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Gallagher and Corbell say it’s ok to use deadly force in self defence

By bundah - 5 August 2013 22

I came across a recent judgement by Justice Refshauge in a case where the accused,Joseph Shelvin was on trial for recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm on Wayne Maloney. Shelvin was acquitted on the basis that the Crown had not disproved self-defence beyond reasonable doubt.

The incident occurred on 24 August 2008 at the Holy Grail Kingston where Shelvin was drinking with friends and was approached by Maloney who placed his arms around him in a friendly gesture hugging him.One of Shelvin’s friends,Damon Smith, reacted to the situation by grabbing Maloney by the back of his jacket and forcefully pulled Maloney and inadvertently Shelvin onto the floor.Shelvin then got up and assisted Maloney to his feet.Maloney then remonstrated in a ostensibly non-threatening manner with his hands at waist height to the front and side questioning why Smith was so aggressive. Shelvin then responded by forcefully pushing Maloney in the chest and immediately thereafter punched Maloney in the head with substantial force. Maloney fell backwards and his head impacted with the tiled floor causing significant injury which later required the insertion of a metal plate in his skull.

The decision by Refshauge to find Shelvin not guilty of the charges prompted me to email Attorney General Corbell drawing to his attention that had Maloney died as a result of the assault then based on Refshauge’s reasoning Shelvin would have been entitled to be acquitted of a potential murder charge. I referred to the decisions in James Cook, Mauricio Rao, Russell Field and Cameron Anderson’s killer which had similarities to case studies where excessive self-defence was judged to have occurred.Corbell’s response was to claim that if the conduct of a defendant was not a reasonable response to the circumstances they found themselves in then they may be found guilty of murder. My response to Corbell was to point to the High Court decision in Zecevic(1987) which Chief Justice Higgins applied in his judgements in Rao,Field and Anderson’s killer.I then received a response from Chief Minister Gallagher who said that it was her understanding that the introduction of excessive self defence would not have addressed my concerns and that the ACT was not considering adopting the partial defence to murder at this time.

Obviously, I strongly disagree and here’s why: In the High Court decision in Zecevic(1987) which became common law in self defence, the majority by 5 to 2 said that 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 they did. If they had that belief and there were reasonable grounds for it then they were entitled to an acquittal. Further to this they also indicated that the issue of self defence should be approached in a practical manner and 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.The new formulation effectively abolished the partial defence of excessive self defence and it’s worth noting that Deane J strongly dissented in Zecevic believing that the abolition of the partial defence was unjust and that it was wrong to retrospectively abolish a defence. The backflip from the previous decision in Viro(1978), which was considered too complicated, meant that Higgins and Crispin,in applying the new formulation, could justifiably acquit those I refer to above. The simple reality is that the Crown didn’t stand a chance of disproving self defence given the new formulation.

In 1997 South Australia amended their self defence laws to include excessive self defence. In 2002 NSW also reintroduced excessive self defence. The provision is as follows: if a person uses force that involves the infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary to defend themselves then they are guilty of manslaughter.Victoria introduced defensive homicide in 2005,which while similar to excessive self defence,was introduced to reduce the offence of murder to manslaughter in cases where women were subjected to continued physical abuse from their partners who they killed fearing for their lives. Unfortunately since it was introduced only two of the 19 convictions for defensive homicide have involved female defendants which has prompted the AG to introduce amendments to the legislation.In 2008 Western Australia removed provocation as a partial defence and introduced excessive self defence.

For the benefit of Gallagher and Corbell I will briefly detail what occurred in R v Cook and why he was IMO guilty of excessive self defence. I should firstly point out that Cook was arraigned before Gray J on a single count of murder and entered a plea of manslaughter which the Crown, rightfully, accepted. The proceedings were listed before Higgins for sentencing who rejected the plea finding the facts didn’t support manslaughter ie. he realised that under the new formulation Cook would be acquitted on the basis of self defence so he disqualified himself and handed the baton to Crispin.

The brief facts are as follows: In December 2003 James Cook who lived opposite Daniel Beck at the Southside Caravan Park socialised with Beck during which time they consumed a significant amount of alcohol. Shortly after their drinking session Beck provoked Cook into a physical confrontation during which time Cook got the upper hand while they were wrestling and then strangled Beck to death. Cook actually said that he continued to choke Beck for almost 30 seconds after Beck went limp. There is absolutely no doubt in my mind that while it’s clear that Cook was defending himself he simply took it too far and his response was excessive. Unsurprisingly Crispin determined that the Crown did not disprove that he acted in self defence, beyond reasonable doubt, so he was acquitted.

The question, therefore, that the Chief Minister and the Attorney General need to ask themselves is whether they still consider excessive self defence unnecessary given the abovementioned circumstances and the potential for this type of scenario to rear its ugly head, yet again. While anyone accused of murder would now be tried by a judge and jury if the accused claimed that he or she acted in self defence the jury would still be bound to consider its verdict according to the principles in the Zecevic formulation.

There is, of course, the other issue whereby it has taken almost 5 years to get a decision in the Shevlin case. So I think it’s appropriate to leave you with the rather extraordinary language used by recently retired High Court Justice Dyson Heydon “A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

Rather damning, don’t you think Attorney General?

What’s Your opinion?

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22 Responses to
Gallagher and Corbell say it’s ok to use deadly force in self defence
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Lookout Smithers 10:11 am 08 Aug 13

bundah said :


Let me clarify the situation in relation to Anderson’s killer. In my previous self defence article back in June 2012 I specifically said that I was not prepared to go into detail re the stabbing death of Cameron Anderson unless I was able to obtain her trial evidence transcript. My attempt to obtain the info was denied on the basis that a suppression order was placed on the file.

