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Murder/manslaughter and self-defence in the ACT

bundah 21 June 2012 88

As some of you may be aware there was until recently a significant period in the ACT where those who had been charged with murder/manslaughter were not being convicted.The ACT Chief Justice Terrence Higgins was the trial judge in three such cases in recent years and all were acquitted on the basis of self-defence ie. Rao,Field and the 17 year old female involved in the Anderson murder.Many like myself were astounded at the decisions and believed Higgins simply got it wrong.

I researched the High Court direction in Zecevic (1987) which Higgins continually referred to in his judgements which i found complex, repetitive and disappointing given the ramifications.

The circumstances that brought on the High Court decision are as follows; the victim rented a unit from the defendant (Zecevic) who became increasingly angry with the tenant who kept leaving the security gates into the courtyard unlocked.After a heated exchange the defendant claimed he was stabbed, ran to his unit got his shotgun then returned to the courtyard and shot and killed the tenant.After reading Judge Vincent’s judgement one can understand why self-defence was not considered relevant.

http://vsc.sirsidynix.net.au/Judgments/Crime/Zecev.pdf

So in Zecevic the law of self-defence was restated as follows: “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 he did.If he had that belief and there were reasonable grounds for it,or if the jury is left in reasonable doubt about the matter,then he is entitled to an acquittal.” The High Court also stated that “excessive force in self-defence” was no longer good law in Australia.They determined that the Viro direction on excessive force was proving extremely difficult for judges to direct the jury in a comprehensible manner.

The consequences of these directions are such that it has effectively made it extremely difficult for the Crown to prove that the murders committed by the persons named above were not in self-defence so that has made it relatively easy for Higgins to acquit. I have read the judgements in all of these cases and i am confident if excessive force in self-defence had been reinstated ,as it is now in SA,VIC and NSW ,then all three would have been found guilty of manslaughter by a jury at least.

So in closing why has Attorney-General Corbell done absolutely nothing,as far as i’m aware, to rectify this anamoly. It’s obviously too late for those already murdered but unless he acts immediately there is unlikely to be justice for future victims.

[ED – This post was provoked by the recent tortuous reasoning of the Court of Appeals on the horrible killing of Cameron Anderson in Telopea Park. The Canberra Times has the skinny.]


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Murder/manslaughter and self-defence in the ACT
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Lookout Smithers 4:42 pm 26 Jun 12

bundah said :

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Then take your quotes from the transcripts of the trial and not from the judgements. It just contradicts anything you say about the findings. Unless for some reason you are an authority on the matter? In which case I stand corrected.

Are you suggesting that it is not appropriate to form an opinion from the information provided in the judgement in cases where the evidence clearly points to excessive force in self-defence?? You might be keen to fork out substantial sums of money for court transcripts and wade through piles of paper when it is clearly unnecessary but i am not!
There is no requirement for anyone to be an authority on a subject before they comment in this forum and nor should there be.You are free to express your opinion i just don’t happen to agree with it…end of story!

Not really inappropriate so much as stupid. If the judgement you take information from contradicts what you claim, why would you expect anyone to look at your argument seriously? You obviously regard it an issue with a degree of passion given you went to the trouble of needlessly creating a thread around a known knee jerk rattler. That being the case I then think you would want to be heard and understood, an outcome beyond your reach with the tact in place currently. Form what ever opinion you want but until you start to understand what information comes from where in the courts and a better understanding of courts and prodcedure, you’ll perhaps be mislead to make unfounded claims using quotes from a judgement that already contradicts you. A fruitless endevour to say the least. And yes of course it is inappropriate to infer the above because you have no evidence to back support it. The evidence you have offered is from a case where the judgement reads to the contrary? Of course you are entitled to an opinion, but where posting links to courts and combined with your misguided findings, you are not entitled to an opinion either as it shows no respect for logic.

Never heard so much rubbish you have turned stupid into an art form.Go away you are boring me with your nonsense!

That is probably the only thing you have said with any truth to it. Stick to these valid claims and issues and you’ll never have to quote a judgement that contradicts you. I shall be away now.

dundle 4:42 pm 26 Jun 12

cleo said :

What everyone needs to do is read the court transcript of the guy who shot 2 guys, and the girl who knifed the chef, the judge can only go on evidence presented to him, yes I’ve heard that the female has a history of mental problems, but they can’t bring it up in court, it has nothing to do with the case, I’m not to sure if the female was examined straight away, I thought she left the scene of the crime,so no evidence that she was raped, and she left him to die.

