R v Shumski (Rulings 1-3) - [2024] VSC 828

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT LATROBE VALLEY

CRIMINAL DIVISION

S ECR 2023 0216

Between:
THE KING
-and-
SPENCER SHUMSKI	Accused

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JUDGE:	Croucher J
WHERE HELD:	Latrobe Valley
DATES OF HEARING:	11‑13 November 2024
DATES OF RULINGS:	11‑13 November 2024
DATE OF PUBLICATION OF REASONS:	28 March 2025
CASE MAY BE CITED AS:	R v Shumski (Rulings 1‑3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 828

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CRIMINAL LAW — Murder trial — Pre‑trial rulings — Incident captured on CCTV — Accused, holding knife in right hand, confronted MC and swung at him with right arm, perhaps nicking his thigh with knife — Each then backed away from other, adopting fighting stance — Deceased, from several metres behind MC, ran with arms raised towards accused — While retreating from deceased, accused swung right arm and stabbed him to chest with knife — Deceased faltered momentarily but got up and kept running towards retreating accused, lunging and throwing punch at him — As deceased advanced, accused stepped sideways slightly and stabbed deceased again to chest with knife — Deceased died at scene — Mens rea for murder and self‑defence main issues at trial — Manslaughter to be left in alternative.

RULING 1 — Contemporaneity of elements of homicide — Whether Crown must prove voluntariness, mens rea and absence of self‑defence accompanied both stabbing actions, notwithstanding only one action resulted in internal injuries that caused death — Two stab wounds, one below left nipple (“wound C”), other to middle of chest (“wound D”) — Internal damage associated with wound C caused death, not survivable — Internal damage associated with wound D very minor, survivable — Direction of two wound tracts very similar — While perhaps more likely wound C caused by first stabbing action than second, not open to exclude reasonable possibility that either wound (and related internal damage) caused by other stabbing action — In those circumstances, principle of contemporaneity requires jury to be directed that Crown must prove voluntariness, mens rea and absence of self‑defence accompanied both stabbing actions, notwithstanding only one action caused death — DPP v Zheng [2013] VSCA 304; Meyers v The Queen (1997) 147 ALR 440; R v Hughes (unreported, Court of Criminal Appeal, Crockett, McGarvie and Beach JJ, 20 March 1990).

RULING 2 — Whether recklessness to be left as alternative head of mens rea for murder — Recklessness not to be left — Herodotou v The Queen [2018] VSCA 253; Wilson v The Queen (1992) 174 CLR 313; Pemble v The Queen (1971) 124 CLR 107.

RULING 3 — Whether open to leave self‑defence to jury in view of Crown argument that accused was responding to lawful conduct by deceased (in defending MC) — Whether reasonably possible accused not responding to lawful conduct or that did not know deceased’s conduct was lawful — On current state of evidence, open to leave self‑defence — Crimes Act 1958 (Vic), ss 322I, 322K, 322L & 322N; R v McDowall (Ruling…

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.

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Details

Case: [2024] VSC 828
Decision Date: 28 March 2025

CaseChat Overview and Summary

The case of R v Shumski before the Victorian Supreme Court involved the trial of the accused, Shumski, for the murder of the deceased. The incident was captured on CCTV which showed Shumski holding a knife and engaging in a physical altercation with the deceased. The deceased suffered two stab wounds, one of which was fatal. The primary legal issues were the mens rea for murder and whether self-defence was a viable defence. Manslaughter was to be considered as an alternative.

The court held that the Crown must prove that voluntariness, mens rea, and absence of self-defence accompanied both stabbing actions, not just the fatal one. This was because it was not possible to exclude the reasonable possibility that either stabbing caused the fatal wound. The principle of contemporaneity required that all elements of the offence be present at the time of the act, even if only one act resulted in death. The court also held that recklessness should not be left as an alternative head of mens rea for murder. Finally, the court found that it was open to leave the question of self-defence to the jury, as it was reasonably possible that the accused was not responding to lawful conduct by the deceased.

The court made three rulings. Firstly, the Crown must prove the voluntariness, mens rea, and absence of self-defence accompanied both stabbing actions. Secondly, recklessness should not be left as an alternative head of mens rea for murder. Thirdly, it was open to leave the question of self-defence to the jury. The court’s reasoning was based on the principles of contemporaneity and the need for the Crown to prove all elements of the offence at the time of the act. The court also relied on previous cases to support its findings.

The final orders of the court were that the Crown must prove the voluntariness, mens rea, and absence of self-defence accompanied both stabbing actions. Recklessness should not be left as an alternative head of mens rea for murder. It was open to leave the question of self-defence to the jury. The trial proceeded on these legal principles.

Orders