LAW1121 - Notes Chapter 14 PDF

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LAW1121 – Criminal Law Chapter 14 – Self Defence and Other Defensive Force

The range of defences 

Two key principles have shaped the development of the common law and the design of the Codes on the use of defensive force: - Any force used should be necessary to repel the attack; - Any force used should be a reasonable response to the attack.

Defence of persons in Queensland  

The Code (Qld) ss 271-271 prescribe conditions for the use of force to defend oneself against assault. The purpose of using the force must be to defend against the assault. The law of selfdefence does not permit an act of retaliation or revenge against an assault.

The requirement for an assault  

There must be some ‘bodily act or gesture’ accompanying the threat to constitute an assault under the Code; words alone cannot suffice. In the case of an insane attacker, the defence of prevention of crime under the Code s 266 (Qld) may be available as an alternative. This defence is expressly extended to cover the use of force to prevent violence by a mentally ill person or person with a forensic disability.

Self-defence against an unprovoked assault        

Code s 271 (Qld) self-defence First part establishes the test for a general self-defence; the force must be used ‘reasonably necessary’ to repel the assault. When intended to cause death or GBH s 271 is excluded. Second part establishes the test for a defence of self-defence involving the use of force intended or likely to cause death or GBH. The person must reasonably apprehend death or GBH from the attack and must also believe on reasonable grounds that there is no other way of avoiding these injuries. ‘Reasonably necessary’, a rough measure of necessity is required but that is all. A reasonable belief is not necessary one which would have been held by a reasonable person. Personal characteristics of the accused could be taken into account in determining what might have been reasonable, including intellectual impairment and mental disorder, although not intoxication.

Self-defence against a provoked assault 

A person who is subject to s 272(1) (Qld) cannot use any defensive force unless the assault is sufficiently serious to raise a reasonable apprehension of death or GBH and to induce a reasonable belief that there is no other way of avoiding these injuries.

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Same test as that for the use of force intended or likely to cause death or GBH on defence against unprovoked assault: s 271(2) (Qld). If a provoked assault is not his serious, it must be tolerated. Protection under s 272(1) (Qld) does not extend to a person who has previously tried to kill or cause GBH to the attacker, either in the original provocation or at some intermediate time. Nor in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as possible.

Killing for preservation in an abusive domestic relationship  

There is a special form of defence of self-defence in Queensland which does not require an assault before force can be used. Code s 304B (1) (Qld).

Defence of property   

ss 267, 274-275 (Qld). Greater force can be used in defence of a dwelling than in defence of other kinds of property: The defence under s 23 will be available in the event that the harm, was neither intended or foreseeable.

Mistake  Three kinds of mistake can be made about the use of defensive force: 1. A mistake about the existence or nature of an attack or about the identity of the attacker; 2. A mistake about the necessity of a particular response; 3. A mistake about the reasonableness of a particular response.  Code (Qld) s 271(2) requires a ‘reasonable apprehension’ of death or GBH and a belief held ‘on reasonable grounds’ that the force used is the only way of repelling the attack.  Code (Qld) s 267 (defence of a dwelling) require a belief on reasonable grounds that the force used is necessary. Excessive force  

Code (Qld) s 283 provide that any such excessive force is unlawful. The only exception is where excessive force is inflicted under a reasonable belief in its necessity; then the rules relating to mistake may still make a defence available.

Commonwealth offences 

Criminal Code (Cth) s 10.4.

Evidentiary and persuasive burdens 

The accused carries the evidentiary burden to put a defence in issue if the case for the prosecution has not already done so; the prosecution then assumes the persuasive burden to exclude the defence....