Self Defence and the Syndromes

Self-Defence Legislation

s.418 – Crimes Act 1900

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,

(2) and the conduct is a reasonable response in the circumstances as he or she perceives them.
CRIMES ACT 1900 - SECT 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.

Crimes Act 1900 - SECT 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.
 
CRIMES ACT 1900 - SECT 421

Self-defence—excessive force that inflicts death

(1) This section>> applies if:

(a) the person uses force that involves the intentional or reckless infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,

(1) 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.

 
CRIMES ACT 1900 - SECT 422

Self-defence—response to lawful conduct

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.
CRIMES ACT 1900 - SECT 423>>

Offences to which Division applies

(1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section>>.

(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.

The effect of Zecevic is that the issue for the jury is whether the defendant believed on reasonable grounds that the resort to force was necessary in defence of himself/herself (a partly subjective and partly objective test); and the force that the defendant believed was necessary to use was reasonable in all the circumstances, that is, according to the standards of a hypothetical reasonable person put in the defendant's place (an objective test).

The person's actions on the basis of their belief will still have to be reasonable, but the belief itself is totally subjective. The common law in NSW under Zecevic insisted on some objective danger existing before self defence could apply.

The codified outcome effected by the Act has the effect of enabling defendants to rely on self-defence if they believed their conduct was necessary (even if they were wrong), so long as the response was objectively proportionate to the situation (as they perceived it).

a) whilst the Act excludes self-defence if a defendant uses force that intentionally or recklessly inflicts death for the purposes of protecting property or preventing a criminal trespass, the Act does not exclude self-defence in these circumstances if the defendant uses force that inflicts really serious injury. (s420)

(b) the Act reduces murder to manslaughter in the case of excessive self-defence, that is, in circumstances where a defendant uses force that inflicts death which is not a reasonable response in the circumstances, but where the defendant believed the conduct was necessary to defend himself or herself or another person or for preventing or terminating unlawful deprivation of liberty. (s421).

· The lawful use of force by a person to protect themselves, another person or property

· Provides a complete defence to criminal liability (homicide or assault) or partial defence to murder in case of excessive force (Crimes Act changes position from Palmer to Howe and Viro)

· Evidentiary burden rests on the defendant to raise the issue, then the prosecution must prove beyond reasonable doubt that self-defence was not necessary

Two limitations to self-defence:
i) the use of force must be necessary in the circumstances
ii) the amount of force used must not be excessive in the circumstances

· Viro (1978) (High Court)

Facts: V and G supply heroin to R and then rob him. R slashes at them with a knife. Then V gets a knife and stabs R in heart and kills him
Decision: Mason J set out a 6-point formulation based on Howe (1958) - HCA: where threat of death or GBH to accused is in question and issue of SD arises, task for jury is

1. (b) “reasonably believed” means what accused himself might reasonably believe in all circumstances in which he found himself. NOT what reasonable person believed.

3. consider whether force in fact used by accused was reasonably proportionate to danger

5,6. If more force used, verdict is either murder or m/s depending whether accused believed that the force used was reasonably proportionate to the danger – if jury not satisfied beyond reasonable doubt that accused did not have belief – verdict will be m/s à if not then murder

Court held that excessive force used in self-defence operated as a partial excuse & reduced liability for murder to manslaughter. (Now Crimes Act 1900 – ss418-423)

Murphy J - recommended abolishing the objective test as it is quite unrealistic introducing similar problems as in provocation (see Moffa (1977). Considerations such as excessive force, proportionality and failure to retreat should not be conclusive but decide whether accused was defending himself.

Overruled by Zecevic (1987). But some of its principles seem to reappear in the new amendments to the Crimes Act 1900.

Zecevic (1987) (High Court)

Facts: The defendant & deceased occupied adjoining units in a block of flats. After an altercation between the two men, the deceased stabbed the defendant & threatened to blow his head off. The defendant then obtained a loaded gun from his unit & returned to the deceased’s flat & shot him.
Decision: Zecevic convicted of murder.

Question is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did.

If he had that belief & 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.

