration.

The Court of Appeal held that the trial judge was correct in not leaving the issues of self-defence and provocation to the jury. The court found that the evidence did not support the availability of these defences. It was determined that McLachlan had acted in a premeditated and deliberate manner, which precluded the application of self-defence. Similarly, the court found that the circumstances did not amount to sufficient provocation to reduce the charge from murder to manslaughter. The court also addressed the issue of corroboration, stating that the principles to be applied in assessing whether the evidence was capable of constituting corroboration had been correctly applied by the trial judge.

The court dismissed McLachlan's appeal and upheld the conviction for murder. The Court of Appeal confirmed the trial judge's decision that neither self-defence nor provocation were available defences in this case. The appeal was thus dismissed, and the conviction for murder was upheld.

Orders