21 June 2012

Murder/manslaughter and self-defence in the ACT

| bundah
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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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Lookout Smithers4:42 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.

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.

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 Smithers11:44 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 Smithers11:40 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.

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.

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?

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!

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 Smithers12:07 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 Smithers12:03 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?

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.

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 Smithers8:28 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 Smithers7:44 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.

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!

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.

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.

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.

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!

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?

He’s a bloke who sells overpriced booze to simpletons hoping to pick up in the wee small hours. Who says he’s intelligent, measured or reasonable? There is no requirement that he have interpersonal skills, a psychology degree, or a background in counselling in order to get his liquor licence.

As the girlfriend of someone who used to work security at several Canberra nightclubs. He wouldn’t need to “hope” to pick up. There was always enough drunk, skanky chicks offering ‘services’ in exchange of either being let into a club, not having to pay the entry fee or getting free drinks.

As the former room mate of a young man who worked security at several Canberra nightclubs, there was also enough skanky chicks willing to come back to ‘his’ place because he could let them in for free…. I swear he had up to 5 different chicks a week.. I couldn’t keep up with who was a one-night stand, who was the girlfriend etc….. Great amusement watching many of them do a walk of shame on a work/school morning while we were having breaky.

Nylex said :

bundah said :

In the Rao judgement i draw everyone’e attention to para’s 35&36 where the video shows the sequence of events.Briefly the deceased attempts to strike accused with sandbag and fails.It then appears that the accused used his flickblade to stab the victim in abdomen and also his temple penetrating his skull.The kicking occurred almost immediately thereafter.
Given those circumstances i believe that his actions would fall into the category of excessive force in self-defence.Obviously this is somewhat academic given the law doesn’t exist in the ACT.

I considered commenting in more detail on the Cameron Anderson killer however given that i do not have free access to the court transcript(apparently would cost $2000 to purchase) i will refrain from doing so except to say it was for me the most perplexing.

The less likely the result, the greater the difference in competence between the winning lawyer and the DPP lawyer?

The Anderson case had more to do with the prejudices of the presiding Judge than the competence of the lawyers on either side.

@ Henry BG

I should clarify that my response to your question was in reference to how i believe the law should be constructed in relation to self defence not how it currently stands whereby one can fundamentally apply whatever force they consider reasonable not what a reasonable person would do placed in the same situation.

That was meant to be disproportionate or excessive not disproportional!

HenryBG said :

bundah said :

Given those circumstances i believe that his actions would fall into the category of excessive force in self-defence.Obviously this is somewhat academic given the law doesn’t exist in the ACT.

Is it your opinion that, in the ACT, if self-defence can be proven, then any level of force is therefore legal?

No not any level of force but what a reasonable person would consider proportional to the level of threat or harm they are confronted with so for example using a gun or knife in a fist fight would be considered disproportional and excessive.

The less likely the result, the greater the difference in competence between the winning lawyer and the DPP lawyer?

Stands to reason providing there is a level playing field that could be applied in self-defence which clearly is not the case in the ACT.

bundah said :

In the Rao judgement i draw everyone’e attention to para’s 35&36 where the video shows the sequence of events.Briefly the deceased attempts to strike accused with sandbag and fails.It then appears that the accused used his flickblade to stab the victim in abdomen and also his temple penetrating his skull.The kicking occurred almost immediately thereafter.
Given those circumstances i believe that his actions would fall into the category of excessive force in self-defence.Obviously this is somewhat academic given the law doesn’t exist in the ACT.

I considered commenting in more detail on the Cameron Anderson killer however given that i do not have free access to the court transcript(apparently would cost $2000 to purchase) i will refrain from doing so except to say it was for me the most perplexing.

The less likely the result, the greater the difference in competence between the winning lawyer and the DPP lawyer?

bundah said :

Given those circumstances i believe that his actions would fall into the category of excessive force in self-defence.Obviously this is somewhat academic given the law doesn’t exist in the ACT.

Is it your opinion that, in the ACT, if self-defence can be proven, then any level of force is therefore legal?

