Self-Defence On-Call Preparation PDF

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[FINAL] ONCALL SELF-DEFENCE -

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Acting in self-defence means is to act lawfully Thus, it is a complete defence to criminal liability. The defendant has the evidentiary burden of raising reasonable doubt to the jury, as to whether or not he or she acted in self-defence. But the prosecution has the persuasive burden to negative the defence. Extends to defence of other persons, property, prevention of serious crime, effecting lawful arrest, preventing unlawful deprivation of liberty and preventing or terminating trespass Development of subjective test: Reasonably believed – not what a reasonable man would have believed, but what the accused might reasonably believe in the circumstances (Viro)  Belief on reasonable grounds (Zecevic)  Genuine belief (s 418)

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OVERALL TEST 1. Is there a reasonable possibility that the Accused believed that his or her conduct was necessary in order to defend himself or herself? a. Subjective test  No need for a reasonable ground in support of the belief b. HOWEVER, the Accused must genuinely believe that it was necessary  Colosimo 2. Is there also a reasonable possibility that what the Accused did was a reasonable response to the circumstances as he or she perceived them? a. A mix of subjective and objective assessments b. Requires the response of the accused to be objectively proportionate to the situation in which the accused subjectively believed he or she faced  Katarzynski

Statutory Provisions S 418 – When available (1) Person not criminally responsible for offence if conduct constitutes self-defence (2) Carries out conduct in self-defence if the person believes the conduct is necessary and the conduct is a reasonable response in the circumstances as they perceive them to: (a) Defend themselves or another person (b) Prevent or terminate unlawful deprivation of their liberty or another person (c) Protect property from unlawful taking, destruction, damage or interference (d) Prevent criminal trespass to any land or premises or to remove the trespassing person S 419 – Onus of Proof Prosecution has onus of proving beyond reasonable doubt, that the accused did not carry out the conduct in self-defence

S 420 – Not available if death inflicted to protect property or trespass to property Self-defence does not apply if there is intentional or reckless infliction of death resultant from: (a) Protection of property (b) Preventing criminal trespass or to remove a person committing the trespass S 421 – Excessive Force that Inflicts Death (1) Only applies if: (a) Person uses force that inflicts death (b) Conduct is not reasonable 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 (d) To prevent or terminate the unlawful deprivation of their liberty or another person (2) Person not criminally responsible for murder but guilty of manslaughter instead if the person is otherwise criminally responsible for manslaughter S 422 – Response to Lawful Conduct Division is not excluded merely because: (a) The conduct to which the accused responds to, is lawful (b) The other person carrying out the conduct to which the person responds is not criminally responsible for it Second Reading Speech in 2002 - Clarified and simplified the law of self-defence - Up until 2002, the courts followed common law which was convoluted - The amendment removes the objective element of the test as to what the defendant perceived the danger to be, potentially allowing a person who really thought he was in danger (even if he was mistaken about that perception), to rely on the defence. This reflects the common law before Zecevic - Essentially, a defendant who actually believed it was necessary to do what he did to repel an attack, even if he was wrong about that perception, may seek to rely on selfdefence as long as it was a reasonable response in the circumstances as perceived by the defendant.

Development of Common Law Doctrine R v Howe (1958) 100 CLR 448 - FOR ESD Facts - The deceased touched the accused’s private parts - Accused told him that he was not the chap to do such a thing - Both exited the car, but then the deceased ran at him and grabbed his shoulders, to which Howe responded by running away - He then, in anger, grabbed his gun and shot the deceased - In his mind, he thought that he was about to be sexually attacked

Rule -

Said that excessive force self-defence which resulted in the death of the victim, the accused is guilty of manslaughter rather than murder

