LAWS 106 W4L Defences to Homicide PDF

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LAWS 106 W4L Criminal Law and Procedure (24/3/16) Interesting case: R v Dudley and Stephens (1884) Page 762 Self Defence Common Law -Based on the Zecevic Law of self-defence: ‘That you believed on reasonable grounds, that what you did, was necessary to defend yourself’ Statute -The Crimes (Homicide) Act 2005 -Applies to offences committed on or after 23 November 2005 -Defensive homicide and common law has now been abolished Purpose of New 2014 Amendment– Violence Protection a. In family violence situations, the woman is usually the weaker party and when women kill, they generally use weapons; b. ‘Immediacy of threat’: women often wait until man’s guard is down (sleeping); c. ‘Proportionality of response to threat’: on occasion woman kill in response to specific threat which is not of really serious injury; d. ‘Necessity of fatal action’: other available means of dealing with problem (leave, police) -In family violence cases, the harm a person is responding to does not need to be immediate and the person may use force that exceeds the harm of the immediate threat Second Reading Speech of The 2014 Amendment -New, statutory test for self-defence ‘Self defence will apply where a person believes his or her conduct is necessary in self defence, and that persons conduct is a reasonable response on the circumstances in which he or she perceives them’ -Don’t have to raise the question of belief, just has to be that the conduct is a ‘reasonable response’ (OBJECTIVE) Elements of Self Defence i Person; ii Believes that the conduct is necessary AND iii That the conduct is a reasonable response in the circumstances the person perceives them iv In cases of murder or manslaughter, IF the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury NOTE: Does not apply if it is a response to lawful conduct s 322L

Onus of Proof Crimes Act 1958 (Vic) s 322I -The accused must be able to ‘point to’ a piece of evidence to suggest that his/her actions where necessary to defend themself -The accused must point to something, to which the judge will approve, and then present the concept of self-defence to the jury -The prosecution must then prove beyond reasonable doubt that the action causing injury/death was unnecessary and not of the self-defence nature Evidence of Family Violence Crimes Act 1958 (Vic) s 322J (2) In this section – “Child” means a person who is under the age of 18 years; “Family member”, in relation to a person, includes – (a) A person who is or has been married to the person; or (b) A person who has or has had an intimate personal relationship with the person; or (c) A person who is or has been the father, mother, step-father or stepmother of the person; or (d) A child who normally or regularly resides with the person; or (e) A guardian of the person; or (f) Another person who is or has been ordinarily a member of the household of the person Self Defence Crimes Act 1958 (Vic) s 322K (1) A person is not guilty of 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— (a) The person believes that the conduct is necessary in self-defence; and (b) The conduct is a reasonable response in the circumstances as the person perceives them. (3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury. Family Violence and Self Defence Crimes Act 1958 (Vic) s 322M (1) Without limiting section 322K, for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person's conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if— (a) The person is responding to a harm that is not immediate; or (b) The response involves the use of force in excess of the force involved in the harm or threatened harm. (2) Without limiting the evidence that may be adduced, in circumstances where self-defence in the context of family violence is in issue, evidence of family violence may be relevant in determining whether— (a) A person has carried out conduct while believing it to be necessary in self-defence; or

(b) The conduct is a reasonable response in the circumstances as a person perceives them. Duress Crimes Act 1958 (Vic) s 322O (1) A person is not guilty of an offence in respect of conduct carried out by the person under duress. (2) A person carries out conduct under duress if— (a) The person reasonably believes that— (i) Subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and (ii) Carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (b) The conduct is a reasonable response to the threat. (3) A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct. (4) This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury. Family Violence and Duress Crimes Act 1958 (Vic) s 322P Without limiting the evidence that may be adduced, in circumstances where duress in the context of family violence is in issue, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress Sudden or Extraordinary Emergency Crimes Act 1958 (Vic) s 322R (1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency (2) This section applies if – a. The person reasonably believes that – i. Circumstances of sudden or extraordinary emergency exist; and ii. The conduct is the only reasonable way to deal with the emergency; and b. The conduct is a reasonable response to the emergency. (3) This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury Intoxication Crimes Act 1958 (Vic) s 322T (1) In this section— Defence includes self-defence, duress and sudden or extraordinary emergency; Intoxication means intoxication because of the influence of alcohol, a drug or any other substance. (2) If any part of a defence to an offence relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.

(4) If a person's intoxication is not self-induced, in determining whether any part of a defence to an offence relying on reasonable belief or reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. (5) For the purposes of this section, intoxication is self-induced unless it came about — (a) Involuntarily; or (b) Because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or (c) From the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or (d) From the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer. (6) Despite subsection (5), intoxication is self-induced in the circumstances referred to in subsection (5)(c) or (d) if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control....