In the Rao judgement i draw everyone’e attention to para’s 35&36 where the video shows the sequence of events.Briefly the deceased attempts to strike accused with sandbag and fails.It then appears that the accused used his flickblade to stab the victim in abdomen and also his temple penetrating his skull.The kicking occurred almost immediately thereafter.
Given those circumstances i believe that his actions would fall into the category of excessive force in self-defence.Obviously this is somewhat academic given the law doesn’t exist in the ACT.

I considered commenting in more detail on the Cameron Anderson killer however given that i do not have free access to the court transcript(apparently would cost $2000 to purchase) i will refrain from doing so except to say it was for me the most perplexing.

LSWCHP said :

bundah said :

caf said :

bundah said :

It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

Is it your contention that if you provoke a violent confrontation that the defence of self-defence should no longer be available to you, and you just have to take whatever kicking is coming to you?

An intelligent measured person would use their interpersonal skills to diffuse the situation, particularly as one is dealing with abusive drunken footballers, rather than exacerbate it!

He’s a bloke who sells overpriced booze to simpletons hoping to pick up in the wee small hours. Who says he’s intelligent, measured or reasonable? There is no requirement that he have interpersonal skills, a psychology degree, or a background in counselling in order to get his liquor licence.

I guess that’s why gaols are full of stupid people. Why Rao isn’t in there with them is a mystery.
I wonder if he’d stabbed a white guy, son of a copper maybe, or an ADFA cadet, if the result would have been the same? Seems doubtful.

devils_advocate12:22 am 23 Jun 12

snoopydoc said :

Seriously… who _is_ this Henry BG guy, and can we hire him out for parties?? Please?? 🙂

What an awesome party. Hearing some dude drone on about how much it cost him to fit four nankangs to his bmw.

So yeah, sounds like fun, wish I could make it, but I think I have something on that weekend.

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.

bundah said :

caf said :

bundah said :

It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

Is it your contention that if you provoke a violent confrontation that the defence of self-defence should no longer be available to you, and you just have to take whatever kicking is coming to you?

An intelligent measured person would use their interpersonal skills to diffuse the situation, particularly as one is dealing with abusive drunken footballers, rather than exacerbate it!

He’s a bloke who sells overpriced booze to simpletons hoping to pick up in the wee small hours. Who says he’s intelligent, measured or reasonable? There is no requirement that he have interpersonal skills, a psychology degree, or a background in counselling in order to get his liquor licence.

Deref said :

Slightly off-topic, but I don’t get this about jury duty…

I’m of an age where, I believe, I can’t be called. Nevertheless, I still have most of my marbles; I don’t work so I wouldn’t be foregoing income, and I’d be more than happy to serve. But I can’t.

WTF?

WTF? Old people saying WTF? My mum would be shocked!

bundah said :

bundah said :

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

There’s no doubt that this was an extremely difficult situation for the bouncers JB however my gut feeling,and i have seen many ugly confrontations over the years, is that imminent death was unlikely but bringing a large knife into the equation was extremely problematic and clearly deadly.

Perhaps we all need to remind ourselves that we are just fundamentally armchair critics and unless we are well versed with all the facts and sequence of events then our comments will quite likely lack credibility.I’ve just briefly reviewed the judgement in Rao and i would suggest others do the same because you may just change your perspective regarding this case.
http://www.courts.act.gov.au/supreme/judgment/view/3433/title/r-v-rao.
There was clearly no doubt that the intoxicated 5 Islanders were testing the patience of the security guard and the accused but they walked away after a few minutes realising they weren’t going to be allowed in the club.It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

The tough guys made their choices. One of them ended up dead as a result of his choices. To the dead guy it doesn’t matter at all whether his killer got off entirely or got life without parole. He’s dead, and that’s all that matters. He’d be alive if he’d made better choices.

If there is absolutely no alternative, I’m quite prepared to inflict damage on people who threaten me. But If bouncers don’t want me in their pub, then I’ll happily leave, regardless of whether they think I’m a stupid c*nt or not. Overpriced alcohol in Civic nightclubs isn’t worth dying for.

Lookout Smithers9:11 pm 22 Jun 12

bundah said :

bundah said :

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

There’s no doubt that this was an extremely difficult situation for the bouncers JB however my gut feeling,and i have seen many ugly confrontations over the years, is that imminent death was unlikely but bringing a large knife into the equation was extremely problematic and clearly deadly.

