R v Roba
[2000] VSC 97
•22 February 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL JURISDICTION | Not Restricted |
No. 1448 of 1998
| THE QUEEN |
| v. |
| PAUL ROBA AND OTHERS |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | GEELONG | |
DATE OF RULING: | 22 FEBRUARY 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 97 | |
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CATCHWORDS: Self-defence – Whether should be left for consideration of the jury – Zecevic v. D.P.P. (Victoria) (1987) 162 CLR 645; The Queen v. Williams (ruling of Vincent, J. delivered on 8 February 2000) – Jury to consider issue.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. Leckie | Office of Public Prosecutions |
| For the Accused | Mr. D. Brustman Mr. F. Gucciardo Mr. H. Mason | Victoria Legal Aid G.R. Bryant & Associates Paul A. Vale Pty. |
HIS HONOUR:
At the commencement of this trial the question arose as to whether, in the circumstances of the case against Paul Roba, the issue of self-defence was one which should be left to the jury. Consideration of that question was postponed until the conclusion of the prosecution case.
Mr Leckie, on behalf of the Crown, expressed concern as to whether this was the appropriate time to canvass the matter. For reasons I advanced in the course of argument I was of the view that albeit this was a trial involving three accused, the course adopted by Vincent J in R v. Williams, (a ruling delivered on 8 February of 2000), should be followed and would occasion no unfairness to the accused.
The evolution of the law of self-defence has been discussed in such cases as R v. Lawson and Forsythe [1986] V.R. 515, but the present state of the law is set out in Zecevic v. DPP (Victoria) (1987) 162 C.L.R. 645.
Both Mr Leckie, and Mr Brustman, on behalf of the accused Roba, quoted from it in the course of argument. In particular, the joint judgment of Wilson, Dawson and Toohey JJ was relied upon.
It is perhaps worth noting as a starting point two statements in that judgment, at p.657. Firstly:
"Although self-defence is still commonly referred to as a defence, the ultimate onus of proof with respect with respect to self-defence must not rest on the accused. Since Woolmington v. Director of Public Prosecutions 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 Roba.
Secondly, in a passage at p.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 R v. Muratovic: '… 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 upon a plea of this kind, as upon any other question of fact, provided that there is evidence on which a reasonable jury could decide the issue favourably to the accused'."
There are a number of statements of legal principle enunciated in the joint judgement in which the majority of the judges in Zecevic's case agreed. They provide a conceptual framework against which the facts in any individual case must be considered. At p.661 there is the observation:
"It is apparent, we think, from the difficulties which appear to have been experienced in the application of Viro, that there was wisdom in the observation of the Privy Council in Palmer that an explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
Stated in that form the question is one of general application and is not limited to a case of homicide. Where homicide is involved some elaboration may be necessary".
The joint judgment continues (p.662/3):
"When upon the evidence the question of self defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often be desirable to remind the jury that in the context of self defence it should approach its task in a practical manner without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection."
Nonetheless, as is pointed out by their Honours (p.663):
"Where an accused person raising a plea of self defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds that his actions were necessary in self defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self defence. [Cases cited]".
Their Honours also note at p.663:
"Whilst in most cases in which self defence is raised the attack said to give rise for the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. This is demonstrated by the exhaustive examination of authority carried out by Ormiston J. in R. v. Lawson and Forsythe."
The judgment continues (p.663 and 664):
"It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self defence. The whole of the surrounding circumstances are to be taken into account where an accused person has created the situation in which force might lawfully be applied to apprehend or cause him to desist - where, e.g., he was engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self defence but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency to provoke a lawful a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack."
It is trite to say that the "whole of the surrounding circumstances" will vary significantly from case to case. Towards one end of the spectrum might be placed the case of R v. Kear (1997) 2 V.R. 525 and towards the other end, R v. Williams to which I have already referred.
However, one common thread is articulated by Vincent J at para.16 of Williams case.
"The instruction given by a trial Judge to the jury must be directed to the issues of fact and law that can be identified as having been raised by the evidence adduced in the trial. They are neither meaningful or useful in the absence of an appropriate evidentiary framework which justifies the putting of the issues before the jury in the first place and gives rise to a duty to instruct them (inter alia) as to the principles of law relevant to the jury consideration of those issues and an obligation to relate the principles to the evidence. Where no appropriate evidentiary framework exists to which the instructions can be attached, the provision of broad statements, and the intrusion of what are in terms of the evidence irrelevant principles of law are, at best, time wasting and unnecessary and, of worst, a virtual invitation to the jury to engage in illegitimate speculation.
