R v Zdravkovic
[2020] ACTSC 251
•16 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zdravkovic |
Citation: | [2020] ACTSC 251 |
Hearing Dates: | 14 – 18 September 2020 |
DecisionDate: | 16 September 2020 |
Reasons Date: | 18 September 2020 |
Before: | Mossop J |
Decision: | I rule that the evidence does not disclose any matter that justifies leaving to the jury the matter of self-defence in relation to the possession of the firearm or the knuckledusters the subject of counts 1 and 2: see [49] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury trial – whether self-defence should be left to the jury – whether the Firearms Act 1996 (ACT) and the Prohibited Weapons Act 1996 (ACT) impliedly repeal s 42 of the Criminal Code 2002 (ACT) – they do not – whether the evidence is capable of establishing a reasonable possibility that the requirements of s 42 were met – no evidence of an imminent threat – self-defence not left to the jury |
Legislation Cited: | Crimes Act 1900 (NSW), s 418 Criminal Code 2002 (ACT), ss 8, 42, 58, Ch 2 Prohibited Weapons Act 1996 (ACT), s 5 |
Cases Cited: | R v Burgess [2005] NSWCCA 52; 152 A Crim R 100 Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 |
Parties: | The Queen (Crown) Peter Zdravkovic (Accused) |
Representation: | Counsel P Dixon (Crown) J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Numbers: | SCC 302 of 2018 SCC 304 of 2018 |
MOSSOP J:
Introduction
The accused faced two counts on an indictment dated 23 March 2020. The first alleged that he possessed a firearm that he was not authorised to possess under the Firearms Act 1996 (ACT), contrary to s 43(1)(a)(iii). The second alleged that he possessed a prohibited weapon, being some knuckledusters, that he was not authorised to possess under the Prohibited Weapons Act 1996 (ACT), contrary to s 5 of that Act.
The proceedings were conducted before a jury. At the commencement of the case I was asked by the Crown to make an advance ruling under s 192A of the Evidence Act 2011 (ACT) that evidence relating to self-defence was not admissible at the trial. That was on the basis that s 42 of the Criminal Code2002 (ACT) could not be raised in relation to charges of possessing a firearm contrary to s 43(1)(a)(iii) of the Firearms Act or possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act.
For reasons I gave at the time, I declined to make such a ruling. Rather, I allowed the evidence to be led and heard submissions following the close of the Crown case as to whether or not self-defence was an issue that should be left to the jury. Counsel for the accused indicated that there would be no defence case and hence, for the purposes of making a ruling, I had available to me all of the evidence that might be put to the jury in relation to self-defence. I ruled that it was not an issue that should be left to the jury. I reserved my reasons. These are my reasons.
Evidence relevant to self-defence
The evidence established that the accused was a former commander or president of the Comanchero outlaw motorcycle gang. In February or March 2018 there were disputes within that gang. Those internal disputes led to the accused ceasing to be a member of the gang. At about that time, he publicly disclosed that he had burnt his “colours”, the leather jacket and insignia associated with being a member of the gang. Within the culture of the gang, that step was taken to be a provocative one.
On the evening of 17 March 2018 intruders came to his home. There was a fight. He received a gunshot wound to his scalp. Neither he nor his fiancée reported this to police.
On 6 June 2018 police attended his home and had a discussion with him relating to the recent arrest of Alexander Miller, a senior member of the Comancheros. Mr Miller had been arrested in possession of a firearm the previous day. Prior to his arrest, Mr Miller had been observed by police driving on the street where the accused lived. The evidence of police was that when these circumstances were raised by them, the accused had responded by saying that he was not concerned and “if they returned they won’t leave alive.” The accused’s fiancée gave, in answer to some very leading questions, evidence that in fact, notwithstanding his apparent bravado, he was terrified at the time. This was inconsistent with the evidence of Senior Constable Ohlmus relevant to the accused’s state of mind at the time, but it would be a matter for the jury to decide which to accept.
On 28 June 2018 a number of men, whose appearances were concealed, entered onto the accused’s property at about 10:35pm. They doused his three cars with an accelerant. They fired shots through the rear glass sliding door of the house. The accused, who had just got out of the shower and was naked, returned fire using a rifle. There was an exchange of fire, the attackers having a pistol and a shotgun, and the accused having a rifle. After a number of shots were fired, the intruders left the premises via the carport, igniting the accelerant and hence the vehicles as they left. The accused ran shouting from the premises in the direction that the intruders had left but retreated from the flames and went back into the house.