Palmer v R [1971] AC 814 (UKPC) - AGAINST ESD Facts - The appellant and two others were chased by three men after they stole some marijuana - The three men had sticks and stones - During the chase, the appellant fired shots and one died - Submitted self-defence Rule - Partial defence was rejected by the Privy Council on the basis that the proportionality of the response was an essential element in self-defence and there should be no halfway point defence available if excess force was used Viro v R (1978) 141 CLR 88 - FOR ESD Facts - Defendant convicted of murder in NSWSC - Was high on heroine and claimed self-defence - Argued that the trial judge erred in directing the jury to Palmer (against ESD) and not to Howe (for ESD). Rule -

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Majority declined to follow Palmer, and held that the High Court is not bound by the decisions of the Privy Council where there is inconsistency in previous decisions made by the Court. Hence, ESD was ruled as available. Barwick CJ and Gibbs J preferred Palmer But Gibbs J reluctantly agreed with the majority Mason J followed Howe and despite the uneasiness, his 6-step test proved to be the prevailing ratio 1. A) Jury to consider whether, at the time of the killing, the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm, was being made or imminent B) ‘Reasonably believed’ is not what a reasonable man would have believed, but what the accused himself might reasonably believe in all circumstances in which he found himself 2. If jury is satisfied BRD that there was no reasonable belief, then no self-defence can be made out 3. If not satisfied BRD, must consider whether the force used by the accused was reasonably proportionate to the danger which the accused believed that he had faced 4. If jury is not satisfied BRD that more force was used than was reasonably proportionate, then it should acquit the accused

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5. If jury is satisfied BRD that more force was used, then its verdict should be either manslaughter or murder, depending upon the final question for the jury: ‘Did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?’ 6. If the jury is satisfied BRD, that the accused did not have such a belief, then the accused is convicted of murder. If it is not satisfied BRD, then it will be manslaughter Culpability Aickin J said that there is a distinction in the culpability of an accused who has killed having formed the requisite intention without a mitigating circumstance. And between one who, in response to a real or a reasonably apprehended attack, strikes a blow in order to defend himself, but uses force beyond that required by the occasion and thereby kills the attacker

Zecevic v DPP (1987) 162 CLR 645 - AGAINST ESD Facts - Victim rented a unit from the defendant - Defendant became annoyed with the victim who kept leaving the security gates of the unit unlocked - After a heated exchange, the defendant stabbed the tenant - Fearing that the tenant was about to get his gun, the defendant went to get his own gun and shot and killed the tenant - Appellant convicted of murder after trial judge withdrew self-defence as an available defence from the jury - Because the only inference was that the appellant did not reasonably believe that an unlawful attack which threatened him was being or was about to be made upon him - Appellant subsequently argued that there is no objective element in the first limb of the test (i.e., the requirement that the accused’s belief be reasonable) Rule - Undertook major reconsideration of self-defence and excessive self-defence - Mason CJ conceded that o Made a mistake in his 6-step overly complex judgment and had mistakenly said that the onus of proof lies on the prosecution o But said that Viro and Howe accord best with acceptable standards of culpability o However, finally said that the joint judgment of Wilson Dawson and Toohey JJ in Viro are the right laws - Wilson, Dawson and Toohey JJ followed Palmer and abolished excessive self-defence o No set words or formula o But, finalised with saying that the question to be asked is whether the accused believed upon reasonable grounds that it was necessary in selfdefence to do what he did o If there was a reasonable belief, then the jury is left in reasonable doubt about the matter, entitled to acquittal. o Not limited to homicide o Abolished the partial defence of excessive self-defence - Strong dissent by Deane J

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o Believed that abolition of the partial defence was unjust and that it would be wrong to retrospectively abolish a defence. He cited Mason J in Viro: ‘the moral culpability of a person who kills another in defending himself but who fails in a plea of self-defence only because he falls short of the moral culpability ordinarily associated with murder. Gaudron J o Agreed with the joint judgment, but didn’t agree with the abolition of excessive self-defence where self-defence failed only be reason of the accused using more force than believed on reasonable grounds to be necessary

