R v PP

[2002] VSC 548

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 1489 of 2001

THE QUEEN

v

PP

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2002
DATE OF RULING:	4 December 2002
CASE MAY BE CITED AS:	R v PP
MEDIUM NEUTRAL CITATION:	[2002] VSC 548

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for Public Prosecutions
For the Accused	Mr B.J. Bourke with Ms A.C. Fox	Haines & Polites

HIS HONOUR:

1. Mr Bourke on behalf of the accused has taken four exceptions to the charge to the jury.  The first is that when I referred to the evidence given by James and Helen Bruckner as to their perception that the fight moved down through the car park as they were departing via Brougham Street to the far carriageway and then to Princess Street, I had referred to the Bruckners as the Listers and that it needed to be corrected.

1. I cannot now recall whether I said the Listers or the Bruckners.  Certainly my notes refer to the Bruckners and that is what I intended to say, but I think that even if I did mistakenly once refer to the Listers, it would be sufficiently plain to the jury from the context in which my remarks were made that I was referring to the Bruckners in contradistinction to the Listers.

1. In taking that view I have regard in particular to the fact that I dealt specifically with the Listers and the way in which their car came to a halt in the carriageway nearest to Caitlin Smith, close to Brougham Street shortly before the final attack.

1. The second exception which is taken is that when I referred to evidence given by eyewitnesses, I lumped Neil Lister together with Kara Smith and Caitlin Smith and Katherine McDonald, as a witness who had actually seen the stabbing, whereas the truth of the matter is that Neil Lister did not see the stabbing, but saw action and then saw, he said, a knife in the hand of the accused shortly after the accused drew back from the action.

1. I do not consider that there is any substance in the exception.  I outlined in specific terms the evidence given by Neil Lister, in substance to the effect that he had observed the action and then observed someone to stand back and then seen the knife in their hand.  I do not consider that there could be any doubt in the mind of the jury which would lead them to conclude that I was suggesting that Lister had seen more than that.

1. The third exception which was taken was that I had referred to Katherine McDonald as having seen or as having been one of the witnesses who saw the accused "chase" the deceased, David Hossack. 

1. I am not too sure which part of the charge it is to which Mr Bourke refers in making that point, but again, I do not think that there is sufficient in it to warrant a redirection.  I did specifically direct the jury with respect to Katherine McDonald that they should take care because she could not say whether the deceased was approaching, departing from or stationary relative to the accused at the time of the stabbing.

1. The fourth exception which is taken concerns the directions which I gave to the jury on the subject of self-defence.  It is submitted by Mr Bourke that in describing the circumstances which the jury ought to take into account in determining whether the Crown had negatived that the accused believed, on reasonable grounds, that he was subject to attack or imminent attack, I did not make sufficient reference to his age and perhaps also to the events, at least since the Carey after-party, leading up to the night in question.

1. Yesterday, when I directed the jury on the subject of self-defence, I said amongst other things that:  "In deciding whether PP believed the stabbing was necessary for self-defence, you will need to consider the circumstances as PP perceived them to be at the time of the stabbing.  You have also got to take into account any extraordinary attribute which PP bears or which he has that bears on his perception of the danger.  I will come to that when I deal with the evidence, but obviously the sorts of things to which you will have regard will include any sense of apprehension the result of the Carey after-party, the threat to get PP, and the activities of the four on the night in question leading up to the events which resulted ultimately in the stabbing".  Certainly it is true that I did not refer in that passage to the accused' age.  And it may be that the direction would have been better if I had specifically referred to the accused's age.  But I do not consider that the jury can be in any doubt as to the effect of the accused's age in deciding whether he had reasonable grounds to form the reasonable apprehension that he was subject to attack or imminent attack.  Amongst other considerations, I made repeated mention of the accused's age when dealing with the subject of provocation. 

1. Were that all there were to it, I might be inclined to bring back the jury and redirect them, at least to the extent of saying specifically to them, that they should bear in mind in deciding whether there were reasonable grounds to apprehend an attack that the accused was only 15 at the time.  But as matters stand, it seems to me that would be over-emphasising the point to such an extent as to render the charge unbalanced;  and it is already a charge which might be regarded as favourable to the accused.  More importantly, after taking into account what I said to the jury yesterday and again this morning when dealing with the evidence to which they should have regard in deciding whether the accused did have reasonable grounds for an apprehension of an attack, I do not doubt that the jury will approach the matter on the basis that they are to endeavour to place themselves in the shoes of a 15 year old in exactly the same position as the accused was on the night in question.

1. Mr Bourke's final exception concerned the directions which I gave on the subject of provocation.  With all respect, however, I found his submissions on the point very difficult to follow.  To begin with, it appeared to me that he used the direction which I gave on provocation as an example of one which was, in some respects, favourable to the accused, in order to base contention that I should make more favourable to the accused the direction to be given on the subject of self-defence.  Later that seemed to change.

1. As finally formulated, however, I take the contention to be that I should have directed the jury specifically in substance or to the effect that in view of the accused's age, the standard of proof required to be discharged by the Crown is that much higher than otherwise it would be or alternatively in deciding whether the Crown has proved beyond reasonable doubt that the accused was not provoked, any jury might well take the view that a person who was only 15 years old when subjected to the considerations to which I have specifically referred would be provoked.

1. I do not consider that there is any substance in that exception.  I think that upon reading it will be found that the directions both as to law and evidence which were given on the subject of provocation are riddled with reference to the age of the accused and to the necessity of the jury to place themselves, as it were, in the shoes of someone of his age faced with the particular circumstances to which he was subject on the night in question, and that it is upon the Crown to discharge the burden of proof beyond reasonable doubt in order to persuade the jury that the accused was not provoked to do what he did in stabbing David Hossack.

1. In the result, I reject the application that I further direct the jury.

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