R v Vella
[2007] VSC 585
•3 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1432 of 2007
| THE QUEEN |
| v |
| CRAIG ANTHONY VELLA |
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JUDGE: | COGHLAN, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 - 17, 20 - 24, 27 – 31 August 2007 | |
DATE OF RULING: | 3 September 2007 | |
CASE MAY BE CITED AS: | The Queen v Craig Anthony Vella | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 585 | |
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Criminal law – Murder Trial – No case submission.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Lincoln | Office of Public Prosecutions |
| For the Accused | Mr P. Haag | Amad & Amad Solicitors |
HIS HONOUR:
Mr Haag on behalf of the accused has submitted that there is no case for the accused man to answer on the charge of murder.
The alleged offence of murder occurred on the 27th of April 2006. The relevant law governing self-defence is to be found in Part 1 Division 1 Subdivision (1AA) of the Crimes Act 1958.
Section 9AC is of application:
“Murder – ‘self-defence’
A person is not guilty of murder if he or she carries out the conduct that otherwise constitutes murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.”
It is accepted by the prosecution, rightly, on the material, that the question of self‑defence is raised.
Put simply, Mr Haag submits that it would be impossible for the prosecution to rebut the proposition that the accused did not believe that his conduct was necessary to defend himself from the infliction of death or really serious injury.
The circumstances surrounding the death of Michael Dewhirst can be stated relatively briefly. On the morning of 27 April 2006 the deceased spoke to Naomi Vella, the daughter of the accused, outside the Amcal Chemist in Palmerston Street, Melton. He threatened the accused in strong terms. Naomi Vella went to the accused’s house and told him of the threats. The accused left his home to go to the same chemist’s shop to receive medication. Along that journey he went with his daughter to the local Office of Corrections office. There he encouraged his daughter to report threats which had been made to her. Although it appears that no direct threats were made to Naomi Vella, it appears that the accused thought that threats had been made to her. For present purposes whether the threats had been made to her about herself or about her father is not material.
The accused was overheard in conversation with an acquaintance by an Inspector of police, Inspector Payne. A knife said by the Crown to be the murder weapon was shown to both Naomi Vella and the witness Micah Duncan.
The accused met Micah Duncan at the chemist and the two of them set off north in Palmerston Street towards the accused’s home. They were on the eastern footpath. At a point before they had reached the intersection of Palmerston Street and Essex Drive, the deceased came alongside them in his white Holden station-wagon. He was driving very slowly (close to walking pace) leaning out the window of his car and abusing the accused and Duncan. It is fair to say that the abuse was directed almost entirely, if not entirely at the accused.
Some witnesses heard some of the language used, I will set that out in detail later. The accused was yelling back but no witness gave evidence of what he said. The accused also held up his phone on which he was speaking to Jayde McGeary and asked her to listen but the call was cut off shortly afterwards.
At about that time the deceased did a quick right hand turn into Essex Drive. He got out of the car and came towards the accused and Duncan. Somewhat unusually there are a large number of eye witnesses in this case. That fact was a result of a large number of school children leaving one of the local schools which is situated a short distance further to the north along Palmerston Street.
There are many versions of events.
It does appear to be common ground that the deceased approached the accused in a hostile manner. The deceased was armed with a hammer, which he placed down the back of his trousers. The accused was armed with a knife but there is no direct evidence of when he first produced it. The deceased may have pushed and punched the accused and the accused threw a punch-like blow to the left lower abdomen of the deceased with his right hand and may have thrown other blows. At sometime the deceased produced the hammer. It is not clear on the evidence as to whether it was the only blow with the hammer but the hammer was raised to shoulder height at about the time the deceased was stabbed. The stabbing caused him to drop the hammer. When the accused moved back from the deceased, many witnesses saw a knife in his hand. He ran off almost immediately with Duncan and hid.
The deceased lifted up his top and showing that he had been stabbed and said that he had been stabbed.
The accused rang 000 and reported the matter. He said that he had acted in self-defence in response to an attack made on him by the deceased with a hammer and in the context of threats to his daughter earlier in the day. He said that he was afraid of the deceased, who had been involved in an incident at The Dome. That was a reference to a night club at which two security guards had been shot.
After he and Duncan heard sirens, they left their hiding place and returned to the accused’s home about a block away. Shortly afterwards the accused hid the knife which he had used and replaced it with a smaller knife from his kitchen. When the police arrived he gave them that knife as the weapon he had used. He was interviewed by the police at about 4.45pm about an hour and a half after the stabbing.
