Self-Defence

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The defence of self-defence absolves an accused from criminal liability if his otherwise criminal actions were done in self-defence. Actions done in self-defence are done lawfully and thus do not attract criminal responsibility. The defence is pleaded as follows:

  1. The accused raises self-defence by establishing an evidentiary burden.
    • To satisfy the evidentiary burden, the accused must show sufficient nexus between offence and threat - there needs to be a relationship of (perceived) attack and a reasonable defence to it (proximity is relevant): Burgess;Saunders.
  2. The prosecution must disprove, beyond all reasonable doubt, the possibility of self-defence: s 419. In order for self-defence to occur, the following requirements must be satisfied (s 418 (2)):
    1. Necessity of response - the accused believed that his conduct was necessary in order to:
      • (a) defend oneself or another person or
      • (b) stop/escape unlawful deprivation of liberty, or
      • (c) protect property from being taken/damaged/interfered with (not available if response resulted in death: s 420), or
      • (d) prevent criminal trespass or to remove a trespasser (not available if response resulted in death: s 420).
      • This is a subjective test. Things like intoxication can be taken into account: Katarzynski.[1]
    2. Reasonableness of response - the response of the accused was a reasonable response to the circumstances as the accused perceived them.
      • This is an objective test. Only certain characteristics can be taken into accounts: Kurtic.[2] Intoxication is not relevant: Katarzynski.[3]
    • The fact that the conduct to which the accused responded to was lawful, or that the person to whom the accused was responding to was not criminally responsible for himself are irrelevant: s 422.
  3. If the prosecution cannot disprove the above elements beyond reasonable doubt, the actions done by the accused bear no criminal responsibility (complete defence): s 418 (1).

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 598-629.

Common Law Doctrine

[4] The Defence of self-defence is based on the notion that to act in self-defence is to act lawfully. Therefore, the defence is a complete defence to criminal liability.

  • The onus falls on the prosecution to negative self-defence.
  • Principles of self-defence extend to:
    • Defence of other persons;
    • The defence of property;
    • The prevention of a serious crime; and
    • Effecting a lawful arrest.
  • The use of force is limited to situations where:
    • The defendant is faced with a threat which makes the use of force necessary; and
    • The amount of force used is not excessive in the circumstances.

Until 2002, (when a new Pt 11 was introduced into the Crimes Act), the common law principles applied in NSW. The history below puts these reforms into context.

The Recent History of Self-Fefence

[5] The following is a recent history of the development of self-defence and excessive self-defence:

  • In Howe,[6] High Court ruled that where an accused used an excessive amount of force in self-defence which resulted in the death of the other party, the accused was guilty of manslaughter rather than murder. This created the partial defence of excessive self-defence.
  • This partial defence was rejected by the Privy Council in Palmer,[7] on the basis that proportionality was an essential element in self-defence.
  • In Viro,[8] the majority declined to follow Palmer. The leading judgement of Mason J confirmed the partial defence of excessive self-defence and contained a six-point statement to explain the jury’s role.
    • Trial judges and appellate courts found the six-points difficult to explain to juries and apply in practice. Some confusion arose from the fact that Mason J had taken into account that the onus of proof lies on the prosecution and phrased some of the propositions in negatives and double negatives.
  • In Zecevic,[9] the High Court took the opportunity to give major reconsideration to self-defence and excessive self-defence.
    • Mason J acknowledged that his phrasing in Viro was overly complex and that he had been mistaken to take the onus of proof in account in his expression. He concluded that the joint judgement of Wilson, Dawson and Toohey JJ in Viro should be followed.
    • Wilson, Dawson and Toohey JJ followed Palmer and abolished the partial defence of excessive self-defence and formulated the test for normal self-defence as 'whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and 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.'
    • Deane J strongly dissented in Zecevic, believing that the 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 [or another person] but who fails in a plea of self-defence only because [of excessive force] falls short of the moral culpability ordinarily associated with murder.'

The Statutory Basis of the Defence

[10] The Crimes Amendment (Self-Defence) Act 2001 commenced operation in 2002; it inserted a number of provisions into Pt 11 of the Crimes Act 1900 and repealed the common law defence.

Sections 418-420 and s 420 of the Crimes Act 1900 (NSW) are the provisions relating to self defence.