As I previously indicated this case was by far the most perplexing for a number of reasons. Shortly after the alleged murder I spoke to a friend of mine, a police officer, who told me in no uncertain terms that SC was not of sound mind and that that the information she provided to the police whilst interviewed lacked credibility. The main reason I didn’t want to comment until obtaining the evidence transcript was that she made a number of claims in evidence which just didn’t add up eg. she claimed that Anderson took her down from behind and entered her almost immediately which just isn’t feasible. Firstly both were quite intoxicated and were not too dissimilar in size and strength ie. Anderson was approx. 65-70 kgs and SC around 60 kgs and apparently a bit of a tomboy. She was wearing jeans that night and ambulance officers who arrived later said she wasn’t wearing her underpants even though she had put her jeans back on.

She also claimed that Anderson superficially stabbed her in the leg which seems unlikely given she had the knife and was doing the stabbing. Whilst SC was stabbing Anderson he apparently responded by saying “what are you doing”? Yes there was evidence of forced sexual intercourse but that does not conclusively prove that it was non consensual. She may have initially been willing but changed her mind due to the discomfort and then decided to lash out.

The obvious fact is that none of us were there and we only have her word as to what occurred so I am merely speculating as to what may have occurred. What is undeniable is that the law clearly states that using deadly force in self defence is only permissible if one reasonably fears for one’s life or serious bodily harm due to an act perpetrated against them. Given that they were getting on rather amicably at Filthy’s there is no evidence that Anderson had any intention of seriously injuring or killing SC.

As to why i’m focused on the need for excessive self defence to be introduced, simple really, it’s called justice and that means being held accountable for one’s actions rather than allowing peeps to get off scot-free.

“”Shortly after the alleged murder I spoke to a friend of mine, a police officer, who told me in no uncertain terms that SC was not of sound mind and that that the information she provided to the police whilst interviewed lacked credibility””

Police officers are not any kind of authority to judge mental function, They are also by nature not too bright so I do believe that your police officer pal gave you hearsay information and if the outcome were a murder rap for the accused, then between you and your dip shit mate might have got her off anyway. While I am here amazed a annoyed at how you make your own laws up with different words that completely alter their meaning context. Let me point out a few obvious ones from grazing over your dribble rants. I bet you believe your own lies.Thats what I get from reading this. Ok, so you wrote here :
“What is undeniable is that the law clearly states that using deadly force in self defence is only permissible if one reasonably fears for one’s life or serious bodily harm due to an act perpetrated against them” What the fuck? Can you read? Not only is it deniable, its completely nonsensical. That is because you concocted it in your own words, I know not why. It gets better folks. Bundah you have written ” yes there was evidence of forced sexual intercourse” (Judges words : the evidence taken as a whole supports the conclusion that it was the deceased who forced sexual intercourse upon the accused”) What is it about the term”forced sexual intercourse” that you see as being consensual sex? The evidence supports forced sexual intercourse on the accused. Otherwise known as rape. Bundah I have to ask you seriously here. Do you have the view that rape is also the same as consensual sex? That is exactly what you have written “Yes there was evidence of forced sexual intercourse but that does not conclusively prove that it was non consensual”??? Im nearly wetting myself here. Now you have written your baseless and speculative ” She may have initially been willing but changed her mind due to the discomfort and then decided to lash out” Yes that might have happend but nothing in the judgement suggest that anything like that occurred so lets assume that your theory is but a pile of hog shit. I mean where do you get off making shit up about something so serious and crushing for many? Seriously mate, you are going to get yourself in real trouble pulling this kinda shit.

Lookout Smithers 8:44 am 08 Aug 13

Nope , not quite Richard. The question here isn’t about proportion at all. It is about how you don’t comprehend things like crim law 101 in a way that is useful to you. By that I mean you either interpret things to satisfy your own mind or you simply just dont read them, miss sentences etc.

When you state things like “there is no evidence that Maloney had any intention of swinging punches”. You must think of the circumstances as if you were that person briefly or were present at the events. What you think was evidence of anything has fuck all to do with shit. End of story. Why Sensei? Nevermind. Because a person isnt crimianlly responsible for an offence when its in self-defence to defend himself or herself or another person if they believe its warranted and the action is a reasonable response in the circumstances as….. HE OR SHE PERCEIVES THEM!!! Not as how you perceive them afterwards having read about it in the canberra times.

Your take on it is of no consequence. Period. Now when an accused raises a defence like self defence , and when all considered its a REASONABLE possibility of being carried out in self defence, the onus is on the crown. Accused does not have to say a word.
Im pretty sure I know what you think “proportional response’ means but you dont know when and to what it applies.

The accused doesn’t have to believe that his life or someone elses life is at risk to defend themselves. The guy felt he was about to be clobbered and got in first. Holy grail in kingston full of drunks wanting to act out is a risk enough to be defensive. Even without hearing everything I would say its a believable account of things. The outcome here is nothing new and all too senseless. That doesn’t make it that someone committed a crime. Why you bring murder into things I have no idea. If you can’t see that there are no two cases of murder that are the same, Im sure your mind is closed good n proper. And given that you can’t see how far off the mark you are, you must be at least able to know lying to yourself is not possible. If there was any validity to your views on crime and punishment, you wouldn’t feel compelled to tell the Riotact with a bunch of links to codes you The reason Katy G told you was correct and excessive self defence wouldn’t have been raised simply and perhaps obviously because one punch thrown in the approaching threat from another isn’t what any reasonable person would class as being excessive.
If you are someone who has lost someone to homicide or from a tragic then you should just be upset and pissed off loudly instead of embarking on an ego driven crusade to effect change as you would like it. You are exposing yourself with no real understanding that laws are designed to give the best consequences. And the best consequences for all people. If you want to better understand criminal cases then go and study law FFS.

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