Self Defence
1.0 Self Defence & Murder
Howe [1987]
Viro (1978)
Palmer [1971]
Zecevic (1987)
2.0 Offences Below Murder
AG’s Reference (No 2 of 1982) [1984] QB
3.0 Elements of Self Defence
3.1 Defendant must fulfill both Subjective & Objective tests
D is entitled to be acquitted provided her or his use of force was reasonable on both a subjective and objective view. - Zecevix v DPP (VIC) (1987)
1. Subjective Test
* D believed he needed to resort to self defence
* D believed his quantum of force was necessary to defend himself
The subjective element requires the jury first to determine whether the defendant subjectively believed that it was necessary in self-defence to do what he or she in fact did.
2. Objective test
* A reasonable person in D’s situation would have believed that it was necessary to resort to force
* A reasonable person in D’s situation would have believed that the quantum of force resorted to was necessary - Conlon (1993)
* Intoxication cannot be attributed to the ordinary man. s428F prohibits imputing intoxication to the hypothetical reasonable person when applying a reasonable person test.
The second leg of the test is whether the conduct of the defendant was a reasonable response in the circumstances as he or she perceived them.
The test relates to whether the defendant's actions were reasonable, not to whether a reasonable man would have done the same thing: Conlon (1993) As a result s. 428F Crimes Act does not apply, and the court can take into account characteristics of the defendant such as intoxication - Conlon (1993)
Crimes Act.
428F Intoxication in relation to the reasonable person test
If, for the purposes of determining whether a person is guilty of an offence, it is necessary to compare the state of mind of the person with that of a reasonable person, the comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated.
3.2 D’s force is subdivided into 2 categories
a. D’s decision to resort to force
b. D’s decision as to the quantum of force used
* Both must satisfy the subjective & the objective test
* Witham (1977)
3.3 Nature of attack or threat required
* The attack need not be unlawful - It is supposed that the accused must be forced with an attack or threatened attack which is unlawful in order to justify use of force against the attacker and no doubt that in most cases D will fail unless this is so.
In Zecevic, it was allowed by majority that the defence could still be available in a case where the accused mistakenly but reasonable believed that the attack was unlawful.
OR
There is no requirement that the attack-giving rise to the accused’s actions be unlawful, as seen in Zecevic.
* Need not be imminent, a future threat can suffice
3.4 D’s quantum of force
Howe [1987] where the court stated that to justify a homicide, the attack needs to be of “a violent & felonious nature, or an unlawful nature, where D feared for his life or the safety of his person from injury, violation, or indecent or insulting usage.”
3.5 Mistake of Fact by D
An honest mistake on part of the defendant whether or not it is a reasonable one is capable of preventing the formation of mens rea.
Honest (but not necessarily reasonable) mistake of fact has no role here.
Howe [1987]
Beckford [1988]
3.6 Miscellaneous Cases
* D must be motivated by genuine self defence - Falla [1964]
* D may defend himself against unlawful attack even when he himself has been acting unlawfully, eg trespass
* Defence not available if D willingly joined a fight & the violence level was increased by the opponent - circumstances of affray - Nguyen (1995)
* If D is the initial aggressor, defence may still be available - Viro (1978)
* Battered Woman Syndrome as self defence - Osland (1998)
* Reasonable force may be used to defend the defendants property - McKay
4.0 Burden of Proof
Self-defence is a non-affirmative defence, which must be raised by the defence then disproved beyond reasonable doubt by the prosecution. - s419
Taking into account the onus of proof in a criminal prosecution, to negative a defence of self defence, once raised, the prosecution must establish either that:
1.the accused did not genuinely believe that he did what he did in self-defence, OR
2. that the accused did not believe that what he did was a reasonable response, as he perceived them to be, as seen in Katarzynski [2002], Dziduch (1990)
Dziduch (1990) - The onus is upon the Crown to disapprove a plea of self-defence.
The facts: Accused was convicted of malicious wounding. He was stealing a car and was confronted by the owner, a scuffle broke out and the accused stabbed the victim.
The decision: The onus is upon the Crown to disapprove a plea of self-defence. It is for the crown to establish that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did.
