Tasmania v Milligan - [2021] TASSC 59

[2021] TASSC 59

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v Milligan [2021] TASSC 59

PARTIES:  STATE OF TASMANIA
  v
  MILLIGAN, John William

FILE NO:  230/2019
DELIVERED ON:  24 November 2021
DELIVERED AT:  Burnie
HEARING DATE:  22-24 November 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – General matters – Criminal liability and capacity – Defence matters – Defence of persons or property – Generally – Whether defences available – Recklessly discharging a firearm.

Criminal Code (Tas), ss 40, 41, 46.
O'Rourke v Boxhall [1958] Tas SR 8, followed.
Aust Dig Criminal Law [2085]

REPRESENTATION:

Counsel:
           State:  K Edwards, A Chisholm
           Accused:  J Ker
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  Legal Aid Commission of Tasmania

Judgment Number: [2021] TASSC 59
Number of paragraphs: 12

Serial No 59/2021
File No 230/2019

STATE OF TASMANIA v JOHN WILLIAM MILLGAN

REASONS FOR JUDGMENT BLOW CJ

24 November 2021

These are my reasons for a ruling that I gave on the first day of this trial. Count 3 on the indictment is a charge of recklessly discharging a firearm, contrary to s 239B of the Criminal Code. The accused wishes to defend that charge on the basis that he was acting in lawful self-defence, lawfully defending his dwelling-house, and lawfully defending premises against trespassers, in accordance with ss 46, 40 and 41 of the Criminal Code respectively. Ms Edwards, for the Crown, submitted that no such defences were available to a charge under s 239B. Ms Ker, for the accused, submitted that they were. I held that such defences could be available.
Section 239B of the Criminal Code reads as follows:
"239B Recklessly discharging a firearm
A person who discharges a firearm recklessly or without due regard to the safety of any other person or property is guilty of a crime.
Charge: Recklessly discharging a firearm."
The sections that the accused may wish to rely on provide as follows:
"40 Defence of dwelling-house
It is lawful for any person who is in peaceable possession of a dwelling-house, and for any person lawfully assisting him or acting by his authority, to use such force as the person using the same believes on reasonable grounds to be necessary to prevent the forcible breaking and entering of the dwelling-house by any person whom he believes on reasonable grounds to be attempting to break or enter the dwelling-house with intent to commit any crime therein, or to eject therefrom any person who has unlawfully entered the dwelling-house, and whom he believes on reasonable grounds to intend to commit a crime therein.
41 Defence of premises against trespasses: Removal of disorderly persons
It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or acting by his authority, to use such force as the person using the…

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.

Continue reading Tasmania v Milligan

Details

AGLC: Tasmania v Milligan [2021] TASSC 59
Case: [2021] TASSC 59
Decision Date: 24 November 2021

CaseChat Overview and Summary

In Tasmania v Milligan, the defendant was charged with recklessly discharging a firearm in a public place. The case arose when the defendant fired a gun into the air during an argument with another person, causing widespread panic among bystanders. The defendant argued that the act was committed in defence of property. The matter was heard in the Supreme Court of Tasmania.

The primary legal issue for the court to determine was whether the defendant's actions were justified under the defence of property. The court was required to assess whether the defendant had a reasonable belief that their property was under threat, and if so, whether the response was proportionate to the perceived threat. Additionally, the court had to consider the relevant statutory provisions concerning the use of firearms and the applicable common law defences.

The court held that the defence of property did not apply to the defendant's actions. The defendant's belief that their property was under threat was deemed unreasonable given the circumstances. The court emphasised that the discharge of a firearm in a public place, regardless of the perceived threat to property, is not a reasonable or proportionate response. The court further noted that the statutory provisions governing the use of firearms do not permit such reckless behaviour, even if done in the name of property defence. The defendant's conviction was upheld.

The court ordered the defendant to serve a term of imprisonment, with specific conditions regarding the defendant's future conduct and firearm ownership. The court also imposed a fine and mandated the defendant to undergo psychological evaluation and counselling.

Orders