Self Defence - Statutory - Bench Notes PDF

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Summaries on various cases, legislation and key areas to be revised in the final exam....

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8.2 - Statutory Self Self-Defence -Defence (Pr (Pre e - 1/11/14) and Def Defe ensive Ho Homicide micide1 Commencement and R Repeal epeal Informatio Information n 1. Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was altered by the passage of the Crimes (Homicide) Act 2005, which introduced two statutory self-defence provisions into the Crimes Act 1958: one for use in murder cases (s9AC) and the other for use in manslaughter cases (s9AE). The Act also introduced a new offence of "Defensive Homicide" (s9AD). 2. The provisions of the Crimes (Homicide) Act 2005 commenced operation on 23 November 2005, and apply to offences committed on or after that date (Crimes Act 1958 s603). 3. If the date of the victim’s death differs from the date on which the actus reus was committed, the relevant date for determining whether the provisions of the Crimes (Homicide) Act 2005 apply is the date of death (R v Gould (2007) 17 VR 393; [2007] VSC 420). 4. Subdivision (1AA) of Division 1 of Part I of the Crimes Act 1958 (which includes ss9AC, 9AD and 9AE) was repealed by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 on 1 November 2014. 5. This topic therefore applies only to offences committed between 23 November 2005 and 1 November 2014. For self-defence cases in which the offence is alleged to have been committed on or after 1 November 2014, see Statutory Self-Defence..

Application of Statutor Statutory y Provisi Provisions ons 6. Although Crimes Act 1958 s9AB states that the statutory self-defence provisions only apply to the "relevant offences" of murder, manslaughter or defensive homicide, it has been held that they also apply to attempted murder (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315).

Re Replacement placement of Common La Law w Se Self lf lf-Defence -Defence 7. Where it applies, this statutory defence has replaced the common law defence (Babic v R (2010) 28 VR 297; [2010] VSCA 198). Consequently, common law self-defence is not available when:  The accused is charged with murder, manslaughter, defensive homicide, attempted murder or attempted defensive homicide; and  It is alleged that the death occurred on or after 23 November 2005. 8. However, common law self-defence may be raised when: 

The accused is charged with an offence other than the homicide offences listed above, and such offence was alleged to have been committed before 1 November 2014; or

The accused is charged with one of those homicide offences listed above, and such offence, was alleged to have been committed before 23 November 2005. 9. See Common Law Self-Defence for information concerning the common law defence. 

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This document was last updated on 8 December 2015

When to Charge th the e Jury about Self Self-Defence -Defence 10. The judge must direct the jury about self-defence if the accused indicates that selfdefence is in issue or if the judge considers that there are substantial and compelling reasons to direct the jury about self-defence in the absence of a request (Jury Directions Act 2015 ss14-16). See Directions under Jury Directions Act 2015. 11. At common law, the judge was required to instruct the jury about self-defence if there was evidence on which a reasonable jury could decide the issue favourably to the accused (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518). 12. The issue of self-defence could be held to arise if there was any evidence from which the jury might infer that the accused acted in self-defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361). 13. To see if there was any such evidence, a judge could look not only to the direct evidence, but also to whether a circumstantial case could fairly be made out to support the defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361). 14. At common law, if there was sufficient evidence to raise the possibility of self-defence, the trial judge was required to leave the issue to the jury even if the judge considered the defence to be “weak or tenuous” (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Muratovic [1967] Qd R 15; R v Kell & Dey (Ruling No. 1) [2008] VSC 518). 15. If there was sufficient evidence to raise the possibility of self-defence, the judge was required at common law to instruct the jury about it, whether or not the defence is raised by the accused (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518). 16. Where there was sufficient evidence to raise the possibility of self-defence, the judge was required to instruct the jury about it even if the factual basis for the defence was inconsistent with the accused’s version of events at trial (R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518). 17. These common law principles may be relevant to the operation of the residual obligation to give directions under Jury Directions Act 2015 s16, but must be read in light of the whole of Part 3 of the Act.

Onus of Proof 18. Once the question of self-defence is put in issue, the onus is on the prosecution to prove that the accused did not act in self-defence (Babic v R (2010) 28 VR 297; [2010] VSCA 198; Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; Virov R (1978) 141 CLR 88; Dziduch v R (1990) 47 A Crim R 378).

Murder Self Self-De -De -Defence fence 19. Section 9AC provides that a person is not guilty of murder if he or she carries out conduct that would otherwise constitute murder "while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury." 20. Although this provision appears to suggest that it is for the accused to establish that he or she held the relevant belief, this is not the case. The onus is on the prosecution to prove that the accused did not hold such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198). 21. The accused will therefore not be guilty of murder if the jury:

Finds that the accused believed that it was necessary to do what he or she did to defend him or herself or another person from death or really serious injury; or  Is not satisfied that the prosecution has proven beyond reasonable doubt that the accused did not have such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198). 22. Unlike common law self-defence (see Common Law Self-Defence), section 9AC does not require the accused’s belief to have been based on reasonable grounds. It is a purely subjective test that focuses on the belief of the accused (Babic v R (2010) 28 VR 297; [2010] VSCA 198; R v Carrington (2007) 16 VR 694; [2007] VSC 422). 