Following the incident, the fire brigade, police and an ambulance attended the premises. Police established a crime scene. The crime scene extended down the street as shots had been fired into the house where the accused’s parents lived, which was on the same street. Police secured the crime scene at approximately 10:57pm on 28 June and later obtained a warrant to permit a search of the premises.
A police officer, Senior Constable Clark, spoke to the accused who was present. He was introduced to the accused, who was bleeding from his hand and was agitated. The officer had a conversation with him on the curtilage of the property. The accused gave his version of what had occurred. He was then referred to the ambulance service.
Later, they spoke again inside the house. Senior Constable Clark observed that there was massive damage to the television screen. The accused said he wanted to review the CCTV footage and would deliver it to the police later. Senior Constable Clark told the accused that was not going to happen. The accused told him that he thought the incident had occurred because he had left the Comancheros.
Senior Constable Clark spoke to the accused for a third time outside the front door. The accused asked to speak to Senior Constable Clark in private. The accused said that he had not told him everything and that he was worried about what would be shown in the CCTV footage. Senior Constable Clark asked him what really happened. The accused said “I knew they were trying to kill me so I had a gun.” He said that he shot back at them. He was asked whether or not he had hit anyone and the accused said “I don’t think so”. Senior Constable Clark asked him where the gun was. The accused said “I got rid of it”. Senior Constable Clark asked him where, and he said “I’m not going to say”.
The accused asked whether he was going to get charged in relation to the gun. The accused said “They were going to kill me and I was just protecting my family”. He was referred again to the ambulance shortly after.
The accused’s fiancée was offered the opportunity to be in attendance during the search but chose to remain in a police vehicle while the search continued. Senior Constable Clark agreed with the proposition that she was terrified by the attack.
The evidence established that bullets fired into the house had entered the bedroom where she was when the attack occurred.
The warrant remained in force on 29 and 30 June. At some time on 30 June the accused attended the premises but spoke to police in the backyard. He did not enter the house or a shed on the property while the search was being conducted. Police located a rifle in the roof cavity above an access hole in the laundry at about 12:00pm on 30 June 2018 and that was seized at approximately 4:55pm the same day. Also on that day another officer located a pair of knuckledusters in a metal shed on the property. The knuckledusters were located inside a cupboard, underneath a bench. The cupboard was not locked.
Apparent blood was located on the firearm. That blood was tested for DNA. The evidence was that the outcome of that test provided extremely strong evidence for the proposition that it was the accused’s blood on the weapon, rather than some other random member of the Australian population. Similarly, a mixed profile was located on the knuckledusters. The results of the DNA analysis provided extremely strong support for the proposition that one of the contributors to that profile was the accused.
The accused’s fiancée gave evidence that on 1 August 2018 she was sent a series of photographs. One of the photographs appeared to be an Instagram story highlight. On receiving those photographs, the accused’s fiancée looked at the Instagram account of a Comanchero member. She watched a story highlight uploaded by the account which was from shortly after 28 June 2018, and which showed a video of the Comanchero member pulling a gun out of the glovebox of a car. The caption on the video said words to the effect “Celebrating our victory. We got him”. The accused’s fiancée gave evidence that she understood this be a reference to the 28 June attack.
There was no evidence of any planned future attack on the accused, his house or his family. Plainly enough, there was no attack in progress on 30 June 2018 in the period prior to the items being located by the police. It was this period on 30 June 2018 to which both charges of possession related.
Do the Firearms Act and Prohibited Weapons Act exclude s 42 of the Criminal Code?
Section 42 of the Criminal Code provides:
42Self-defence
(1)A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.
(2)A person carries out conduct in self-defence only if—
(a)the person believes the conduct is necessary—
(i) to defend himself or herself or someone else; or
(ii) to prevent or end the unlawful imprisonment of himself or herself or someone else; or
(iii) to protect property from unlawful appropriation, destruction, damage or interference; or
(iv) to prevent criminal trespass to land or premises; or
(v) to remove from land or premises a person committing criminal trespass; and
(b)the conduct is a reasonable response in the circumstances as the person perceives them.
(3)However, the person does not carry out conduct in self-defence if—
(a)the person uses force that involves the intentional infliction of death or serious harm—
(i) to protect property; or
(ii) to prevent criminal trespass; or
(iii) to remove a person committing criminal trespass; or
(b)the person is responding to lawful conduct that the person knows is lawful.
(4)Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.
