Self-Defence and Necessity

Criminal Laws, S2 2014, Class 10

Revision
1.) What are the key elements to establish for a defence of
extreme provocation?
2.) How does this differ from the requirements of the previous
s 23, and which elements are the same?
3.)What are the two objective elements of the defence?
4.) What subjective factors can be taken into account for each
objective limb?
5.) To what extent is the battered woman syndrome described
in Chhay catered for under the new defence?

Self-Defence: Common Law History

Howe
Excessive self-defence
Rejected in Palmer
No half-way house
Viro (Mason J)
Accuseds reasonable belief
Reasonable proportionality
Belief about reasonable proportionality
Zecevic
Abolished excessive self-defence
Whether accused believed on reasonable grounds that actions
were necessary

Self-Defence: Statutory Basis

418 Self-defence-when available
(1) A person is not criminally responsible for 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 and only if the person believes the
conduct is 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, or
(c) to protect property from unlawful taking, destruction, damage or interference,
or
(d) to prevent criminal trespass to any land or premises or to remove a person
committing any such criminal trespass, and the conduct is a reasonable
response in the circumstances as he or she perceives them.

Onus of Proof: Standard

419 Self-defence-onus of proof
In any criminal proceedings in which the application of this Division is
raised, the prosecution has the onus of proving, beyond reasonable doubt,
that the person did not carry out the conduct in self-defence.

Common Law vs Statute

What are the two key differences?

Excessive Self-Defence: Statute (since

2001)
421 Self-defence-excessive force that inflicts death
(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

It is acceptable that a person who honestly believes he is acting in selfdefence but who uses more force than is reasonable in the circumstances
should not be liable for murder but be liable for the lesser offence of
manslaughter. Such a result is consistent with the values of a civilised
society which upholds and respects the sanctity of life.

Exemptions for Property

420 Self-defence-not available if death inflicted to protect property or trespass
to property
This Division does not apply if the person uses force that involves the
intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing
criminal trespass.

Self-Defence and Property

McKay
Poultry farmer 3 years imprisonment
Home Invasion (Occupants Protection) Act 1998
Repealed

Subjective and Objective Elements

1.) What are the two key questions to ask under s 418?
2.) Which is subjective and which is objective?
3.) Which characteristics of the accused should be taken into account in
determining the objective question?
4.) Can self-induced intoxication be taken into account to determine the
reasonableness of the accuseds response?
5.) Does s 428F (requiring intoxicated persons actions to be judged against
the reasonable sober person) help determine the issue?

Nexus

Appellants belief as to imminent harm

R v PRFN
generalized apprehension
A reasonable response?
Adams J
The comparison relied on by the appellants
could logically justify, if correct, acts of even
more extreme destruction of property and even
injury or death

Battered Woman Syndrome: Expert

Evidence
Statistics
New Jersey v Kelley
Why was this a landmark case?
What are the features of the battered woman syndrome?
Runjanjic and Kontinnen (1991) 53 A Crim R 362
Osland (1998) 159 ALR 170
Arguments against admitting expert evidence on BWS? What are
the dangers?
Victoria: Defensive Homicide

Necessity and Abortions

Crimes Act 1900 (NSW)
Section 82:

self-procured miscarriage (10 yrs)

Section 83:

procuring miscarriage in another (10 yrs)

Section 84:

procuring drugs knowing that they will be used to procure miscarriage (5 yrs)

What test of necessity was established in Wald (as applied in K)?

How did Kirby P expand this test in CES Superclinics?

Model Criminal Code Officers Committee

[T]he issues involved in taking a position on the general issue are
not those which are within the particular expertise of this
Committee The Committee would like to emphasise, however,
that it is not possible to do nothing. Even doing nothing means
taking a position by default.

Benefits of decriminalisation?