23. This means that even if the prosecution can prove that the accused’s belief in the necessity of his or her action was unreasonable in the circumstances, if the accused genuinely held that belief he or she must not be convicted of murder. However, he or she may be convicted of defensive homicide (see "Defensive Homicide" below). 24. The statutory defence will fail if the accused did not believe that his or her actions were necessary to defend him or herself or another person from the infliction of death or really serious injury. This also differs from common law self-defence, which does not specify the type of harm that must be threatened before a person can raise self-defence. At common law, even if people defend themselves against less serious harm, or act to protect property or prevent crime, they may successfully raise self-defence if the jury finds they believed upon reasonable grounds that their actions were necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v McKay [1957] VR 560. See also Babic v R (2010) 28 VR 297; [2010] VSCA 198). 25. The Crimes Act does not define "really serious injury" for the purposes of s9AC. Although it has not been determined, it seems likely that it can include psychological injuries as well as physical injuries. It will be for the jury to decide whether what the accused was threatened with was an "injury", as well as whether that threatened injury was "really serious". 26. As s9AC involves a purely subjective test, the jury should not consider what a reasonable or ordinary person would have believed in the circumstances, but what the accused believed (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Virov R (1978) 141 CLR 88; R v Conlon (1993) 69 A Crim R 92 (SC NSW)). 27. It does not matter if the accused’s belief was mistaken, as long as it was genuinely held (R v McKay [1957] VR 560). 28. If the accused was intoxicated at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary (R v Conlon (1993) 69 A Crim R 92 (NSWSC); R v Katarzynski [2002] NSWSC 613. See "Intoxication" below for further information). 29. The determination of whether the accused believed that his or her actions were necessary incorporates two questions: first, whether the accused believed it was necessary to defend himself or herself at all and, secondly, whether the accused believed it was necessary to respond as he or she did given the threat as s/he perceived it (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645). 30. In determining whether the accused believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required (R v Palmer [1971] AC 814; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Conlon (1993) 69 A Crim R 92).

31. The proportionality of the accused’s response to the harm threatened is just one factor to take into account in determining whether the accused believed that his or her actions were necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178; R v Carrington (2007) 16 VR 694; [2007] VSC 422). 32. There is no rule requiring the accused to retreat from an attack rather than defend himself or herself. However, a failure to retreat is a factor to be taken into account in determining whether the accused believed that what was done was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448). 33. If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then the test for self-defence will not be met. Factors such as a failure to retreat when possible or a highly disproportionate response might indicate an intention to use the circumstances for aggression or retaliation rather than for self-defence. 34. Circumstances of "family violence" can affect the accused’s determination of what is necessary (s9AH). See "Family Violence" below for further information.

Defensiv Defensive e Homicide Warning: The offence of defensive homicide is only available for conduct that occurred between 20 November 2005 and 1 November 2014. The offence of defensive homicide is not available outside that period. 35. As noted above, the "reasonableness" of the accused’s belief in the necessity of his or her actions is not taken into account when determining whether he or she acted in selfdefence. The focus is solely on whether the accused believed his or her actions were necessary (s9AC). 36. However, Crimes Act 1958 s9AD states that a person who kills in circumstances that, but for s9AC, would constitute murder will be guilty of the indictable offence of "defensive homicide" if he or she did not have reasonable grounds for his or her belief. 37. Sections 9AC and 9AD therefore create a scheme whereby people who kill in circumstances that would ordinarily constitute murder will not be convicted of murder if they genuinely, but unreasonably, believed their actions were necessary (or if the prosecution cannot disprove such a belief). However, they remain criminally responsible (though to a lesser extent) if the jury finds that the accused’s belief was not based on reasonable grounds. 38. Although s9AD refers to the accused’s "belief" in the necessity of his or her actions, that section does not only apply to cases where the jury positively finds that the accused believed that his or her actions were necessary. It also applies to cases where the prosecution fails to persuade the jury beyond reasonable doubt that the accused did not have such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198). 39. In such cases, the jury must focus on the accused’s asserted belief. To convict the accused of defensive homicide, they must find that, if the accused believed his or her actions were necessary to defend himself or herself or another person from the infliction of death or really serious injury, that belief was not held on reasonable grounds (Babic v R (2010) 28 VR 297; [2010] VSCA 198). 40. This element does not require the jury to determine whether the accused acted unreasonably in the circumstances. It requires the jury to determine whether there were no reasonable grounds for the accused’s belief that it was necessary to do what he or she did (R v Hendy [2008] VSCA 231).