Relevant Case Law R v Katarzynski [2002] NSWSC 613 Facts - Between 2 men in Liverpool - The deceased was shot by the accused after arguments ensued - Offender claimed self-defence and was intoxicated Rule - Recognised that at common law, there were three elements for SD: a) Accused believed that he was called upon to defend himself b) Conduct was necessary in order to defend himself c) Reasonable grounds for each of these beliefs - The Test - Question 1: Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself? o Subjective test - Question 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 o Objective test but based on subjective belief from first limb - Ascertaining Subjective Belief - Clarified common law (Zecevic) and statute  that it is sufficient if the accused holds a genuine belief (subjective) per the provisions - Matter for the jury to decide what circumstances to take into account to assess whether the response was reasonable - The jury is not assessing the ordinary or reasonable person, but rather the response of the accused - So matters such as age, his or her gender, or the state of his or her health may be regarded by the jury for the subjective test of belief. - Disproving Self-defence - The Crown can disprove self-defence by proving BRD that either the accused didn’t genuinely believe that it was necessary to act in the way he or she did. - Or, that the conduct of the accused was not a reasonable response to the danger as he or she perceived it to be.

Colosimo v DPP [2006] NSWCA 293 Facts - In this case, the Accused was the aggressor and raised self-defence // Is it available to him if he wants to fight? - Three brothers were convicted after being involved in a fight at Star City - They were intoxicated and were asked to leave by security - The situation escalated and one of the Accused invited the security to fight - The security then pushed the Accused towards the exit and a fight ensued - Self-defence was argued on the basis that they were being deprived of their liberty Rule - Supreme Court previously followed Nguyen (1995) and rejected the submission for self-defence, on the grounds that it is not available to the aggressor if he wanted to fight - The NSWCCA also rejected their submission, but for a different reason - The Accused being an aggressor does not preclude him from self-defence, however, it is relevant as to whether the Accused could have believed that their conduct was necessary for defence o Citing Zecevic, ‘If A is the original aggressor, they can still claim SD if it can be shown that their original aggression had ceased to the extent that they reasonably formed a belief as to the need to act in self-defence’ o If a person believes that any risk of harm can be dealt with by withdrawing, then that belief would be inconsistent with a belief that assault was necessary for defence - Further, the court applied Viro, in that a person may not create a continuing situation of emergency and provoke an attack upon himself, yet claim upon reasonable grounds, the right to defend himself against that attack o i.e., a person can’t just start a fight, then continue to provoke the victim, and then claim self-defence in retrospect. On the facts 1. Accused were asked to leave, but refused, security officers could subsequently use reasonable force to carry this out 2. No evidence to suggest that the officers went beyond what was required  no attack or abuse suffered by the Accused 3. Even if the initial assault was inflicted by security, it could not reasonably give rise to a belief that the accused needed to resort to self-defence by way of assault 4. The actual pushes and blows could not reasonably have been believed to be necessary in this case

The Objective Test in Self-Defence R v Conlon (1993) 69 A Crim R 92 (NSWSC) Facts - Dispute about stealing marijuana plants - The accused disturbed the two men who were stealing the plants - The two men assaulted him - The accused shoots them and kills one of them, and then hits the other over the head with a club and stabs him and also dies - The accused was intoxicated from alcohol and marijuana

Rule Hunt CJ: - Argued that the Accused perception of the position in which he found himself is reduced by a degree of intoxication. - Mixed objective and subjective nature of the assessment as to whether the accused’s belief was based on reasonable grounds means that: o Personal characteristics of the accused which might affect his appreciation of the gravity and; o His reasonableness of his response to that danger must be taken into account - Therefore, voluntarily induced intoxication of the accused should be taken into account insofar as it may have affected either his appreciation of the gravity of the threat or the reasonableness of his response to the danger Opposing view: R v Katarzynski [2002] NSWSC 613 Howie J: - It is up to the jury to decide what matters it should take into account - The jury is not assessing the response of the ordinary or reasonable person, but the response of the accused - Therefore, some personal attributes are ostensibly relevant o Matters such as age, gender, state of health may be regarded o Whether or not other characteristics are to be regarded will be dependent on the case - HOWEVER - McCullough – illogical to contemplate ‘that a person’s experience of judgment might be unreasonable if he was sober, but reasonable because he was drunk’ - Decided that intoxication should be taken into account when considering whether the accused believed it was necessary to act in self-defence and when considering the circumstances as he perceived them. - HOWEVER, it is not relevant when deciding whether his response to those circumstances were reasonable R v Kurtic (1996) A Crim R 57 (NSWCCA) - There are limits to the characteristics which could be taken into account. - 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/state of mind of the person and that of a reasonable person who is not intoxicated (s 428F) - Test of self-defence is whether the response was reasonable in the circumstances as the accused had perceived them (not a reasonable person test).