Did you read the judgment? There was very significant evidence of rape. I think she did leave him (probably because he just raped her?) but she did get a friend to call the police to say what had happened. What do mental problems mean? One in five Australians have been diagnosed with a mental illness. Does that mean those people shouldn’t be able to defend themselves if they get attacked?

This thread is full of useless speculations from people who are mostly going from gossip or inaccurate media reports. Even those who are looking at judgments haven’t seen the entire trial, including evidence and witness statements, presumably they don’t have legal training either. So you aren’t going to know everything. I’m all for criticism of the Courts but at least make it educated and constructive.

bundah 2:30 pm 26 Jun 12

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Then take your quotes from the transcripts of the trial and not from the judgements. It just contradicts anything you say about the findings. Unless for some reason you are an authority on the matter? In which case I stand corrected.

Are you suggesting that it is not appropriate to form an opinion from the information provided in the judgement in cases where the evidence clearly points to excessive force in self-defence?? You might be keen to fork out substantial sums of money for court transcripts and wade through piles of paper when it is clearly unnecessary but i am not!
There is no requirement for anyone to be an authority on a subject before they comment in this forum and nor should there be.You are free to express your opinion i just don’t happen to agree with it…end of story!

Not really inappropriate so much as stupid. If the judgement you take information from contradicts what you claim, why would you expect anyone to look at your argument seriously? You obviously regard it an issue with a degree of passion given you went to the trouble of needlessly creating a thread around a known knee jerk rattler. That being the case I then think you would want to be heard and understood, an outcome beyond your reach with the tact in place currently. Form what ever opinion you want but until you start to understand what information comes from where in the courts and a better understanding of courts and prodcedure, you’ll perhaps be mislead to make unfounded claims using quotes from a judgement that already contradicts you. A fruitless endevour to say the least. And yes of course it is inappropriate to infer the above because you have no evidence to back support it. The evidence you have offered is from a case where the judgement reads to the contrary? Of course you are entitled to an opinion, but where posting links to courts and combined with your misguided findings, you are not entitled to an opinion either as it shows no respect for logic.

Never heard so much rubbish you have turned stupid into an art form.Go away you are boring me with your nonsense!

Lookout Smithers 11:44 am 26 Jun 12

HenryBG said :

Lookout Smithers said :

Suffice to say that just and fair trials in the ACT are more probable than not given the scrutiny courts are under in a small space.

It’s a small pond full of tadpoles.

As far as “just and fair” trials go – remind us how many years David “Convenient Nutter” Eastman has been behind bars? Can you summarise precisely what evidence was used to tie him to the crime?

Good question. Not read too much on that case. I don’t think I would like to either given the size of it. There would be some in there somewhere, whether or not it was fabricated is a different story. Look up the case of Andrew Mallard and a few others in WA. It provides a bit of insight into this issue.

Lookout Smithers 11:40 am 26 Jun 12

bundah said :

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Then take your quotes from the transcripts of the trial and not from the judgements. It just contradicts anything you say about the findings. Unless for some reason you are an authority on the matter? In which case I stand corrected.

Are you suggesting that it is not appropriate to form an opinion from the information provided in the judgement in cases where the evidence clearly points to excessive force in self-defence?? You might be keen to fork out substantial sums of money for court transcripts and wade through piles of paper when it is clearly unnecessary but i am not!
There is no requirement for anyone to be an authority on a subject before they comment in this forum and nor should there be.You are free to express your opinion i just don’t happen to agree with it…end of story!

Not really inappropriate so much as stupid. If the judgement you take information from contradicts what you claim, why would you expect anyone to look at your argument seriously? You obviously regard it an issue with a degree of passion given you went to the trouble of needlessly creating a thread around a known knee jerk rattler. That being the case I then think you would want to be heard and understood, an outcome beyond your reach with the tact in place currently. Form what ever opinion you want but until you start to understand what information comes from where in the courts and a better understanding of courts and prodcedure, you’ll perhaps be mislead to make unfounded claims using quotes from a judgement that already contradicts you. A fruitless endevour to say the least. And yes of course it is inappropriate to infer the above because you have no evidence to back support it. The evidence you have offered is from a case where the judgement reads to the contrary? Of course you are entitled to an opinion, but where posting links to courts and combined with your misguided findings, you are not entitled to an opinion either as it shows no respect for logic.

HenryBG 11:35 am 26 Jun 12

DrKoresh said :

Self-defence can only be claimed if you are in reasonable fear for your life or the life of another person, can it not?

Cameron Anderson’s killer can’t possibly have demonstrated she held any such fear, so, no.