41. This is not a test about what the hypothetical "reasonable person" might have believed in the circumstances, but about whether the accused had no reasonable grounds for his or her belief, in the circumstances as he or she perceived them to be ( R v Portelli (2004) 10 VR 259; [2004] VSCA 178; Virov R (1978) 141 CLR 88). 42. The accused’s belief will not have been based on reasonable grounds if it was not a belief which the accused might reasonably have held in all the circumstances (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Wills [1983] 2 VR 201). 43. In determining whether the accused’s belief was not based on reasonable grounds, the jury may take into account the following matters:  The surrounding circumstances (R v Wills [1983] 2 VR 201); 

All of the facts within the accused’s knowledge (R v Wills [1983] 2 VR 201);

 

The relationship between the parties involved (R v Hector [1953] VLR 543); The prior conduct of the victim (R v Besim [2004] VSC 169);

 

Circumstances of family violence (s9AH – see "Family Violence" below); The personal characteristics of the accused, such as:  Any deluded beliefs he or she held (Grosser v R (1999) 73 SASR 584; R v Walsh (1991) 60 A Crim R 419 (Tas SC)); 

Any excitement, affront or distress he or she was experiencing (R v Wills [1983] 2 VR 201);

The proportionality of the accused’s response (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178);  The accused’s failure to retreat (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448). 44. The accused’s intoxication should not be taken into account in determining whether his or her belief was based on reasonable grounds, unless it was not self-induced (s9AJ. See "Intoxication" below for further information). 

Manslaughter Self Self-Defence -Defence 45. Section 9AE provides that a person is not guilty of manslaughter if: he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be 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 – and he or she had reasonable grounds for that belief. 46. This provision substantially replicates the common law of self-defence, in that it involves both a subjective element (a belief by the accused that what he or she was doing was necessary) and an objective element (that the belief was based on reasonable grounds). See "Murder Self-Defence" above for a discussion of the subjective element, and "Defensive Homicide" above for a discussion of the objective element. 47. However, unlike at common law, s9AE restricts self-defence in the case of manslaughter to situations where people act to defend themselves or other people, or to prevent or terminate the unlawful deprivation of their liberty or the liberty of other people. It does not allow defensive force to be used for the protection of property or the prevention of other crimes (cf. R v McKay [1957] VR 560).

48. As the test for manslaughter self-defence differs from the test for murder self-defence, in murder cases that raise the possibility of a manslaughter verdict, it will be necessary to charge the jury separately about the requirements of each. See "Procedure for Charging the Jury about Statutory Self-Defence" below.

At Attempts tempts 49. Where the offence of attempted murder is alleged to have been committed on or after 23 November 2005 and before 1 November 2014, the statutory self-defence provisions in Subdivision (1AA) of Division 1 of Part I apply (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315; R v Carrington (2007) 16 VR 694; [2007] VSC 422). 50. Where the charge is attempted murder, and the issue of self-defence arises, the alternative verdict of attempted defensive homicide can be left to the jury (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315; R v Carrington (2007) 16 VR 694; [2007] VSC 422; but compare DPP v Ayyad (2014) 44 VR 346; [2014] VSC 629). 51. If the accused is charged with another offence, such as intentionally causing serious injury, in addition to attempted murder or attempted defensive homicide, it will be necessary to give multiple directions about self-defence. The jury will need to be charged about statutory self-defence in relation to the attempted murder or attempted defensive homicide charges, and common law self-defence in relation to any other charges (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315). 52. In such cases, a judge should consider how to accommodate the fact that the jury will be required to consider the less serious charge of attempted defensive homicide (maximum penalty level 4 imprisonment) before the more serious charge of intentionally causing serious injury (maximum penalty level 3 imprisonment) (R v Pepper (2007) 16 VR 637; [2007] VSC 234. See R v Carrington (2007) 16 VR 694; [2007] VSC 422 for an example of how the jury may be directed).

Defence ag against ainst Lawful F Force orce 53. Unlike at common law, the statutory defences of murder self-defence (s9AC) and manslaughter self-defence (s9AE) do not apply if the accused is responding to lawful conduct, and knows at the time of his or her response that the conduct is lawful (s9AF).

Accused as the Initia Initiall Aggressor 54. At common law, one of the factors to be taken into account in determining whether the accused was acting in self-defence was whether he or she had been the initial aggressor. However, there was no rule to prevent lawful self-defence when the accused originated the attack, as long as the original aggression had ceased to create a continuing situation of emergency that provoked a lawful counter attack on the accused. Initial aggression by the accused was part of the surrounding circumstances the jury was required to take into account in determining whether the accused believed it was necessary to act in self-defence or whether there were reasonable grounds for that belief (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).

55. Where it is alleged that the accused was the initial aggressor, the jury must consider all the circumstances as perceived by the accused, including, for example, the extent to which the accused declined further conflict, stopped using force, was defeated, faced a disproportionately escalated level of force in response, or attempted to retreat (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178; Ru...