Perhaps we all need to remind ourselves that we are just fundamentally armchair critics and unless we are well versed with all the facts and sequence of events then our comments will quite likely lack credibility.I’ve just briefly reviewed the judgement in Rao and i would suggest others do the same because you may just change your perspective regarding this case.
http://www.courts.act.gov.au/supreme/judgment/view/3433/title/r-v-rao.
There was clearly no doubt that the intoxicated 5 Islanders were testing the patience of the security guard and the accused but they walked away after a few minutes realising they weren’t going to be allowed in the club.It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

Exactly, we are armchair critiques. But you read the judgement which makes the finding of self defence option being open to him and the reasons supporting that. Extracting things from the judgement and making your own inferences makes no sense? The judgement explains his finding. If you want to argue evidence then you need to produce your own. No question disputing what you say about them having walked off. But they returned, whatever the reasons were is not in question at all. They still attacked two out numbered people who were at work.

Lookout Smithers8:26 pm 22 Jun 12

Deref said :

Slightly off-topic, but I don’t get this about jury duty…

I’m of an age where, I believe, I can’t be called. Nevertheless, I still have most of my marbles; I don’t work so I wouldn’t be foregoing income, and I’d be more than happy to serve. But I can’t.

WTF?

Criminal record, one you might not be aware of? Like admin error or such? Has happened to others.

Lookout Smithers8:23 pm 22 Jun 12

bundah said :

@ Lookout Smithers

In Rao you say he was attacked by a pole attached to a concrete block yet in the judgement the witnesses said it was a hessian sandbag that was swung at him which hit the door and split.There’s no doubt that the drunken islanders were out of line and verbally abusive but they left and the only reason they returned throwing punches was because Rao inflammed the situation with his audible comment “why do all these black c**ts have to all be so fu**ing stupid! As for excessive force in self-defence bringing a knife into the confrontation with deadly results would fit into that category i would’ve thought.

I stand corrected with the sand bag. I was confusing it with another case. Indeed the racist remarks indicate lack of insight and some incensitivness, but it does not mitigate the circumstances. The fact that a box cutter ( a knife present here would need to be justified) was produced indicates the real threat that he faced. Take into account his size and ability. I think he was in real fear understandably. Anyway I hate harping on about cases like this. I am not a lawyer and do not know the law well enough. The concern I have mainly is to do with those who seem to believe that there is some kind of injustice taking place regularly in a corrupt court. This is a ridiculous notion and makes me think that there is a lack of entertainment in ACT, but for this sight with these issues. It is a lovely city, very safe indeed.

Seriously… who _is_ this Henry BG guy, and can we hire him out for parties?? Please?? 🙂

Please, can the Admins look at why accessing the second page of comments closes down your sign-in, and therefore quoting comments.

Deref @ #47.

Thoroughly agree. Well past the cut off age, but don’t consider myself senile, incompetent, incontinent, or (too) politically incorrect.

Why on earth a 60 age limit?

caf said :

bundah said :

It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

Is it your contention that if you provoke a violent confrontation that the defence of self-defence should no longer be available to you, and you just have to take whatever kicking is coming to you?

An intelligent measured person would use their interpersonal skills to diffuse the situation, particularly as one is dealing with abusive drunken footballers, rather than exacerbate it!

Slightly off-topic, but I don’t get this about jury duty…

I’m of an age where, I believe, I can’t be called. Nevertheless, I still have most of my marbles; I don’t work so I wouldn’t be foregoing income, and I’d be more than happy to serve. But I can’t.

WTF?

bundah said :

bundah said :

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

There’s no doubt that this was an extremely difficult situation for the bouncers JB however my gut feeling,and i have seen many ugly confrontations over the years, is that imminent death was unlikely but bringing a large knife into the equation was extremely problematic and clearly deadly.