DrKoresh 11:23 am 26 Jun 12

Self-defence can only be claimed if you are in reasonable fear for your life or the life of another person, can it not? And if you were in fear for your life from an aggressive individual then lethal force is not excessive, because it’s kill or be killed, do you follow?

So what’s this hard-on you have about excessive force used in self-defence? What do you mean by that? And how much force do you think is reasonable?

bundah 10:23 am 26 Jun 12

Lookout Smithers said :

bundah said :

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Then take your quotes from the transcripts of the trial and not from the judgements. It just contradicts anything you say about the findings. Unless for some reason you are an authority on the matter? In which case I stand corrected.

Are you suggesting that it is not appropriate to form an opinion from the information provided in the judgement in cases where the evidence clearly points to excessive force in self-defence?? You might be keen to fork out substantial sums of money for court transcripts and wade through piles of paper when it is clearly unnecessary but i am not!
There is no requirement for anyone to be an authority on a subject before they comment in this forum and nor should there be.You are free to express your opinion i just don’t happen to agree with it…end of story!

HenryBG 12:49 am 26 Jun 12

Lookout Smithers said :

Suffice to say that just and fair trials in the ACT are more probable than not given the scrutiny courts are under in a small space.

It’s a small pond full of tadpoles.

As far as “just and fair” trials go – remind us how many years David “Convenient Nutter” Eastman has been behind bars? Can you summarise precisely what evidence was used to tie him to the crime?

Lookout Smithers 12:07 am 26 Jun 12

bundah said :

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Then take your quotes from the transcripts of the trial and not from the judgements. It just contradicts anything you say about the findings. Unless for some reason you are an authority on the matter? In which case I stand corrected.

Lookout Smithers 12:03 am 26 Jun 12

banco said :

Lookout Smithers said :

bundah said :

mareva said :

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

Yes i’ll take a jury over Higgins everytime but the objective of the article was to highlight my belief that excessive force in self-defence should be reinstated to get the best possible outcome in cases where self-defence is raised. Until then the status quo remains!

Clearly you lack insight into this area. By the tone of your comment, you assume that a jury as directed by a judge, would be more likely to favour one side or the other in reaching an outcome? Or that a judge alone would be doing the same? Firstly, that is almost impossible. Additionally, under the courts general powers, Judges can overule certain things. There isn’t a finding that a jury could reach that a judge wouldn’t. Judge alone trials have their place. .

Noone is saying anyone is judicially corrupt but to pretend that Judges are like widgets and you can just swap them out and get the same result is rediculous. If that was the case Kirby and Callinan would have been on the same side a lot more often. They are not secular saints. More like bureaucrats in wigs.

Ask a defence lawyer if they think that the identity of the judge can make a difference to the outcome of a trial. It’s hardly a coincidence that prior to the recent law changes the ACT had very high levels of defendants opting for judge only trials.

I am well aware of the Judge and Magistrate shopping that takes place in many courts around the country. I think that this is more relavant where there is a belief that certain values are synonimous with certain judges. Though I think it is more relavant to magistrates than judges due to the odds shopping in the supreme court. I take your point and I agree with you there. However there are laws that cannot be disregarded by Judges and magistrates regarding legal process. Not without the greater legal community being none the wiser or seemingly indifferent. These higher profile cases are monitored extremely closely by legal groups as well as the community. Suffice to say that just and fair trials in the ACT are more probable than not given the scrutiny courts are under in a small space. I think that the question that should be asked here is if it is possible justice in the ACT is more efficient and fair because of this?

banco 11:34 pm 25 Jun 12

Lookout Smithers said :

bundah said :

mareva said :

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

Yes i’ll take a jury over Higgins everytime but the objective of the article was to highlight my belief that excessive force in self-defence should be reinstated to get the best possible outcome in cases where self-defence is raised. Until then the status quo remains!

Clearly you lack insight into this area. By the tone of your comment, you assume that a jury as directed by a judge, would be more likely to favour one side or the other in reaching an outcome? Or that a judge alone would be doing the same? Firstly, that is almost impossible. Additionally, under the courts general powers, Judges can overule certain things. There isn’t a finding that a jury could reach that a judge wouldn’t. Judge alone trials have their place. .

Noone is saying anyone is judicially corrupt but to pretend that Judges are like widgets and you can just swap them out and get the same result is rediculous. If that was the case Kirby and Callinan would have been on the same side a lot more often. They are not secular saints. More like bureaucrats in wigs.