As His Honour noted in that case (para.18): "Of significance when considering whether the reasonable possibility existed on the basis of the evidence that an occasion for self-defence may have arisen for the accused is the fact that he at no stage asserted or even intimated that the deceased may have been doing more than strenuously resisting the three intruders."
A considerable amount of argument was addressed by both counsel to the factual similarities and differences between Williams case which Vincent J eventually concluded that self-defence should not be left for the consideration of the jury, and the instant case. Such an exercise is, in my view, of limited worth. The primary and pre-eminent task of a trial Judge must be the evaluation of the instant evidentiary material in light of the applicable principles.
In addressing the evidence, Mr Brustman referred first to the account of events by Ms Natalie Roba. On my reading of it, Ms Roba deposed to identifying the voice of her brother in the initial conversation at the house and informing her partner Robert Filipovic of that fact. At the time when the doors were being kicked or banged, Mr Filipovic had gone into the back room.
Ms Roba gave evidence of three armed men, one being her brother armed with a pole, and each with their faces covered, entering the loungeroom of the Drysdale property. She said they stopped after entering and looked around the place. Thereafter, one person approached the bed on which she was seated and two moved quickly towards the back door.
In the course of her evidence, Ms Roba also said that she glimpsed her boyfriend Robert when the men were making their way into the house. He was standing on the steps leading into the back room, leaning forward into the kitchen area and apparently stationary. He had a knife in his right hand. As to whether this was what has been described as a bread knife or a butchers knife is no doubt a matter for the jury to determine. However the DNA material on the handle of the butchers knife revealed the DNA profile of the deceased.
The gist of Ms Roba's evidence was that, as the men moved quickly towards Mr Filipovic, or were in the kitchen area. She heard him say: "Alright, come on you fucks". Her evidence was to the effect that she did not think there was an altercation in the loungeroom, albeit that there were two upturned chairs in the lounge area between her bed and the kitchen area. At one stage (p.343) she conceded that her boyfriend could have emerged into the loungeroom for some distance without her seeing him.
On the other hand, the location of the knives, damaged light fitting and ceiling area and the presence of the deceased's blood in the back room would lend support to her admittedly truncated version of events.
On the basis of her evidence and the surrounding circumstances, it would certainly be open to the jury to infer that some, if not all of the altercation, occurred adjacent to or in the back room.
Mr Brustman next referred me to material in the accused's video taped interview which he asserted was far from "the bare incantation" of the expression "self-defence" which Vincent J adverted to in Williams case.
It is, I think, necessary to set out a number of the passages to which counsel drew attention.
At question 45 the accused said this:
"When we got in the house I wanted to tell him to just keep away from my sister and my parents and that, but he come at me. He had a knife and everything. It made the situation worse and I hit him with a bar that I had. Just a jab to the face, just a - because the knife was getting thrown at me then he hit the ground and he was unconscious. From then it was just bloody panic settled in because I didn't plan it to happen like that. I just wanted to talk to him and scare him, you know. And then after he was unconscious we - we ran out, you know."
Part of the answer at Question 51:
"When we kicked the doors down, kicked the first one and the second one, went in, he was in the kitchen with a big knife, right, and that stuffed up my plan already, 'cos how am I supposed to scare him now with a bloody big knife in his hand and he's going all apo and that because I had the bar. Not to fuckin' hurt or bloody kill anyone, or whatever. I just jabbed in the - like, in the head, when he had the knife like that and then he just hit the ground, but I didn't even do it with full pelt. Just like a jab. And when he hit the ground I started spinnin' right out 'cos I knew he was unconscious."
A portion of answer 103 reads:
"And then I seen - when I looked at her, 'cos it happened so quick, I looked at her, seen this guy on the right, maybe five metres away. I can't really explain the house too well. With a knife, you know, and he's yelling 'Come on, fucking' … and he's yelling all this shit and because I've never been at it with the knife before - never - I've had a couple of wrestles on the footy ground, this and that, you know. I got really shocked over that and so I just jabbed him. Jabbed in the face."
Question and answer to 108 is as follows:
Q:"When you jabbed him with the bar what did you intend to happen?"
A:"Stop that knife getting swung around at me, you know, that's what I intended to happen."
The exchanges from Question 273 to 275 were next pointed out by Mr Brustman.
273 Q: "I put it to you that by taking an iron bar and three friends that you did go there to do harm?"
A: "No, I didn't because if I wanted to do harm my sister would have been as well stuffed up. I didn't go there to do - I went there - I went to do a scare tactic".