  • s 418: availability of the defence.
    1. Actions done in self defence bear no criminal responsibility (complete defence).
    2. Actions are considered self defence if the conduct was a reasonable response in the circumstances, and was necessary to:
      • (a) defend oneself or another person or
      • (b) stop/escape unlawful deprivation of liberty, or
      • (c) protect property from being taken/damaged/interfered with, or
      • (d) prevent criminal trespass or to remove a trespasser
  • s 419: burden of proof.
  • s 420: not available if death inflicted to protect property or trespass to property.
    • Self defence is not available if it resulted in the intentional or reckless infliction of death and was necessary to merely to (as opposed to the other options above):
      • (a) protect property, or
      • (b) prevent trespass or to remove a trespasser.
  • s 422: response to lawful conduct.
    • Self-Defence is not excluded (ie, still applies) even if:
      • (a) the conduct to which the person responds is lawful, or
      • (b) the person to whom the defendant is responding to is not criminally responsible himself.

s 421 deals with excessive self-defence. It is extracted below:

(1) This section applies if:
     (a) the person uses force that involves the infliction of death, and
     (b) the conduct is not a reasonable response 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, 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.

Second Reading Speech Commentary

[11] The following is some commentary extracted from the second reading speech of the amendment act.

  • 'The purpose of the bill is to clarify and simplify the law as it relates to self-defence'.[12]
  • 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.
  • The bill follows the general approach laid down by the Model Criminal Code except for:
    • Reintroducing the law of excessive self-defence (this was considered appropriate because Australian law does not contain degrees of murder as separate offences and therefore manslaughter should apply).
    • Allowing for serious harm to be occasioned in the defence of property or criminal trespass (the Code did not permit either serious bodily harm or death in these circumstances; the amendment only followed the homicide provision).

Reform Proposals

[13] In 1991, the Victorian Law Reform Commission considered restoring excessive self-defence through legislation after Zecevic, but instead it concluded that the objective element of the self-defence test should be dropped (consistent with a focus on the accused’s actual state of mind and subjective culpability) and a new offence of culpable homicide introduced.

  • The same year, South Australia codified self-defence and created a variant of excessive self-defence which was 'entirely unworkable' and thus subsequently amended in 1997.
  • The 1993 Final Report of the Criminal Law Officers Committee[14] recommended against re-introducing excessive self-defence, calling the partial defence 'inherently vague'.
    • Under the recommendations made in the 1998 discussion paper, none of the partial defences to murder would be available in Australia.
  • In 2005, the Victorian Parliament created a new offence of defensive homicide, which was broadly similar to excessive self-defence.

The Objective Test in Self-Defence

[15] The new statutory defence in NSW imposes a different version of the objective test (s 418 (2)) to that imposed under the common law. The difference between the common law test as set out in Zecevic and the test under s 418 (2) was described by Howie J in Katarzynski:[16]

  • Under the common law both limbs of the test were subjective. Both the belief of the accused that he was called upon to defend himself and the conduct used was required to be reasonable.
  • Under s 418 (2) 'the first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time' and the 'second issue is determined by an entirely objective assessment of the proportionality of the accused’s response...'[17]
  • Therefore, the test is concerned with the genuine rather than 'reasonable' belief of the accused.

Characteristics of the Reasonable Person

As always, the issue arises regarding what characteristics of the accused may be taken into account in the objective test. The issue has only arisen in relation to intoxication and was discussed in Conlon,[18] which predates the introduction of the statutory defence:

  • There was a possibility that the accused’s perceptions of his situation were influenced by his intoxication from alcohol and marijuana.
  • The prosecution argued that the test was analogous to that of provocation and that, therefore, intoxication should not be taken into account (being a subjective feature of the accused).
    • However, the court held that they were not analogous because 'in self-defence, it is the belief of the accused, and not that of the hypothetical reasonable person in the situation of the accused, which has to be reasonable'.
  • Intoxication should be taken into account so far as it affected appreciation of the gravity of the threat and the reasonableness of the response to that danger, in determining whether the Crown had established that there were no reasonable grounds for either proposition.