Excessive Self-Defence -

Much back and forth since Howe, but Ryan and Coulter v R [2013] is the binding law Essentially, there is a partial defence for the reduction of murder to manslaughter in the case of excessive self-defence This occurs when the prosecution negatives the normal SD test, by proving that the response was not reasonable in the circumstances that the accused perceived them There needs to be a subjective belief that the force was necessary

Ryan and Coulter v R [2013] NSWCCA 208 Facts - R and C paid a hitman to kill J (R’s husband) - Defendants claimed that it was necessary to kill him because of his violence to Ryan’s daughter - Claimed excessive self-defence under s 421 - Question: Can an accused bring up excessive self-defence even if they were not the person who used the force to kill? - Was argued for the defendant, that the provision can extend derivatively to the person who aids and abets the person who used the fatal force Rule - Simpson J dismissed the appeal, which was argued that the trial judge had erred in refusing to leave excessive self-defence under s 421 to the jury - Held that the three conditions that need to be proven BRD: o Person used force that caused death o Use of force was not a reasonable response in the circumstances as the accused person perceived them o (Less obvious)  That the person did not subjectively hold the relevant belief that the conduct was necessary for self-defence - Therefore, in light of the evidentiary burden, the relevant question was whether evidence taken in favour of Coulter, could allow the jury to construe a reasonable possibility that she believed that her conduct in participating in the murder of was necessary in order to defend the other persons - In this case, there was no evidence to suggest that she held this requisite belief that her conduct of hiring a contract killer, was for defensive purposes. If Coulter had given evidence, then the court would have to leave the question to the jury. - Was also said that the notion for a court to consider contract killing as manslaughter is repugnant and abhorrent - HOWEVER, was acknowledged that a future case may be questionable depending upon the facts and evidence provided o In this case, there was just insufficient evidence to draw a conclusion that she held a genuine belief that her participation in murder was necessary

Nexus between the offence and the threat Burgess and Saunders v R [2005] NSWCCA 52 Facts - Appellants painted the words ‘No War’ on the Opera House - Submitted that the painting was intentional and there was damage, but they raised self-defence, either of themselves or others per s 418 - The questions at appeal was whether it was reasonably possible that they had a belief that what they did was necessary in self-defence and whether it was a reasonable response to that belief - It was argued by the defendants that the trial erred in not raising this question to the jury and instead decided that the evidence did not support a conclusion that there

existed the necessary nexus between the offence and the threat to produce selfdefence Rule -

There needs to be a relationship of a perceived attack and a reasonable defence to it in order to raise self-defence - If the judge determines that there is no way that the evidence can establish that there was a reasonable defence to a perceived attack, the defence should be prevented from going to the jury (i.e., there’s an evidentiary burden) - There is a requirement of ‘imminence’ in the nexus (i.e., the defence was proximate to the attack) - Blackmore DCJ o Needs to be a significant correlation between the act and the threat o Principal objective indicators:  Physical and Temporal relationship between the perceived threat and the action of the accused that was allegedly taken in response to the threat o This is to be taken on subjective grounds to prove the accused’s belief of necessity o If the threat was so far removed in time or place from the accused such that it could be said that their actions could not be said to...