Both the subjective & objective elements must be satisfied.

The whole of the circumstances must be taken into account & the degree of force used (whether it is proportionate to the violence faced) may be part of those circumstances.

If the accused is the original aggressor & induced or provoked the assault, self-defence to the latter assault will
be available if the initial aggression had ended & the accused then formed the view that any self-defence taken was reasonably necessary to defend himself against the retaliatory assault.

No requirement for the accused to show that he tried to avoid the situation by retreating before attempting to defend himself.

The original attack need not be unlawful. The weakness here was that Zecevic went back to his own flat after the deceased had threatened him & so after an interval of time had elapsed. Self defence should be an immediate response to an imminent & immediate threat of danger.

Zecevic still relevant to the subjective test

Conlon (1993) (Supreme Court of NSW)

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 à reasonable person is not intoxicated

Kurtic (1996)

What does new legislation do to Zecevic and Conlon?
 
R v Katarzynski [2002] (9 July 2002) per Howie J

The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are:
(1) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them.
 
The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
 
The current provision is not concerned with whether the accused’s belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief.
 
The MCC removes the objective element of the test as to what the defendant perceived the danger to be. This represents the common law before the case of Zecevic v DPP (Vic) (1987). It means that a person who really thought they were in danger, even if they were mistaken about that perception, may be able to rely on self-defence for their actions. The person's actions on the basis of their belief still has to be reasonable, but the belief itself is totally based on their circumstances as the person perceived them to be. (New legislation moves into a more subjective field post-Zecevic)

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

It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious that some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case.

Jury must take into account the accused’s intoxication when considering whether he might have believed that it was necessary to act as he did in defence of himself and when considering the circumstances as he perceived them, but not when assessing whether his response to those circumstances was reasonable.
 
Battered Woman Syndrome

A pattern of behaviour in domestic relationships where repeated acts of violence on the part of the male abuser, alternating with phases of kindness & loving behaviour, leave the battered woman in a psychological state of learned helplessness characterised by extreme passivity & submissiveness

Where a battered woman kills her abuser and pleads self-defence, the courts have found admitting evidence of BWS problematic because:
i) there is rarely any evidence of aggression by the abuser immediately before the woman’s act of violence
ii) there is a difficulty in accepting whether the woman’s lethal response is proportionate to the abuse

In recent years there has been an increased awareness & sympathy for battered women

BWS is not a defence in itself, but evidence of BWS may be admitted to support a defence of provocation, duress or self-defence

Lavallee (1990) (Supreme Court of Canada)

Facts: Accused killed her partner after repeated periods of physical abuse, & on the occasion in question, a threat of further violence to come.
Decision: Evidence of BWS admitted.

Question was not what an outsider would have perceived as a threat, but what the accused reasonably perceived in relation to the nature of the threat she faced.
She did not forfeit her right to self-defence simply by staying in an abusive relationship.

· Runjanjic & Kontinnen (1991) (Supreme Court of SA)

Facts: The defendant shot & killed her defacto whilst he slept. The defendant lived with the deceased & claimed that he had abused her over many years & that on the night of the shooting he had threatened to kill her. She had been hospitalised ten times in two years as a result of his beatings.
Decision: Evidence of BWS was admitted. She was acquitted of murder.

Expert evidence on BWS was required because severe domestic violence is outside the ordinary experience of most jurors.

Such evidence is relevant to determining:
i) whether the defendant subjectively believed that it was necessary to use such force against the deceased
ii) whether the defendant’s belief was reasonable

Osland (1998) (High Court)

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.

Professor Stanley Yeo - many woman who remain in violent relationships do so not just because they have BWS, but because of more mundane social factors (such as financial dependence, lack of sympathy from the family or social services

There are clear advantages for the medicalisation of a battered woman’s experiences & behaviour into a “syndrome”

The term "syndrome" cloaks the social & psychological explanation of the defendant's conduct in a veneer of medical respectability which the jury is more likely to accept.

However, in doing so, women who do not exhibit these symptoms will not be able to convince a jury that their reactions were reasonable