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Murder/manslaughter and self-defence in the ACT

By 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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88 Responses to
Murder/manslaughter and self-defence in the ACT
aceofspades 3:46 pm 21 Jun 12

gizmo1 said :

aceofspades said…..
Two unarmed men representing an extremely dangerous outlaw motorcycle gang?

Fair dinkum, how pathetic are you?

Well as it turns out not terribly dangerous at the end of a 12 gauge. Rebels are however the largest OMC in the country and how is that no others will ride through Canberra wearing their colours? I take it that gizmo1 is just your Internet identity while your real name is Chuck Norris.

Heavs 3:22 pm 21 Jun 12

banco said :

It’s no secret that Higgins is the kind of judge you’d want on the bench if you were the defendant.

Insightful.

banco 1:31 pm 21 Jun 12

It’s no secret that Higgins is the kind of judge you’d want on the bench if you were the defendant.

chewy14 1:20 pm 21 Jun 12

I agree,

I’ve read all those judgements and I think that on the balance of things the judge made the right call as to how the law currently stands.
However, I definitely think that the law in these types of cases needs changing. I agree with the OP’s statement with regards to excessive force.

gizmo1 1:03 pm 21 Jun 12

aceofspades said…..
Two unarmed men representing an extremely dangerous outlaw motorcycle gang?

Fair dinkum, how pathetic are you?

Lookout Smithers 1:02 pm 21 Jun 12

HenryBG said :

Lookout Smithers said :

Both Rao and Girl victim had evidence of extreme harm imminent I thought.

What rubbish. The “Girl victim” was an accused whose defence was that she was raped. Her “self-defence” didn’t occur before the rape, but after it. Lethally stabbing somebody 8 times, (most of them in his back from behind) is not an appropriate response to rape and is not in a situation of “extreme harm imminent”. In other words, it wasn’t “self-defence”, it was revenge. And it was completely out of proportion to the crime that she alleges she was the victim of.
The fact she got off shouldn’t be sheeted home to the magistrate, but should open questions as to the competence of the prosecutor. These questions are all the more relevant considering the abject failure of his appeal to get off the ground, all the more so seeing as it appears his abject failure of an appeal looks like it will be leading to yet more expense to the ACT ratepayer.

The “Judge”‘s findings if you read it again, don’t try again in your sleep, state that it was : “about to or during”. Now the judge is required to by law weigh everything in EVIDENCE in determining a judgement. If you have seen all the evidence and there isn’t any present from which you can make inference as to whether a sexual assualt took place, then you would be the first. The appeal was a reference appeal which is not really the same as it is a vehicle to argue points of law and in no way affects the judgement already given. Now be clear on this. How come they didn’t just appeal the decision against the verdict as done in many other cases? The case would have to be pretty dam strong and lots of facts that couldn’t be argued all through it for a prosecutor to try for something like a reference appeal. You do note that it was also withdrawn. I can’t be assed telling you why that was because you will only wonder more why they ever charged her at all in the first place.

Heavs 12:35 pm 21 Jun 12

HenryBG said :

Lookout Smithers said :

Both Rao and Girl victim had evidence of extreme harm imminent I thought.

What rubbish. The “Girl victim” was an accused whose defence was that she was raped. Her “self-defence” didn’t occur before the rape, but after it. Lethally stabbing somebody 8 times, (most of them in his back from behind) is not an appropriate response to rape and is not in a situation of “extreme harm imminent”. In other words, it wasn’t “self-defence”, it was revenge. And it was completely out of proportion to the crime that she alleges she was the victim of.
The fact she got off shouldn’t be sheeted home to the magistrate, but should open questions as to the competence of the prosecutor. These questions are all the more relevant considering the abject failure of his appeal to get off the ground, all the more so seeing as it appears his abject failure of an appeal looks like it will be leading to yet more expense to the ACT ratepayer.

A) Judge not Magistrate.
B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

HenryBG 12:08 pm 21 Jun 12

Lookout Smithers said :

Both Rao and Girl victim had evidence of extreme harm imminent I thought.

What rubbish. The “Girl victim” was an accused whose defence was that she was raped. Her “self-defence” didn’t occur before the rape, but after it. Lethally stabbing somebody 8 times, (most of them in his back from behind) is not an appropriate response to rape and is not in a situation of “extreme harm imminent”. In other words, it wasn’t “self-defence”, it was revenge. And it was completely out of proportion to the crime that she alleges she was the victim of.
The fact she got off shouldn’t be sheeted home to the magistrate, but should open questions as to the competence of the prosecutor. These questions are all the more relevant considering the abject failure of his appeal to get off the ground, all the more so seeing as it appears his abject failure of an appeal looks like it will be leading to yet more expense to the ACT ratepayer.

aceofspades 11:55 am 21 Jun 12

Tooks said :

aceofspades said :

Tooks said :

Good post – interesting to read about the Zecevic case.