Perhaps we all need to remind ourselves that we are just fundamentally armchair critics and unless we are well versed with all the facts and sequence of events then our comments will quite likely lack credibility.I’ve just briefly reviewed the judgement in Rao and i would suggest others do the same because you may just change your perspective regarding this case.
http://www.courts.act.gov.au/supreme/judgment/view/3433/title/r-v-rao.
There was clearly no doubt that the intoxicated 5 Islanders were testing the patience of the security guard and the accused but they walked away after a few minutes realising they weren’t going to be allowed in the club.It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

No it’s not, really. Especially since the interlopers had by that point already threatened to bash and kill both the bouncer and the accused. He didn’t instigate the fight either, but was pulled out of the doorway to his club and bashed by the group, and his bouncer was set upon. I read the whole thing too, and sure he said something stupid and racist, but he didn’t direct it AT them. Regardless, he did not start the physical confrontation, and did not use the knife until he and his co-worker had both been seriously assaulted. For once I think the courts got it right.

bundah said :

It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

Is it your contention that if you provoke a violent confrontation that the defence of self-defence should no longer be available to you, and you just have to take whatever kicking is coming to you?

bundah said :

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

There’s no doubt that this was an extremely difficult situation for the bouncers JB however my gut feeling,and i have seen many ugly confrontations over the years, is that imminent death was unlikely but bringing a large knife into the equation was extremely problematic and clearly deadly.

Perhaps we all need to remind ourselves that we are just fundamentally armchair critics and unless we are well versed with all the facts and sequence of events then our comments will quite likely lack credibility.I’ve just briefly reviewed the judgement in Rao and i would suggest others do the same because you may just change your perspective regarding this case.
http://www.courts.act.gov.au/supreme/judgment/view/3433/title/r-v-rao.
There was clearly no doubt that the intoxicated 5 Islanders were testing the patience of the security guard and the accused but they walked away after a few minutes realising they weren’t going to be allowed in the club.It is quite obvious that the accused provoked the ugly confrontation that followed with his rascist derogatory remarks.

devils_advocate2:16 pm 22 Jun 12

HenryBG said :

Obviously it will be no hardship for our lawyers and judges to reduce their rates from $2000-$3000/day to $96.
Let me know when you get them to agree and I’ll join in at the same rate.

Jury duty does not require you to forgo your income forever, just for a set period of time. Nobody is suggesting that you (or lawyers or judges) reduce their fees permanently.

Also lawyers do pro bono work.

So your self-serving analogy is flawed on two fundamental bases.

johnboy said :

Proboscus said :

Fair call JB but there was a window of time (a few minutes I recall) where the police could’ve been called – just saying.

I have heard that when someone is on the ground getting a kicking they are dying.

Without your body being able to move with t
If you see someone on the ground getting kicked you are letting them die if you wait for the police.

+1
I think he should be commended for defending his employee. It sounds like an awful situation, and that his actions prevented an innocent victim from suffering death or serious injury. If someone had to die I’m glad it was an aggressor. If this is the same club I think we’re talking about, then my guess is that the attack was motivated by bigotry and the instigators deserve whatever they got.

“I take it that gizmo1 is just your Internet identity while your real name is Chuck Norris”

Nah, just have a realistic veiw of the quality of the Canberra Rebels. Overall they may well be Australia’s largest OMC, but if you let any turkey in…..

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

There’s no doubt that this was an extremely difficult situation for the bouncers JB however my gut feeling,and i have seen many ugly confrontations over the years, is that imminent death was unlikely but bringing a large knife into the equation was extremely problematic and clearly deadly.

Proboscus said :

Fair call JB but there was a window of time (a few minutes I recall) where the police could’ve been called – just saying.

I have heard that when someone is on the ground getting a kicking they are dying.

Without your body being able to move with the blows the effects are much worse.

If you see someone on the ground getting kicked you are letting them die if you wait for the police.

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

Well put JB !

I know everyone has issues with Rao “getting away with murder” but you have just described the events in the best way possible

johnboy said :

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

Fair call JB but there was a window of time (a few minutes I recall) where the police could’ve been called – just saying.

Lookout Smithers said :

bundah said :

Lookout Smithers said :

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.

I concede that forming an opinion by reading a judgement is obviously not the same thing as sitting through a trial getting a feel for the proceedings and determining whether the defendant is being totally honest.Yes given that they were not convicted then killed would be more appropriate rather than tragic death.