Section 43 of the Firearms Act provides:
43Offence—unauthorised possession or use of firearms other than prohibited firearms
(1)A person commits an offence if the person—
(a)possesses or uses—
…
(iii) 1 or 2 firearms; and
(b)is not authorised by a licence or permit to possess or use each of the firearms.
Maximum penalty:
…
(c)for subsection (1) (a) (iii)—imprisonment for 5 years.
The Act provides a scheme of licensing for the possession of firearms. One of the requirements for a licence to be issued is that the person to whom the licence is issued has a “genuine reason” to use or possess the firearm: s 58. Section 61 makes reference to a table which sets out 10 “genuine reasons” that a person might have to possess or use a firearm. Self-defence or personal protection is not one of those reasons. Further, s 62(a) specifically provides that: “An applicant for an adult firearms licence does not have a genuine reason to possess or use a firearm if the applicant intends to possess or use the firearm for … personal protection or the protection of anyone else”.
The Crown also made reference to the principles and objects of the Firearms Act set out in s 5. It submitted that “to be able to rely upon the defence of self-defence in the circumstances of this case would undermine and frustrate the legislative scheme”. Its ultimate submission appeared to be that the terms of the Firearms Act excluded the operation of s 42 of the Criminal Code in relation to a charge alleging unlawful possession of a firearm.
Section 5 of the Prohibited Weapons Acts provides:
5Offence—unauthorised possession or use of prohibited weapons
A person commits an offence if the person—
(a)possesses or uses a prohibited weapon; and
(b)is not authorised by a permit, or otherwise under this Act, to possess or use the weapon.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
The position in relation to the Prohibited Weapons Act charge was somewhat different to that in relation to the Firearms Act charge because there is not the same express prohibition upon granting of a permit under that Act for the purposes of personal protection. Nevertheless, the Crown submitted that s 42 would not be available in relation to such a charge.
I do not accept that there has been any implied partial repeal of s 42 of the Criminal Code or a qualification upon its operation that would preclude it from applying to either a charge of possession of a firearm or the possession of a prohibited weapon. The doctrine of implied repeal operates where a later act is clearly contrary to the provisions of an earlier act. It is necessary to establish that the later provision is not capable of sensible operation if the former provision still stands: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [48]. Undertaking an assessment of whether that is the case must involve close attention to the construction of the provisions in question: Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [18]. In this case, the legislative history of the provisions very clearly indicates that they were intended to operate together. Further, their terms are not so intractably inconsistent as to prevent them being given an harmonious operation.
There has been a long history associated with the progressive application of the provisions of the Criminal Code to offence provisions in other pieces of legislation in the Territory. In the case of the Firearms Act, the provisions of that Act were in generally similar terms prior to the enactment of the Criminal Code. They required a genuine reason for holding a firearms licence and stated that a genuine reason did not include personal protection or the protection of any other person or the protection of property: s 23 in Republication 5. The present s 43 of the Firearms Act was inserted in 2009 as s 16AA (in Republication 16) and was later renumbered as s 43. In those circumstances the Criminal Code applied to the offence since its enactment and the delayed application provision in s 8 of the Criminal Code did not operate. The position is the same in relation to s 5 of the Prohibited Weapons Act. It was substituted in 2008 so that the delayed application provision in s 8 ceased to operate on the provision at that time.
In those circumstances the legislature must be taken to have enacted the offence provisions with knowledge of the application of the provisions of Ch 2 of the Criminal Code to those provisions. In the absence of any express disapplication of any of the provisions of the Criminal Code, there is a very strong presumption that the legislature intended the Code and the offence provisions to operate harmoniously together.
The provisions relating to self-defence excuse what is otherwise unlawful conduct in a limited range of circumstances. For the reasons that I give below, those limitations upon the circumstances in which self-defence is available give it a confined operation in the context of charges alleging unlawful possession. Given that the provisions of Pt 2.3 of the Criminal Code are, by their very nature, provisions which excuse conduct otherwise made unlawful and, given their relatively narrow operation, they are capable of sensible operation in the context of the provisions of the Firearms Act and the Prohibited Weapons Act.
An obvious example of how the provisions in relation to self-defence might excuse conduct that would otherwise be unlawful under the Firearms Act is a circumstance in which a person who was being attacked came into possession of a firearm during the attack in order to defend herself or himself. On the Crown’s submission this would remain an offence and the manner in which a just outcome would be achieved would be through the exercise by police and the Director of the discretion as to whether or not to bring a prosecution for the offence. In my view, reliance upon discretionary decisions such as this would not be necessary as, consistent with the apparent legislative intent, s 42 may operate in order to excuse what would otherwise be unlawful possession. The two pieces of legislation would operate harmoniously together without the need to rely upon discretionary decisions of the executive to achieve a just outcome.
