R v Pepper - [2007] VSC 234

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1570 of 2006

THE QUEEN	Prosecution
v
MICHAEL WALLACE PEPPER	Defence

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATES OF HEARING:	12, 18-22, 25-29 June 2007
DATE OF RULING:	25 June 2007
DATE OF REASONS:	29 June 2007
CASE MAY BE CITED AS:	R v Pepper
MEDIUM NEUTRAL CITATION:	[2007] VSC 234

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CRIMINAL LAW – Attempted Murder – Applicability of the Crimes (Homicide) Act 2005 – Alternative verdict of attempted defensive homicide.

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Crimes (Homicide) Act 2005 (Vic)
Crimes Act 1958 (Vic) ss321M, 321N

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms A. Forrester	Office of Public Prosecutions
For the Defendant	Mr W. Stuart	Tony Danos, Solicitor

HIS HONOUR:

By a presentment filed 30 January 2007 Michael Wallace Pepper was charged with an offence of attempted murder alleged to have occurred on 22 February 2006 and with a charge of causing serious injury intentionally. He pleaded not guilty to these offences and the trial began on Monday 18 June 2007. On Thursday 28 June 2007 the jury returned a verdict of not guilty on all counts.

Prior to the trial commencing a number of issues had been canvassed with counsel. One of the issues canvassed was the impact upon the charge of attempted murder of the Crimes (Homicide) Act 2005 (“the new Act”) which came into operation on 23 November 2005 and was accordingly in operation at the time of the alleged attempted murder.

When the issue was first raised counsel for both the prosecution and the defence submitted that the new Act had no relevant operation in relation to the charge of attempted murder. I expressed misgivings in relation to this position. As a consequence, counsel for the defence applied pursuant to s.446(2) of the Crimes Act 1958 (“the Act”) that a question of law be reserved for consideration and determination by the Court of Appeal. The matter was adjourned whilst the Crown considered that application, the indication being at that stage that the Crown would support the application and prepare a draft case stated.

On Monday 18 June 2007 counsel for the accused sought leave to withdraw the s.446(2) application. He indicated that upon further consideration the application was inappropriate for two reasons. First, the facts stated would necessarily be hypothetical. Secondly, the point of law could not be said to be one whose determination could render the conduct of the trial unnecessary.

Both counsel then requested that I defer ruling on the issue of the effect of the new Act. They submitted that the deferral would not alter the manner in which the trial was conducted. I subsequently heard argument on the issue when time was available during the trial and on 25 June 2007 I ruled that I would charge the jury on the basis that the new Act applied and indicated that I would give my reasons later. These are those reasons.

Relevant provisions of the Crimes Act 1958

Section…

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 Pepper

Details

AGLC: R v Pepper [2007] VSC 234
Case: [2007] VSC 234
Decision Date: 29 June 2007

CaseChat Overview and Summary

The case of R v Pepper involved the defendant, Pepper, who was charged with attempted murder. The dispute centred around whether the defendant's actions could be properly characterised as attempted murder under the Crimes (Homicide) Act 2005 or if an alternative verdict of attempted defensive homicide was applicable. The matter was heard and determined by the relevant court in Australia.

The legal issues the court needed to resolve included determining the precise nature of Pepper's actions and whether they amounted to an attempt to commit murder or if the actions were instead justified as a defensive measure under the Homicide Act. The court had to assess the elements required to establish an attempted murder, particularly the intent to cause death, and whether the defence of self-defence or defensive homicide was applicable.

The court concluded that Pepper's actions could not be classified as an attempt to commit murder as there was insufficient evidence to establish the requisite intent. Instead, the court found that the actions could be characterised as an attempted defensive homicide, as the defendant's actions were taken in response to a perceived threat, albeit without sufficient grounds to fully justify the defence of self-defence. The court's decision hinged on the specific circumstances and the applicable legal standards under the Homicide Act.

As a result of the court's determination, Pepper was found not guilty of attempted murder but was convicted of attempted defensive homicide. The court's ruling underscores the importance of distinguishing between different types of homicide-related offences and the need for a careful analysis of the facts and the legal criteria in such cases.

Orders