IMO both Rao and Fields used excessive force in the situation they found themselves in however given the law as it still stands the DPP never had a chance.As for the Cameron Anderson killer it was obvious that Higgins believed her version of events and therefore concluded that she acted reasonably given the circumstances.I wish i had been there to observe the proceedings so that i could have gauged for myself as to whether her statements were truthful given that some of her claims regarding what transpired did not add up.After all dead men don’t talk and i have been led to believe by reliable confidential sources that she was a nutter and that her claims were dubious.

The judgement that is available to read contains his honor’s findings and the reasons for them. It doesn’t give you the evidence attatched or attatchments like expert wittnesses reports. They can be obtained though. I couldn’t find where the findings of Rao and Fields using excessive force were in the judgements of either? In Rao’s case he was out numbered by 4 attackers, one of which was charging at him with a pole stuck to a block of concrete. The fact that a fatal blow was inflicted on one of the men wasn’t the result of excessive force as it doenst take much to put a sharpe object into the temple of another. That in itself was unlucky but in if I was under attack with no help, as the co worker was already knocked out, from big blokes drunk and stirred up, it is not really surprising that it played out the way it did. The force was not excessive but that isn’t to say that it didn’t cause excessive damamge. No one needed to die here, but it was always going to injure someone seriously. The whole thing is on video so I am guessing if it was an equal battle, maybe it would have been excessive? It might not have been that a weapon was produced as opposing one and not five changes the nature of one’s reaction no doubt.

My memory of the outrage caused by the Rao case was that he was inside the nightclub he managed, went up (or down stairs) and then went outside to confront the four men who were causing some issues with the bouncers.

He then, for whatever reason ran back inside, ran up (or down) stairs, grabbed a large kitchen knife, ran back up (or down) stairs and went outside to confront the four men again.

Rao stabbed the victim in the head during this second confrontation. His evidence was that he felt threatened and that’s why he used lethal force.

My question to Mr Rao, the presiding judge and all the civil libertarians is that if Rao felt threatened by the situation, then why didn’t he use a phone to call police when he ran back into the nightclub instead of arming himself with a large kitchen knife and running back outside and using it?

To be fair it was more a case of “some very large drunken men were in the process of killing one of his bouncers”

@ Lookout Smithers

In Rao you say he was attacked by a pole attached to a concrete block yet in the judgement the witnesses said it was a hessian sandbag that was swung at him which hit the door and split.There’s no doubt that the drunken islanders were out of line and verbally abusive but they left and the only reason they returned throwing punches was because Rao inflammed the situation with his audible comment “why do all these black c**ts have to all be so fu**ing stupid! As for excessive force in self-defence bringing a knife into the confrontation with deadly results would fit into that category i would’ve thought.

HenryBG said :

bigfeet said :

What is really hilarious is that you basically have the same attitude as those criminals and welfare rorters that you harp on about.

Yes, I have precisely the same attitude.
Except I don’t commit crime.
Oh, and I work for a living.
Oh, and I don’t bludge handouts.
Oh, and I pay tax.

So, apart from not committing crimes, working for a living, not bludging welfare and paying tax, I am basically exactly the same as a criminal welfare rorter.
Well spotted, genius.

I said your attitude was the same. Not that you were the same or did the exact same things.

It’s the attitude that is the same. That was quite clear, particularly if you used my full quote.. Actually…it is pretty clear from the selective quote you have taken as well. It quite clearly compares the attitudes and nothing more.

Lookout Smithers4:22 am 22 Jun 12

HenryBG said :

Lookout Smithers said :

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. I

…which is contradicted by both the defendant’s evidence AND the expert medical witness who examined her. The alleged assault had taken place prior to the stabbing. Prior to all 8 of the stabbings, to be precise.

As we saw with Refshauge’s failure to correctly identify a breach of bail conditions by the man who went on to kill the pedestrian in front of Canberra Hospital, the law in this town is run by a bunch of nincompoops who couldn’t think their way out of a wet paper bag

How can the defandant’s evidence contradict a ruling in favor of her? I have not seen the expert witness report. You say that is occured before but why would I believe you when the judgement states otherwise. And again, “about to occur or during” is how it reads? The findings do not say what you are alleging? Why is this ? What makes you say that it happened differently to what is the findings of the court? The allegation of the crown isn’t enough when they clearly were not able to prove it. I think you can understand my curiousity here. Refshauge’s decisions I have not read. Though being the Director of public prosecutions for as long that makes me think that if someone knows how it all works, they probably do. I am sure that they aren’t just letting people do as they please as you seem to believe. It is a system that has flaws, no question. But it works as best for the greater good of us. Canberra is a dam nice place and very safe under the current laws there. Even the police are not too bent there. Not the case here in St Kilda I promise you.