For these reasons I did not accept the argument put by the Crown based upon incompatibility between the statutory provisions.
Whether the evidence required the issue to be left to the jury?
However, the rejection of that argument did not inevitably mean that the issue was one which should be left to the jury. If there was evidence capable of establishing a reasonable possibility that the requirements of s 42 were met, then there is no doubt that the issue would need to be left to the jury to determine. In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, Wilson, Dawson and Toohey JJ said (at 665):
Turning to the evidence in this case, it is necessary to bear in mind that it was entirely for the jury to determine whether the appellant's version of events was true: Lee Chun-Chuen v. The Queen [1963] AC 220, at p 230. 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 Reg. v. Muratovic[1967] Qd R. 15, at p 20, "... 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."
In R v Burgess [2005] NSWCCA 52; 152 A Crim R 100 (Burgess) at [24], Adams J (with whom Hislop J and Newman AJ agreed) said:
It is obvious that, in order to confine cases to the real issues raised by the evidence, it is appropriate for a trial judge to consider whether particular issues should be left to the jury. In principle, this is unarguable. It is also correct, as the appellants submit, that the judge must not intrude into factual matters that are within the jury’s province to determine. However, it is clear that the judge must be able to evaluate the evidence to some extent in order to arrive at the conclusion that there is evidence which is capable of establishing – though, of course, it might not ultimately be accepted as establishing – the elements of a defence such as self-defence. There is no doubt that this is a question of law and not of fact, even though it involves an evaluation of the evidence.
In this case the evidence, taken at its highest, was such that it would not have been open to the jury to conclude that there was a reasonable doubt based upon the matters required to be excluded by the Crown under s 42. Sections 58(2) and 58(6) of the Criminal Code make clear that this is a question of law and hence a matter for the judge to determine.
Limitation on s 42
In my view, s 42 must contain within it, either by reason of the references to “in self‑defence” or, alternatively, by reason of the common law background against which it was enacted, a limitation which requires that the threat being defended against be an immediate one. That is obvious enough when self-defence is an issue raised to excuse what would otherwise be an assault or other crime of physical violence: see the discussion in R v PRFN [2000] NSWCCA 230 (R v PRFN) at [24]-[38]. However, in a case where the section is sought to be deployed in a manner that would excuse possession of an item, that requirement is essential in order to confine self-defence within bounds consistent with its function.
In the present case, there was clear evidence upon which the jury might have relied to support a finding that there was an ongoing potential threat of serious harm. The evidence does not establish that it had abated. However, there was no imminence to it. At the time of possession on 30 June 2018, there was no evidence of any immediate threat to which the accused was responding. The only evidence is that the items were kept in anticipation of the possibility that they might be used at some future time. The requirement for any immediacy of the threat was completely absent. It could not be said that the possession occurred “in” self-defence. The closest which it might come would be to say that the possession was “for the purposes of” self-defence or “in anticipation of it being used in” self-defence.
If the operation of the section is not confined to immediate harm in this way, then the scope of the “defence” of self-defence would be greatly widened. It would not be confined to actions immediately required to defend from an imminent threat of violence. It would have the effect of expanding the defence beyond an immediate and necessary defensive response to violence, so that it instead covered preparations against some future indefinite or possible adverse event.
To hold that s 42 extended so far would be to extend it beyond the accepted scope of self-defence. It would be to greatly expand the scope of otherwise unlawful conduct which was rendered lawful. It would fundamentally alter the function of the finder of fact, requiring it to make not merely an assessment of the reasonableness of an immediate and urgent response to violence but, rather, a broader public policy consideration of the extent to which dispensation with the requirement of statute was “reasonable”.
This case provides an illustration of the consequences that would flow from interpreting s 42 so that it could apply to a non-specific future threat of possible violence. If it did so it would have the potential to render lawful the possession of a firearm for an indefinite period so long as the threat of intra-gang violence remained a real prospect. Similarly, if it was possible for self-defence to extend to preparatory acts relating to some non‑specific but significant threat of future violence, it might also be available to potentially excuse not merely the possession but the unlawful acquisition of a firearm for defensive purposes even though that acquisition was remote from any immediate threat of violence.