An opposing view was expressed by Howie J in Katarzynski:

  • It is for the jury to decide which circumstances they take into account. 'Some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances'.
  • However, he rejected intoxication as a factor. He cited McCullough, with whom the court in Conlon had disagreed; it is illogical 'to contemplate the proposition that a person’s exercise of judgement might be unreasonable if he was sober, but reasonable because he was drunk'.
  • It would go against the principles of criminal responsibility to consider intoxication.

In Kurtic,[19] (a decision under the common law, pre-statute) Hunt J indicated that there were limits to the characterisitics which could be taken into account.

The Nexus Between the Offence and the Threat

The Court of Criminal Appeal considered the requirement of a nexus between the conduct and the threat and the circumstances under which the trial judge should leave the defence to the jury. This was considered in Burgess;Saunders:

  • There needs to be a relationship of (perceived) attack and a reasonable defence to it in order to raise self-defence. This can be seen as a 'nexus'.
  • 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 (ie, there's an evidentiary burden).
  • There is an requirement of 'imminence' in that nexus (ie, the defence was proximate to the attack).

Defence of Property

[20] The common law traditionally regarded defence of property as legitimate grounds for the use of reasonable force.

  • In McKay,[21] the accused, a poultry farmer who had been the victim of theft over a period of time, discovered an intruder in the act of stealing his chickens. He shot at the fleeing intruder, who died from the resulting wounds. McKay was charged with murder but a jury convicted him of manslaughter, with a strong recommendation for mercy. He received three years imprisonment.
  • In 1998, the Home Invasion (Occupants Protection) Act was passed, stating that the policy of the act was that “...citizens have a right to enjoy absolute safety from attack within dwelling-houses from intruders.” The Act did not reflect the distinction drawn in the Criminal Code (Cth) between self-defence and the protection of property and did not place any clear restrictions on the use of lethal force to protect property.
  • The Act was repealed upon the creation of the new sections of the Crimes Act governing self-defence. Under s 420 (current provisions), limitations are placed on the use of lethal force to protect property or to prevent or remove a trespasser. Self-defence is not available to a person who uses force that involves the intentional or reckless infliction of death under these circumstances.

Self-Defence and the Battered Woman

[22] Courts and parliaments have widened the scope of provocation to take into account the history or context of an action and thus to relax the requirement of imminence or suddenness. In self-defence, this trend has been mainly associated with the acceptance of “battered woman syndrome” (BWS) by the courts.

  • In their study of the Victorian Coronial files, Polk and Ranson[23] found that just over half of the homicides in Victoria between 1985 and 1986 involved offenders and victims linked in an intimate relationship and about one-third were in a sexual relationship.
    • They concluded that issues of gender were a major feature of killings in situations of sexual intimacy.
    • In six out of seven cases in which a woman killed her partner (out of 121 homicides), there was evidence that the female had acted in self-protection against a violent and abusive male partner.
  • Despite the clear empirical link (in the above and other studies) between killings by women and a response to a history of violence on the part of their male partners, women have traditionally had great difficulty in invoking the law of self-defence in these circumstances.
  • “Self-defence was developed to apply to the male-pattern assumption that the defendant was responding (in combat) to an isolated and extraordinary attack... contrary to the experience of many women, for whom violence has been part of an ongoing relationship".[24]
  • The element of proportionality to an imminent threat fails to take into account the classical delayed reaction of a woman who finally retaliates after a sustained period of abuse or who perceives the threat as greater than the ordinary person would in the situation because of this history.

These issues were discussed in New Jersey v Kelly,[25] which represented a major breakthrough by providing a mechanism for the jury to hear evidence of the history of an abusive relationship (in a “medicalised” form) and thus to put the woman’s act in a context for the purpose of self-defence.

  • Facts: the accused suffered years of physical and mental abuse by her husband. On the day of the killing, the husband attacked the accused in the street. After being separated by a crowd, he ran towards her with his hands raised. The accused feared he would kill her and took a pair of scissors from her handbag with the intention of frightening him away but stabbed and killed him. The issue was whether expert testimony on battered woman syndrome should be included.
  • Held: Expert testimony of BWS was held to be directly relevant to the reasonableness of the defendant’s belief that she was in imminent danger of death or serious injury.
    • "Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman’s state of mind be accurately and fairly understood".