Lookout Smithers4:07 am 22 Jun 12

bundah said :

Lookout Smithers said :

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.

I concede that forming an opinion by reading a judgement is obviously not the same thing as sitting through a trial getting a feel for the proceedings and determining whether the defendant is being totally honest.Yes given that they were not convicted then killed would be more appropriate rather than tragic death.

IMO both Rao and Fields used excessive force in the situation they found themselves in however given the law as it still stands the DPP never had a chance.As for the Cameron Anderson killer it was obvious that Higgins believed her version of events and therefore concluded that she acted reasonably given the circumstances.I wish i had been there to observe the proceedings so that i could have gauged for myself as to whether her statements were truthful given that some of her claims regarding what transpired did not add up.After all dead men don’t talk and i have been led to believe by reliable confidential sources that she was a nutter and that her claims were dubious.

The judgement that is available to read contains his honor’s findings and the reasons for them. It doesn’t give you the evidence attatched or attatchments like expert wittnesses reports. They can be obtained though. I couldn’t find where the findings of Rao and Fields using excessive force were in the judgements of either? In Rao’s case he was out numbered by 4 attackers, one of which was charging at him with a pole stuck to a block of concrete. The fact that a fatal blow was inflicted on one of the men wasn’t the result of excessive force as it doenst take much to put a sharpe object into the temple of another. That in itself was unlucky but in if I was under attack with no help, as the co worker was already knocked out, from big blokes drunk and stirred up, it is not really surprising that it played out the way it did. The force was not excessive but that isn’t to say that it didn’t cause excessive damamge. No one needed to die here, but it was always going to injure someone seriously. The whole thing is on video so I am guessing if it was an equal battle, maybe it would have been excessive? It might not have been that a weapon was produced as opposing one and not five changes the nature of one’s reaction no doubt.

Higgins didn’t just simply believe one witness over another in making the finding. The evidence supported her version of events. It had to have and did. If not the case then higgins would be miscarrying justice as he must consider on the evidence and all the facts, not just if he happens to think one witness sounds more credible than another. That is not how it works. Force again not an issue here as self defence was made out and open to her. Her being a nutter is of no cosequnce whatsoever. She might have been a foul mouthed white trash reprobate with prior convictions, all of which amounts to a profile and only an opinion. There is no need for your source to be confidential in relation to the case? You don’t have to give their name. Maybe ask again how they know of her apparent guilt? How is it that they aren’t the judge needing to hear the evidence. There just isn’t going to be a case where a life lost tragically results in a shit outcome for all. There are no winners really. It isn’t a pleasant idea that people die at the actions of another without rotting in prison. It makes us feel like there is nothing to protect us at a guarantee. But that is true anyway. There are none ever. But the law as is the way it is currently works only with certain things permitting. One aspect is that justice only functions with equal representation on both sides. One cannot coexist without the other. Additionally the presumption of innocence. If the crown can’t make out its case beyond reasonable doubt, the outcome will be aquittal. It is seriously important note that if you can’t convict on evidence, then it you shouldn’t based on anything else. It sets a dangerous predcident. That is how judges consider cases and any personal opinions about character are far too irrelevant as they are dealing with a much bigger issue that just the case before them and they see enough cases with all types come through the system daily. How many opinions about character would you have? It isn’t a factor at all and no amount of police opinion would change that, nor should it. I say police opinion because that is where such things, if anywhere at all, have merit. Among collective thought, even with reason. It is not up to them to interpret the law but they can have an opinion. I guess..

bigfeet said :

What is really hilarious is that you basically have the same attitude as those criminals and welfare rorters that you harp on about.

Yes, I have precisely the same attitude.
Except I don’t commit crime.
Oh, and I work for a living.
Oh, and I don’t bludge handouts.
Oh, and I pay tax.