If self-defence was available in such circumstances then the second limb of the test in s 42 would require the jury to not merely assess the reasonableness of the physical acts in response to immediate violence, but instead to make assessments of reasonableness, balancing questions of public policy as exemplified in the firearms legislation against the magnitude of the threat faced by the accused and his family and the actions of the accused in not seeking any assistance from police. This is a role which clearly would significantly expand the function of the jury and transform it into a general power to dispense with compliance with the law where the members of the jury consider disobedience to be reasonable.
The requirement for imminence and the fact that the role of the jury may not be extended in this way has been emphasised in a number of cases.
In R v Rogers (1996) 86 A Crim R 542 at 545, Gleeson CJ pointed out that the requirement for imminence was incorporated in the jury directions articulated in Viro v The Queen (1978) 141 CLR 88 at 146-147, insofar as it referred to the accused reasonably believing that an unlawful attack which threatened him with death or serious bodily harm “was being or was about to be made upon him”. His Honour also said:
…the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused’s supposed belief, and the reasonableness of his belief.
Making comments in the context of the defence of necessity, which is closely related to the defence of self-defence, his Honour said (at 546):
The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of the accused person serves some value higher than that implicit in the law which is disobeyed.
This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant’s submission that, consistently with the approach to self-defence taken by the High Court in Zecevic, it is now more appropriate to treat those “requirements”, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.
In my view these remarks are consistent with what I have said about the importance of urgency and immediacy as a technique by which to confine the availability of self‑defence as an issue so that it has a scope which is consistent with an appropriate role for a jury and for the harmonious operation of s 42 with the offence provisions to which it might apply.
In R v PRFN the appellant argued that he believed he and others were under a continuous threat of being sexually assaulted by the deceased and was acting in self‑defence when he killed him. There had been considerable planning for the deceased’s murder. The trial judge refused to leave self-defence to the jury for the reason that the requirement that the threat should be imminent could not be satisfied in the circumstances, even though that was not a threshold test as distinct from being an important factual consideration whether or not the appellant could have believed on reasonable grounds that it was necessary to kill the deceased. In dismissing the appeal Giles JA, with whom other members of the court agreed, said (at [42]) “the appellant was not being attacked or anything like it and, to return to R v Rogers, the critical element of imminence of a threat was lacking”.
The requirement for imminence was considered in some detail in the context of a protest case: Burgess. In that case, the appellants had sought to argue that their actions in painting “No War” on the sails of the Opera House did not constitute the offence of malicious damage because the Crown was obliged to exclude self-defence which was available under s 418 of the Crimes Act1900 (NSW). Section 418 is in relevantly similar terms to s 42 and, like s 42, has its source in the Model Criminal Code: Burgess at [14].
Referring to the decision in R v PRFN, Adams J said at [29]:
Leaving aside the particular significance of imminence in the present context, this decision clearly shows that the trial judge has the power, indeed, the responsibility, to remove self-defence from the jury’s consideration if his or her judgment of the facts is that it is not capable of giving rise to the objective requirement of the defence, despite the accused’s belief that his or her actions were justified. Although this decision concerned the common law and not the provisions of s418, it applies equally, as it seems to me, to the objective requirements of subs418(2).
In my view, the position is the same in relation to s 42, either by reading the provision in the context of the common law requirement of self-defence or, alternatively, by reading into the words “in self-defence” a requirement for immediacy. In Burgess, it appears that the former approach was adopted, treating the requirement for immediacy as a non‑specific overlay upon the terms of the section, having regard to its historical context and legislative purpose. If necessary to more specifically anchor such a requirement in the text it might be done by attaching this requirement to the words “in self-defence” that appear in subss (1) and (2). It is not, in my view, open to simply read the bare text of s 42 divorced from the common law context which proceeded its enactment or the legislative purpose of providing a limited exemption from the operation of the law in circumstances of imminent threat.
In the present case there was evidence which could have supported a finding that there was a generalised threat of future significant violence, the timing of which could not be determined. In those circumstances, having regard to the requirement for immediacy of the threat to justify the conduct, it would not, in my view, have been reasonably open to a jury to find that the accused had a belief that his possession was “in self‑defence”, rather than being for the purpose of future defence or in preparation for an act in defence. Further, having regard to the absence of any immediacy of a threat, it would not have been open for a jury, properly instructed, to conclude that the conduct was reasonable within the scope of s 42(2)(b). Therefore, on the evidence, there was not a reasonable possibility that the requirements of s 42 would be satisfied.
For those reasons I ruled that the evidence does not disclose any matter that justified leaving to the jury the matter of self-defence in relation to the possession of the firearm or the knuckledusters the subject of counts 1 and 2.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24 September 2020 |
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