In that interview he stated that he had acted in self-defence. He said that the knife was the one produced and that the carrying of it was virtually accidental as he had been using it the night before when dealing with polyanthus in the garden. He gave a detailed explanation of the process.
The accused made reference to an occasion a few months earlier when he had been assaulted by the deceased and reference to an occasion about a week earlier when he had been assaulted. He described the deceased as a very dangerous man and said that all he sought was to be left alone.
He described the history of his relationship with the accused and of the visit to the parole officer on that day. He also implied that he was not sure that he had stabbed the deceased only that he had lunged at him. At the time of that interview it had not been confirmed that the deceased had died.
After that fact was confirmed the accused was further interviewed at the Homicide Squad offices in the early hours of Friday the 28th of April. In the interview the accused repeated his assertions about acting in self-defence out of fear of the accused. The accused said the incident largely related to a demand that he withdraw his statement against the deceased. The accused said that he feared that he would be struck by the hammer. He described his actions with the knife more as a “poking out” motion in the direction of the deceased rather than a lunge. He maintained that the knife he used was that which he had handed to the police and described it as a steak knife. He described the deterioration of his relationship with the deceased, particularly over an incident involving his then girlfriend Jayde McGeary and the use of heroin.
The thrust of Mr Haag’s submissions was that the evidence in the case was so much in favour of the accused on the question of self-defence, that a jury could not, without acting perversely, reject at least the first limb of self-defence as it is reflected in s. 9AC.
The evidence he adverted to fell into seven categories. First, the evidence of the fear that the accused entertained based upon his own personal experience of the deceased and his own knowledge of the deceased’s background. There can be no doubt that the deceased was a violent man who had been violent to the accused in the past, who had a reputation for violence and who had many prior convictions for violence. Second, that the fear of the deceased held by the accused had been heightened by the incident involving Naomi Vella earlier on 27 April and that she had communicated the threats and her feelings to the accused. Third, that the deceased had behaved in a particularly abusive and threatening manner to the accused when he was driving along Palmerston Street. Fourth, the deceased had got out of the car and approached the accused aggressively. Fifth, the deceased was armed with a hammer which witnesses variously described as being reached for or produced and used to attack the accused. Sixth, in particular, Mr Haag placed particular reliance upon the evidence of the witness Perry Milson and in particular his reliance to the accused saying words to the effect, “got a gun have you?” That last remark fitted in with at least one question and answer in the record of interview. In particular:
“Q296 Mm
AHe might have had gun behind his thing there because he is a known gun totaller.”
Seventh, Mr Haag relied upon those witnesses who said that the hammer was produced and or used before the stabbing. He might equally have included any witness who saw the deceased with hands behind his back as if fiddling with or reach for something.
It is true to say that a strong case for self-defence has been made out and the prosecution have a difficult task to prove beyond reasonable doubt that the accused was not acting in self-defence.
The test to be applied to a no case submission is well established. Although some disquiet has been expressed from time to time about the test being unfavourable to accused persons, the law continues to be that set out in R v Doney.[1] I suppose the main thing to be said about Doney is the recognition of the primacy of the jury when deciding questions of fact. It is also one of the few remaining authorative cases which were decided by all the members of the Court who sat. The Court concluded at p.215:
“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.”
[1](1990) 171 CLR 207.
The question in this case is: can the prosecution prove beyond reasonable doubt that even if it was an occasion which had the appearance of giving rise to self-defence of the accused, did he use it as an opportunity, rather than acting in self-defence, to punish or attack the accused? If a jury were so satisfied and were satisfied of murderous intent, it would be open for the accused to be convicted of murder.
The question of the knife is one which falls for consideration by the jury. It is common ground that the accused man gave a different knife to the police. Just how different those knives are is a matter for the jury. The post-offence conduct of the accused which will be relevant to the jury’s deliberation is not just the substitution of the knife but also the innocent explanation advanced by the accused as to the reason as to how be came to be carrying the knife and the manner in which he used it in a “fight”.
The defence argues for an overwhelming climate of fear in the relationship between the accused and the deceased. There is other evidence on the topic. Analysis of the background of the accused’s reactions on 27 April 2007 was important.
Some of this evidence is subject to dispute but the following matters are before the jury: The accused was angry when told about the threat and showed the knife to both Naomi Vella and Micah Duncan. His daughter said he got angry and that he said that he was sick of everything and had enough of what everyone was doing to him. When he produced the knife to his daughter, he said with reference to the deceased that he wanted to get him.
The witness Micah Duncan was shown the knife near the Amcal Chemist and the accused said he wanted to “sort it out”.