So, apart from not committing crimes, working for a living, not bludging welfare and paying tax, I am basically exactly the same as a criminal welfare rorter.
Well spotted, genius.

TheDancingDjinn8:54 pm 21 Jun 12

Comic_and_Gamer_Nerd said :

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.

I think that killing a rapeist is pretty fair.

If the young man was in fact a rapist then yes i agree – but if he was an innocent man, then the same punishment she dished out should be given back to her.

Heavs said :

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.

Let’s just say some judges are defendant-friendly and some are hanging-judges. Higgins is definitely in the former category.

HenryBG said :

Jim Jones said :

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

I’m available anytime they want me. My rate is $1400/day.

I’m with HenryBG on this one. I’m happy to participate in the justice system but not to subsidise it to the tune of several hundred dollars a day in forgone income to me/my employer. Jury fees need to be more realistic.

Comic_and_Gamer_Nerd6:44 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.

I think that killing a rapeist is pretty fair.

HenryBG said :

Obviously it will be no hardship for our lawyers and judges to reduce their rates from $2000-$3000/day to $96.
Let me know when you get them to agree and I’ll join in at the same rate.

What is really hilarious is that you basically have the same attitude as those criminals and welfare rorters that you harp on about.

“Society owes me everything and yet I owe nothing back to society”

You just show your sense of entitlement in a slightly more acceptable way.

bigfeet said :

HenryBG said :

Jim Jones said :

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

I’m available anytime they want me. My rate is $1400/day.

Even more reason as to why you should do jury service then. Obviously if you make that sort of money then it is going to be no hardship for you to give something back to the community.

Obviously it will be no hardship for our lawyers and judges to reduce their rates from $2000-$3000/day to $96.
Let me know when you get them to agree and I’ll join in at the same rate.

HenryBG said :

Jim Jones said :

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

I’m available anytime they want me. My rate is $1400/day.

Even more reason as to why you should do jury service then. Obviously if you make that sort of money then it is going to be no hardship for you to give something back to the community.

HenryBG said :

Jim Jones said :

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

I’m available anytime they want me. My rate is $1400/day.

Civic duty and employment are two different things. I agree with the others – if you aren’t willing to do your duty, you don’t get to criticise.

Jeeeez! One thing at a time! Corbell has to make sure we get the full value of our gift vouchers before tackling this side issue.

Jim Jones said :

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

I’m available anytime they want me. My rate is $1400/day.

HenryBG said :

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

So … you’re too important to take part in the legal system?

Heavs said :

B) Those unwilling to participate in the legal system should forfeit their right to comment on any aspect of it.

I am more than willing to participate in the legal system. However, the legal system specifically excludes police, teachers, nurses, doctors and anybody else in this town engaged in productive employment, relying instead on public servants and anybody else whose time can be valued at $96/day.

Lookout Smithers said :

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.

I concede that forming an opinion by reading a judgement is obviously not the same thing as sitting through a trial getting a feel for the proceedings and determining whether the defendant is being totally honest.Yes given that they were not convicted then killed would be more appropriate rather than tragic death.

IMO both Rao and Fields used excessive force in the situation they found themselves in however given the law as it still stands the DPP never had a chance.As for the Cameron Anderson killer it was obvious that Higgins believed her version of events and therefore concluded that she acted reasonably given the circumstances.I wish i had been there to observe the proceedings so that i could have gauged for myself as to whether her statements were truthful given that some of her claims regarding what transpired did not add up.After all dead men don’t talk and i have been led to believe by reliable confidential sources that she was a nutter and that her claims were dubious.

Lookout Smithers said :

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. I

…which is contradicted by both the defendant’s evidence AND the expert medical witness who examined her. The alleged assault had taken place prior to the stabbing. Prior to all 8 of the stabbings, to be precise.

As we saw with Refshauge’s failure to correctly identify a breach of bail conditions by the man who went on to kill the pedestrian in front of Canberra Hospital, the law in this town is run by a bunch of nincompoops who couldn’t think their way out of a wet paper bag

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.

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.

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

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.

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

Fair dinkum, how pathetic are you?

Lookout Smithers1:02 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.

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.

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.

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.

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.

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 Smithers10:56 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.

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.

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.

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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