Citation: REGINA v. SCHUBERT [2000] NSWSC 1127 revised - 30/01/2001
Court: Supreme Court of New South Wales, Criminal Division
Date: 5 December 2000
Judge(s): Greg James J
Background
The accused was charged with murdering a man at a residential premises in Hillsdale on 6 May 1999. The deceased had entered the dwelling she shared with her fiancé and immediately commenced an assault on both of them. The accused stabbed the deceased during or shortly after that assault.
The accused elected for a judge-alone trial under the Criminal Procedure Act 1996. Evidence before the court included material about the accused's significant intellectual impairment, which was relevant to her perception of the circumstances at the time of the stabbing.
The Crown alleged murder. The defence raised self-defence, the potential application of the Home Invasion (Occupants Protection) Act 1998, and, in the alternative, provocation and manslaughter.
Legal Issues
- Whether the Crown had proved beyond reasonable doubt that the accused acted with the requisite intent for murder (intent to kill, inflict grievous bodily harm, or reckless indifference to human life)
- Whether self-defence at common law applied, as articulated in Zecevic v DPP (1987) 162 CLR 645
- Whether the Home Invasion (Occupants Protection) Act 1998 applied and, if so, whether it provided a separate or wider immunity than the common law
- Whether the accused's significant intellectual impairment was relevant to her subjective perception of the threat and the necessity of her response
- The proper scope of reasons a judge must give when delivering an acquittal in a judge-only trial
Decision
Greg James J found that the deceased was plainly an "intruder" within the definition in s 4 of the Home Invasion (Occupants Protection) Act 1998. He had made an unlawful entry and was committing a crime against occupants of the dwelling. The Crown did not contest this finding.
His Honour held that the Act operates as a code. Under ss 6, 7, and 9 of the Act, an occupant may act in self-defence against an intruder if the occupant believes on reasonable grounds that it is necessary to do so, with those grounds assessed by reference to the circumstances as the occupant perceived them. The onus under s 10 falls on the prosecution to rebut that belief beyond reasonable doubt. His Honour concluded it was unnecessary to determine whether the immunity under the Act was wider than the common law, because on the facts the accused was entitled to the protection of the Act in any event.
The accused's significant intellectual impairment was relevant to assessing how she perceived the circumstances. Treating her perception as that of a person with her intellectual limitations, the court was not satisfied beyond reasonable doubt that her act of stabbing fell outside the protective purposes for which the Act's immunity and the common law defence exist. The inference that she had turned aggressor when she came outside with a knife was expressly rejected.
Because the accused was entitled to an acquittal on the primary charge and the self-defence ground, it was unnecessary to consider provocation or the alternative charge of manslaughter.
Orders Made
- The accused was found not guilty of murder.
- The accused was found not guilty of manslaughter.
- A judgment of acquittal was entered accordingly.
Key Takeaways
- The Home Invasion (Occupants Protection) Act 1998 operates as a code. Where the Act applies, it is not necessarily required to determine whether the immunity it confers is broader than the equivalent common law defence.
- Under ss 6, 7, 9, and 10 of that Act, the reasonableness of an occupant's belief that force was necessary is assessed by reference to the circumstances as the occupant subjectively perceived them, and the prosecution bears the onus of rebutting that belief beyond reasonable doubt.
- Significant intellectual impairment does not go only to mental illness or diminished responsibility defences. It is also relevant to assessing the accused's subjective perception of threat and the apparent necessity of a defensive response.
- In a judge-alone criminal trial under s 17 of the Criminal Procedure Act 1996, reasons for an acquittal must expose principles of law applied and findings of fact, and must address the arguments and evidence sufficiently to show what was accepted or rejected. However, the Supreme Court cautioned against going further than necessary, warning that elaborate reasoning on acquittal risks appearing to reverse the onus of proof.
- An acquittal does not represent reasons why an accused should go free. It reflects the prosecution's failure to satisfy the tribunal of fact beyond reasonable doubt, and the court's reasons should be understood in that light.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1996 (NSW), ss 16, 17 (formerly s 32)
- Crimes Act 1900 (NSW), ss 5, 18, 23A
- Home Invasion (Occupants Protection) Act 1998 (NSW), ss 4, 6, 7, 9, 10
Cases
- Regina v Murphy [2000] NSWCCA 297
- Fleming v The Queen (1998) 158 ALR 379
- Zecevic v Director of Public Prosecutions (1987) 162 CLR 645
- Regina v Hawes (1994) 35 NSWLR 294
- Regina v Conlon (1993) 69 A Crim R 92
- Downes (1985) 18 A Crim R 75
- Cutter (1997) 94 A Crim R 152
- Regina v Maxwell (CCA, unreported, 23 December 1998)