274 Q: "So then why didn't you leave then?".
A: "When?".
275 Q: "When you saw the knife?".
A: "Because - like it's hard to explain because it all happened so quick. When I was in the house he was at me with the knife. It was either me coppin' it with a knife or givin' him one and then - and run out, because it happened so quick. He was at me with the knife. I wanted to tell her [and himself] I already had it in my brain what I wanted to tell 'em, and it just didn't happen that way, you know".
It was put by Mr Brustman that, unlike Williams case where the mantra of self-defence was invoked by the accused, in this case the interrogator, Detective Senior Constable Cindy Millen, was alert to the fact that the circumstances potentially raised the issue of self-defence.
Consequently, at Question 319, this exchange occurred:
Q: "Well, I put it to you that you weren't acting in self-defence when you hit him because you had a chance to back out the door. What do you say to that?".
A: "I can't, because I was disorientated where the door was, with him coming at me".
Quite apart from the passages to which Mr Brustman adverted there are other questions and answers which may be regarded as having some relevance. I include them for completeness. They are part of the questioning by Detective Senior Constable Millen and are as follows:
"238 Q: "Right?".
A: "I even - I would've even had to pretend - to put a scare tactic onto Rob, but when I went in there it was real life straight away because he had the knife, you know".
239 Q: "Yes. So, when you've gone into the front door what was the distance between yourself and Rob?".
A: "When I looked at Natalie on the bed I seen on the right of the bed is - was the kitchen. He was, say, three or four metres away".
240 Q: "Was there anything in between yourself?".
A: "No".
241 Q: "And Rob?:.
A: "No".
242 Q: "Okay. So, at the point when you've seen the knife can you just describe to me what happened in detail next? Like, who moved first or what had to be done?".
A: "I can't say exactly on footsteps, when I seen … [there is a gesture on the video].
243 Q: "Right. So, what did you do then?".
A: "That's when I thought I was gonna get stabbed. That's when I went like that, and then I just jabbed him".
244 Q: "So, did you move towards him, and did that, do that?".
A: "It was more of a stand my ground kind of. Not move towards, but stand my ground, you know. I didn't launch forward towards him, no".
245 Q: "No, I'm not saying that?".
A: "Yes. No, I stood my ground, you know, because I didn't know where his fists and hands were gonna go next, kind of thing, and plus it all happened so fast. Five seconds, it was all over, you know".
252 Q: "Right. So what you're saying is that you were originally a couple of metres away from him?".
A: "Yes. Like I said, it all happened so - so fast. We were straight together straight away, you know".
253 Q: "Right?".
A: "And because I kicked his door in, as far as I sort of knew, he was coming to stab me, you know, for someone kickin' his door in, you know".
254 Q: "Right?".
A: "You know, and I can't blame him on that aspect for doin' that because I went there for a particularly different reason. You know what I mean? But when he picked up the knife I had to - I wasn't holding the bar through force, as in 'I'm goon' to hit you'. As soon as he had the knife I was holdin' it like a, you know, like a, I don't know. It was like a stick, in that motion, you know:.
255 Q: "But if both of you were a couple of metres away from each other how did you - how did you make contact?".
A: "As him swingin' his fists, of course".
256 Q: "Did you move towards him?".
A: "I would have moved towards him when he moved towards me because I thought I was going to get stabbed, you know".
257 Q: "Was there anything behind you and the front door?".
A: "Me and the front door?".
258 Q: "Yes. So you're saying you kicked the door?".
A: "There could have been a friend behind me. Yeah, there would have been a friend behind me".
260 Q: "So, when you saw the knife?".
A: "Yes".
261 Q: "Why didn't you retreat back out the door?".
A: "Because for one I was just [disorientated]".
264 Q: "OK?".
A: "Because when I went - actually went in and it just happened all so fast I didn't … two steps back, one to the left, one to the right, I'm out of there. I thought if I turned around I'd get the knife in my back, you know".
265 Q: "But you're saying you made that conscious decision to take a couple of steps forward?".
A: "Yeah, when I moved in it was just a … to get through the door".
266 Q: "Why did you do that and not retreat back out of the door?".
A: "Because it all happened so quick. I don't know what to say. He was right at me before - if I turned around and I ran I - could have been a knife. I didn't even think along those lines. He just come at me and it just happened".
267 Q: "So what was the immediate thing you thought of when you saw the knife?".
A: "He was gonna stab me. I'm gonna get stabbed. I can't tell you … the length of the knife or anything but I knew it was a knife. I could see the blade, you know, in the corner of my eye, kind of thing, as in a blade but not measurements, and yeah, I thought I was gonna get stabbed".