Inspector Payne gave evidence that he overheard the accused say that Michael Dewhirst had threatened his 16 year old daughter and he had been looking for him all day. He was agitated, walking up and down. No complaint of Dewhirst’s conduct was made to Inspector Payne. When he returned to the police station, Inspector Payne put the incoming shift on alert.
When interviewed about this matter, the accused did not give any indication of being afraid of Dewhirst as a result of this incident. In relation to the aggravated burglary which had occurred at the accused’s house, he claimed that Dewhirst had falsely claimed responsibility for it.
Kathleen Butler gave evidence that the accused had told her about two weeks before the incident, that he was going to get a knife and kill the deceased.
After the stabbing, the attitude of the accused was extremely hostile, according to witness Andrew Dannatt.
It is open for the jury to conclude that on the 27th of April, the accused’s attitude to the deceased was one of anger and resentment, rather than one of overwhelming fear as put on his behalf.
The other parts of the evidence to be looked at are those involved in the post-offence conduct of the accused. As already outlined, the accused replaced the knife used in the killing with another knife. He told a series of lies about how it was he was carrying the knife and it is open to the jury to conclude that he told lies about how he used the knife in the fight.
All of those matters are closely related and it is really one course of conduct by the accused to distance himself from the knife used and the manner of its use but in reality it is one piece of post-offence conduct.
In my view, it is open to the jury to say that that conduct was such that they could draw an inference that the accused man was involved in murder as an implied admission of guilt. The conduct going both to the question of intent and the question of self-defence. In particular the lies about how it was he had the knife with him and the nature of the weapon itself, might well undermine the assertions of fear made on behalf of the accused.
It is true that careful directions will have to be given about post-offence conduct and such reasons that the accused might have to advance his version but it is evidence available to the prosecution.
Alternatively it would be open for the jury to say the lies were such that they severely undermined the version of events given by him in the records of interview. I therefore conclude that although I do not regard the prosecution case as a strong one, that there is a case to answer on the count of murder.
For the reasons I explained to counsel in argument, the alternatives open are murder, defensive homicide and manslaughter. Mr Haag expressed concern that his client might separately be at risk for defensive homicide and manslaughter. I have assumed that that is not so. It is not so because the jury will have to decide the question of intent as the first question. The question of what the accused intended at the time he struck the one blow is a live one. Defensive homicide could only arise if the jury were satisfied beyond reasonable doubt as to murderous intent. Manslaughter can only arise if the jury are satisfied of an intent less than murderous intent which is objectively dangerous as the law understands it.
Mr Haag had raised the question of whether the “defence” of sudden or extraordinary emergency pursuant to s.9AI of the Crimes Act 1958 is open. That section is the statutory form of the old common law defence of necessity. I do not regard the circumstances as either a sudden emergency or extraordinary emergency. The law is well settled that circumstances such as the present give rise to self-defence. Even in its new statutory form, if what were formally the two common law limbs, actual belief based on reasonable grounds, are made out, a complete acquittal follows. To be fair to Mr Haag, his principle concern was that if the words “reasonable grounds” as used in s.9AD of the Crimes Act 1958 had a different meaning to the expression as it has been used at common law, ie. the test had become an entirely objective one, then he saw some work for s.9AI to do. Otherwise he did not press the point.
The prosecution had also submitted that there was another aspect of post-offence conduct which the jury could use as showing implication in the offence. That was a lie or series of lies in which the accused had asserted that the deceased, “attacked him with a hammer”. The prosecution would say on the whole of the evidence it would be open for the jury to conclude that the stabbing was not in self-defence because the stabbing came before the hammer was produced. That is a line of argument open to the prosecution. I am asked to consider whether or not it is open for the prosecution to also put that as a lie and to say to the jury that such a lie would show implication in the crime of murder.
I accept the former, that is, an argument can be mounted on whatever the jury conclude and I reject the latter. The matter is all together too finely balanced to allow the question of possible lies about the hammer to be used as post-offence conduct from which the jury can draw further inferences going to guilt. The expression, “intractably neutral” has been used in recent cases.[2] One of the difficulties about the question of “lies” in this context is that there can be no doubt that the deceased did have a hammer with him, that he placed down the back of his trousers and that he did produce it. What then would constitute a lie about it? It may be if the jury conclude at the end of the day that the stabbing did take place before the hammer was raised. It does not follow that a possible lie about it ought to have any additional weight in a case of this kind and in character is intractably neutral.
[2]See R v Ciantar [2006] VSCA 263, R v Jakimov [2007] VSCA 9.
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