I wasn’t surprised about the Anderson killer being acquitted, but I never thought Field’s self-defence claim would stand. Hard to see how shooting two unarmed men to death could be self-defence, but there you go.

Two unarmed men representing an extremely dangerous outlaw motorcycle gang that had threatened both his and his families life, that turned up on his doorstep with a list of his belongings that they were going to confiscate on the say so of some ex girlfriend. They ended up where they belonged, the morgue.

To be honest, I couldn’t care less about the victims in this particular case. My point was, I was surprised it was deemed to be self-defence. I wouldn’t classify Rebels Canberra as being extremely dangerous, but let’s not derail the thread.

I was surprised also but not displeased, I was happy to see outlaws learn a well needed lesson even though technically only one was a Rebel. These two certainly aren’t too dangerous now and hopefully future club members might think twice before trying to use fear and status for personal gain. So in this case all I say is well done Mr Higgins.

Tooks 11:36 am 21 Jun 12

aceofspades said :

Tooks said :

Good post – interesting to read about the Zecevic case.

I wasn’t surprised about the Anderson killer being acquitted, but I never thought Field’s self-defence claim would stand. Hard to see how shooting two unarmed men to death could be self-defence, but there you go.

Two unarmed men representing an extremely dangerous outlaw motorcycle gang that had threatened both his and his families life, that turned up on his doorstep with a list of his belongings that they were going to confiscate on the say so of some ex girlfriend. They ended up where they belonged, the morgue.

To be honest, I couldn’t care less about the victims in this particular case. My point was, I was surprised it was deemed to be self-defence. I wouldn’t classify Rebels Canberra as being extremely dangerous, but let’s not derail the thread.

aceofspades 11:12 am 21 Jun 12

Tooks said :

Good post – interesting to read about the Zecevic case.

I wasn’t surprised about the Anderson killer being acquitted, but I never thought Field’s self-defence claim would stand. Hard to see how shooting two unarmed men to death could be self-defence, but there you go.

Two unarmed men representing an extremely dangerous outlaw motorcycle gang that had threatened both his and his families life, that turned up on his doorstep with a list of his belongings that they were going to confiscate on the say so of some ex girlfriend. They ended up where they belonged, the morgue.

Lookout Smithers 10:56 am 21 Jun 12

I have read those three judgements. I thought they were outcomes that were reasonable. The law until it changed didn’t make it extrememly difficult for prosecutors at all. The legal definition of murder was just much narrower than in other states. You have used the term” Murders” for these three cases, which now are just tragic deaths. Corbell thankfully cannot just change what ever law he wants without it being first scrutinised and debated by others in the legistlature. Usually that only will happen near an election date when he’ll claim to get tougher on crime. That is a sentiment heard every year and never sees the light of day because he really doesn’t give a toss or has no likelyhood of changing anything anyway because it isn’t needed.
Higgins heard those three cases because at that time there were only three Judges for about ten years hearing hundreds of cases. The others heard just as many murder and manslaughter cases. It just happened to be that those three were heard by him and in any case, as the chief justice, he is responsible for over seeing all cases being dealt with in the Supreme court fit and proper.

Two of those cases you mention have overwhelmingly strong circumstances of self defence. Excessive force doesn’t mean no use of force. Self defence is not open to any amount of force being used in the right circumstances. The force used must be proportionate to the threating force. Both Rao and Girl victim had evidence of extreme harm imminent I thought. The legal system does pretty good work here, though not perfect by any means. Innocent people do get Jailed. It happens sure enough. And now and then an offender will get off too. That is the system we have. Greatest good for the greatest number. Sad but true depending on how well you understand it.

Mysteryman 10:55 am 21 Jun 12

Interesting post. I agree that issue of criminal law need to be reviewed, and changes made.

Slightly related – I was walking to the car from work some time ago and saw some large pink graffiti on the ground clearly spelling out who it was that killed young Cameron Anderson. I took a photo of it with the intention of sending it in to RA but never got around to doing it.

Tooks 10:31 am 21 Jun 12

Good post – interesting to read about the Zecevic case.

I wasn’t surprised about the Anderson killer being acquitted, but I never thought Field’s self-defence claim would stand. Hard to see how shooting two unarmed men to death could be self-defence, but there you go.

pptvb 10:26 am 21 Jun 12

I must say that, with an election just around the corner, Law & Order is going to be a major issue for me.
I agree that the judgements regarding serious crime, as Bundah has highlighted, are falling way, way short on any community expectations. It must be devastating for victims and their families.
The repercussions for “lesser” criminals, such as DUI repeat offenders, seem to be minimal.
These need updating drastically.

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