I should interpolate that it was always the assertion of the accused Roba that the visit to Barrands Lane in Drysdale was to scare rather than hurt the deceased. This is a claim which, of course, the jury may or may not accept. The timing of the visit, the number of persons involved, the disguises, the mode of entry, and the carrying of at least one weapon, (the iron bar), are each factors which may lead the jury to a contrary conclusion. In addition, there is the assertion of Hasan Kevelj that, amongst the more benign scenarios discussed on this evening, were more aggressive approaches. These included the claim by the accused Novosel that he would use his knife to cut open the leg of Natalie's boyfriend, and a general conversation about possibly teaching the boyfriend a lesson and bashing him about a little bit.
Moreover, there was the evidence of Mr Kevelj of admissions by the accused Roba of a subsequent attack on the deceased by punching and/or kicking him. To this may be coupled the forensic evidence of the large number of injuries sustained by Mr Filipovic including injuries consistent with blows from a bar.
It is, of course, not possible to determine the extent to which the jury will accept any of these pieces of evidence, and the inferences they may be prepared to draw from them as to the circumstances surrounding the infliction of the fatal blows to the left temple of the deceased, and the state of mind of the accused Roba at the crucial time of such infliction.
The core of Mr Brustman's submission was that, even considering the initial aggression of the accused in breaking into the deceased's house, and that it provided an occasion for self defence, the actions of the deceased went beyond any reasonable response. In particular, any advance by him wielding the knife inviting the accused to fight with the words, "Alright, come on you fucks" superseded any initial violence on behalf of the accused - which violence related to the breaking into the dwelling. At this point, it was argued, the deceased became the aggressor.
In response, Mr Leckie cited the passage in Zecevic's case at p.664 to which I have already referred and further argued that, "the appropriate evidentiary framework" to which Vincent J. adverted in Williams' case was absent on the present facts. Mr Leckie pointed out, correctly, that on the evidence there was at least a plan to confront and scare the deceased in his Drysdale home. This plan was persisted with despite the refusal of entry and the threat by the deceased to call the police. It was put by Mr Leckie that the only proper analysis of the facts was that the deceased was in the vicinity of the kitchen and back room (or sunroom) doorway at the time the accused entered the lounge room. It was further put that thereafter Roba, and at least one companion, crossed the lounge room to confront Mr Filipovic. There was little evidence that Mr Filipovic moved forward and, given Roba's assertion in the interview that the deceased immediately fell down after being hit, it was a reasonable conclusion that the confrontation had not occurred in the lounge room. In this regard Mr Leckie pointed to the lack of blood in the lounge room, (albeit the fatal injuries manifested themselves as grazes), compared to the situation in the back room with the pool of blood and clear signs of a struggle. The only reasonable conclusion on that evidence, it was submitted, was that the accused and a companion had advanced across the lounge room, a distance which Mr Leckie placed at eight metres, whilst the deceased advanced no further than the kitchen/back room doorway. If this be so, the argument proceeded, the accused Roba had not desisted from a violent confrontation with the deceased, and he remained the aggressor. Nor had the occasion for self defence by Mr Filipovic ceased. The call, "Alright come on you fucks" by Mr Filipovic must be regarded as reasonable in the circumstances as part of his endeavour to scare off the intruders in his house.
I am bound to say that the analysis by Mr Leckie has considerable force. However, to say that the conclusions which flow from that analysis are the only conclusions at which a reasonable jury could arrive is to give the Crown case a level of certainty it does not possess. The jury may place weight on the assertions by the accused in his police interview of the deceased advancing towards him wielding a knife. It is possible that the words: "Alright, come on you fucks" may be seen as a invitation to fight and that the use of those words together with any advance by the deceased constituted a new confrontation which had nothing to do with self defence. There may be a view that, angered by this intrusion to his house the deceased became the aggressor.
The exact location of the initial confrontation may be a matter of debate despite the tenor of the evidence of Ms Roba, despite the fact that the deceased was ultimately found unconscious in the back room of the premises and despite the surrounding circumstances which have been canvassed in this ruling.
The arguments presented by Mr Leckie may well persuade a jury that the Crown have negatived self defence. Indeed, the plea may be regarded as having little merit. Nonetheless however, "weak and tenuous" the plea of self defence may seem, (to borrow from the words of Gibbs J. in R v. Muratovic), I have concluded that, given the state of the evidence, the applicable legal principles require me to leave the issue of self defence for the consideration of this jury.
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