Ask a defence lawyer if they think that the identity of the judge can make a difference to the outcome of a trial. It’s hardly a coincidence that prior to the recent law changes the ACT had very high levels of defendants opting for judge only trials.

bundah 11:05 pm 25 Jun 12

Lookout Smithers said :

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

Quite the contrary i have a clear understanding of what has transpired under his lordships reign much to my chagrin.Let’s just say we agree to disagree and just leave it at that!

Lookout Smithers 8:28 pm 25 Jun 12

bundah said :

mareva said :

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

Yes i’ll take a jury over Higgins everytime but the objective of the article was to highlight my belief that excessive force in self-defence should be reinstated to get the best possible outcome in cases where self-defence is raised. Until then the status quo remains!

Clearly you lack insight into this area. By the tone of your comment, you assume that a jury as directed by a judge, would be more likely to favour one side or the other in reaching an outcome? Or that a judge alone would be doing the same? Firstly, that is almost impossible. Additionally, under the courts general powers, Judges can overule certain things. There isn’t a finding that a jury could reach that a judge wouldn’t. Judge alone trials have their place. Apart from that, your assertion that Higgins is somehow coming to findings that favor a particular side is without merit or any stats supporting it. It is easy to look at one area of criminal law in the ACT and make inferences, Certainly it would draw attention. But you cannot look it that as being relevant to one judge, currently serving, as it doesn’t look at Justice’s legal career overall spanning three decades. How about looking at the other services and merits Higgins holds and if you still come to the same ridiculous idea that his honour is judicially corrupt, (not got it wrong ) , which is what your claim is, then you refuse to it with all the facts. Justice can be hard to stomach at times, unbarable even. But it doesn’t mean that it was unlawfully found or a personal value based finding. That is justice.

Lookout Smithers 7:44 pm 25 Jun 12

bundah said :

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

I hardly think that is a fair call, or a wise one. You seem to have a distorted understanding of how the law functions and what the role of the judicial members are. You still cannot see the obvious problem with quoting extracts from a judgement that rules against the finding you claim should have provailed? You are in affect just giving your opinion.

bundah 7:37 pm 24 Jun 12

mareva said :

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

Yes i’ll take a jury over Higgins everytime but the objective of the article was to highlight my belief that excessive force in self-defence should be reinstated to get the best possible outcome in cases where self-defence is raised. Until then the status quo remains!

banco 6:49 pm 24 Jun 12

mareva said :

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

That law could fairly be called Higgins law.

He was/is too much of a leftwing luvvie even for the ACT.

mareva 4:44 pm 24 Jun 12

OK the Rao trial is now happening all over again years later on an internet forum, apparently….

OP – it doesn’t much matter what Higgins spent years quoting in acquitting accused murderers. Higgins will not be the trial judge in any murder trial perhaps ever again. Murder trials now proceed before a jury. This was made mandatory last year.

DrKoresh 11:50 am 24 Jun 12

Slumlord said :

Thanks for posting the Rao decision whoever that was. I have to say, setting aside the legalities, there’s something deeply disturbing about this situation. For those who dont have 20 mins to read it goes something like this: 5 drunk guys try to get into club at 4am’ish. Denied entry, have verbal confrontation with door-man, door-man alerts owner, further verbal confrontation between 5 drunk guys/owner and door-man. Drunk guys are moved outside the club. Owner makes racist comment that escalates the situation and major physical confrontation ensues. Owner stabs one drunk guy twice.

Whats deeply disturbing to me? Presumably the owner is well schooled in the trappings of serving shitloads of alcohol to people and . He makes a good living out of it every other weekend. At the last opportunity to walk away, the sober owner escalates the whole situation by making a highly offensive racist comment to rile up the presumably very drunk/irrational guys who’d just been denied entry to his club. He couldnt have just walked away? No, instead he incites a fight while knowingly armed with a flick knife, they are outnumbered and start losing the fight, so stabs one of them and kills him.

Something about this whole scenario and him getting off scot free doesn’t sit too well with me. Doesnt it set a bit of a dangerous precedent that it’s ok for bouncers/owners to carry flick-knives, incite a fight with drunks, then kill when they start losing?

They clearly instigated the fight though. :\ Rao wasn’t the first to get abusive, nor was he the first to get violent. Stupid racist comments aside, he wasn’t threatening to kill anyone (unlike the attackers) and he wasn’t throwing punches or the like until after he and the bouncer started getting gang-bashed by 5 big angry drunk men.

bundah 10:09 am 24 Jun 12

According to wikipedia his highness Higgins turns 70 next year which apparently is the mandatory retirement age for ACT judges.While many will be delighted with the news i suspect it may be short-lived given that Refshauge will probably replace him as chief imbecile!

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