The landmark Canadian case Lavallee[26] allowed testimony on BWS in defence of Lavallee, who shot her partner and was charged with murder. There was evidence that she had been subject to repeated violence over the years. She shot her partner in the back of the head as he was leaving the room, after allegedly assaulting her and threatening to kill her that evening.

  • Lavallee was applied in Runjanjic and Kontinnen,[27] the first Australian case to authorise the admissibility of evidence of BWS. The evidence was admitted in support of duress, but King CJ noted that it would equally relevant to provocation and self-defence.
  • This approach was confirmed in Osland,[28] where the appellate court held that the trial judge had failed to make clear the connection between evidence of BWS and self-defence. Kirby and Callinan JJ specifically rejected the claim that BWS constitutes a new defence to the charge of culpable homicide.

Sheeny, Stubbs and Tolmie[29] identify a number of concerns with the approach of addressing women’s experience as a technical matter requiring the admission of expert evidence:

  • It constructs the issue as beyond the understanding of the lay juror, which is ironic given the widespread nature of domestic violence in the community.
  • The voice of an expert is preferred to that of the woman herself, reinforcing the notion that she is not a reliable witness.
  • The threshold for admission of evidence of BWS effectively requires the reconstruction of experiences in a way which reflects scientific and medical discourse, “the resort to a ‘syndrome’”.
  • The fact that the evidence is usually given by a psychiatrist or a psychologist reinforces notions of irrationality or disorder on the part of the woman.
  • The characterisation of women who resort to violence is lacking in logic. The agencies which fail to protect women when they reach out should be characterised as helpless instead.
  • Reliance on psychological evidence suggests that the reason for the woman staying in the abusive relationship is her own psychological state. This presumes that she hasn’t left, that the violence would cease if she did leave, that violence may act to keep women in relationships and fails to acknowledge that there are limited opportunities for women leaving abusive relationships (including lack of affordable housing, child care, employment and awaiting poverty).
  • A danger is that a new standard of what is reasonable for the battered woman may emerge to the detriment of women.
  • Expert evidence reinforces the myth of the woman as blameworthy for her abusive situation.
  • The authors suggest dropping the title, “syndrome”, and broadening expert evidence to include branches that do not explain social problems in terms of individual pathology.

2005 Law Reform in Victoria, introducing the category of defensive homicide was designed to provide an alternative, less serious charge for women who kill in the context of domestic violence. However, a 2010 review[30] reveals that of the 13 offenders convicted of the offence all were male.

See Textbook p 612 for sources addressing the debate about the theoretical underpinnings and practical application of BWS.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. [2002] NSWSC 613, [10]; [22]-[24].
  2. (1996) 85 A Crim R 57.
  3. [2002] NSWSC 613, [10]; [22]-[24].
  4. Textbook, pp. 598-9.
  5. Textbook, pp. 599-600.
  6. (1958) 100 CLR 448.
  7. [1971] AC 814.
  8. (1978) 141 CLR 88.
  9. (1987) 162 CLR 645.
  10. Textbook, pp. 600-1.
  11. Textbook, pp. 601-2.
  12. Hansard, Legislative Assembly, 28 November 2001, at 19093.
  13. Textbook, pp. 602-3.
  14. Principals of Criminal Responsibility and Other Matters (1993).
  15. Textbook, pp. 603-5.
  16. [2002] NSWSC 613, [10]; [22]-[24].
  17. [2002] NSWSC 613, [10]; [22]-[24].
  18. (1993) 69 A Crim R 92.
  19. (1996) 85 A Crim R 57.
  20. Textbook, pp. 608-9.
  21. [1957] VR 560.
  22. Textbook, pp. 609-15.
  23. Polk and D Ranson, “The Role of Gender in Intimate Homicide” (1991) 24 ANZ J of Criminol 15.
  24. Textbook, p 610.
  25. 478 A 2d 364 (1984).
  26. (1990) 55 CCC (3d) 97.
  27. (1991) 53 A Crim R 362.
  28. (1998) 159 ALR 170.
  29. E Sheeny, J Stubbs and J Tolmie, “Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations” (1992) 16 Crim LJ 369 at 384-7 and 394.
  30. Department of Justice Victoria, Review of the Offence of Defensive Homicide Discussion Paper, Criminal Law Justice Statement (2010).
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