5.0 Crimes Act ss418-420, 422
418 Self-defence—when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
419 Self-defence—onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt that the person did not carry out the conduct in self-defence.
420 Self-defence—not available if death inflicted to protect property or trespass to property
This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.
422 Self-defence—response to lawful conduct - Thomas (1993)
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or
(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.
6.0 The general defence
Zecevic (1987)
The Facts: The appellant and the deceased occupied adjoining units and during an argument, the deceased stabbed the appellant. The appellant then attained a gun, then returned and shot the deceased at his unit. Convicted of Murder and Self defence was withdrawn by the trial judge.
Held: The test to be applied is whether the accused believed upon reasonable grounds that his actions were necessary in self-defence.
- The use of excessive force by the accused in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter if there were no reasonable grounds for that belief.
“…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.”
“Stated in that form, the question is one of general application and is not limited to homicide”
Kurtic (1996) - Courts held that based on the subjective and objective test, the accused has no basis of self-defence.
The judge went on to say:
"I find the accused demonstrated an acute awareness of the disproportionate nature of the attack…..
I am satisfied beyond reasonable doubt that the accused did not believe, on a purely subjective test, that his response was reasonably proportionate to the limited actions of the victim.
I am satisfied beyond reasonable doubt that there was no reasonable belief held by the accused that he was threatened by any form of physical violence. I have come to that view on a mixture of objective and subjective criteria operating on the mind of the accused at the relevant time.
Having come to that conclusion, no question of self-defence arises."
That was sufficient to reach the ultimate conclusion that the Crown had established the appellant's guilt of the offence charged.
Conlon (1993) - Reasonable grounds for the accused’s belief as to what conduct was necessary in self-defence.
Facts: The accused caught two men stealing his marijuana plants. He was chased into the house & assaulted by the two men, but broke free & armed himself with a rifle. As the men fled, the accused shot at them, instantly killing one, then killing the other after further clubbing & stabbing him. There was evidence that at the time, the accused suffered an abnormality of the mind & was under the influence of alcohol & marijuana.
Decision: Per Hunt J - It is the belief of the accused & not that of the hypothetical reasonable person in the position of the accused, which must be reasonable for self-defence to be established.
Court must take into account those personal characteristics of this particular accused which affect his appreciation of the gravity of the threat & the reasonableness of his response. Voluntary intoxication and the accused’s schizoid personality were both examples of such personal characteristics. Legislated against by s. 428F of Crimes Act - reasonable person is not intoxicated
Conlon represented the common law position on the assessment of reasonable grounds for the accused’s belief as to what conduct was necessary in self-defence, it does not represent the position with respect to a “reasonable response” under s 418
Osland (19980 - Batter wife syndrome as consideration for self defence.
Decision: The test may not be what would provoke the ordinary person, but what would influence the battered woman.
Expert evidence on the abusive relationship may help establish the gravity of the provocation. It may also help explain the heightened awareness of the accused of the risk of death or serious injury, & the need to avoid that risk, in relation to self-defence.
The history of the relationship may be relevant to establishing whether the woman’s belief that defensive force was necessary was reasonable & that she had no alternative but to take the victim’s life.
Viro (1978) - Although there is no legal requirement that the person seeking to defend themselves against a charge of murder or assault on the basis that they acted in self defence have retreated as far as was practicable in the face of the attack, the failure on D’s part to retreat may in appropriate cases mean that D’s conduct by way of self defence was not subjectively reasonable, objectively reasonable, or both of these.
7.0 The Partial Defence
If you fulfill the subjective tests but not the objective tests this may not be enough to result in an acquittal but may result in the murder charge being downgraded to manslaughter. - s421
Zecevic - Deane & Gaudron JJ, in separate judgments considered that where a person had an honest but unreasonable belief (force) that it was necessary to kill in self defence, then the result should be manslaughter. This view is reiterate in s421 of the Crimes Act.
OR
Zecevic - The use of excessive force by the accused in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter if there were no reasonable grounds for that belief. This view is reiterate in s421 of the Crimes Act.
421 Self-defence—excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter