LAWS1016 Self Defence Flashcards
Elements of Self Defence s418 and Excessive SD s421
- Whether reasonable possibility that the accused believed that his conduct was necessary in order to defend himself or another (subjective test).
- Whether reasonable possibility that D’s conduct was a reasonable response to the circumstances as he perceives them (Hybrid objective test).
- Excessive Self Defence.
- Nexus between the threat and the response.
What can D defend?
(a) defend himself or another,
(b) prevent / terminate unlawful deprivation of his liberty or another,
(c) protect property from unlawful taking / destruction / damage / interference (e.g. larceny),
(d) prevent criminal trespass to land / any other premises, or to remove a person committing trespass.
SD and ESD legislation
s418 - s422
s418(1) Self defence is a lawful justification for what would otherwise constitute criminal acts and results in a complete acquittal if it can be established.
s419 P bears the onus to disprove that the person carried his outs in self defence BRD
s420 self defence not available where person uses forces that involves the intentional / reckless infliction of death only to protect (a) property (b) prevent trespass.
s421 (1) Then conviction of murder will be reduced to manslaughter.
s422 self defence is not negatived merely because (a) the conduct to which the person responds was lawful (e.g. police arrests) (b) person carrying out conduct is not criminally responsible for it (e.g. mental illness).
- Whether reasonable possibility that the accused believed that his conduct was necessary in order to defend himself or another (subjective test).
There need not be reasonable grounds for D’s belief that it was necessary to defend, it is sufficient that D’s belief it honest / genuine.????
“necessary” for people that “wanted to fight”
An accused that “wanted to fight” is not excluded from establishing self defence. However, it may impact whether the accused could have believed their conduct was necessary. The extent to which the the accused quit / withdrew from the use of force is relevant. Similarly, if the conduct to which the accused responds is lawful, although it does not negative self defence, it may impact considerations whether accused could have reasonable believed that necessary and whether the conduct was reasonable. (Colosimo) star city casino brawl, wanted to fight, guards could lawfully use reasonable force to get them to leave, guards were not violent towards accused prior the brawl indicating a lack of possibility that they could be seen as a risk of harm to the accused, even if initial push was not necessary, it could not give rise to a belief that could be reasonably held that the person pushed was in any risk of harm or that their actions were necessary to defend, all they had to do was stop fighting.
“Necessary” and BWS
Battered woman syndrome (BWS) evidence may be relevant, may provide insight into the woman’s state of mind regarding reasonable belief whether her conduct was necessary.
- Whether reasonable possibility that D’s conduct was a reasonable response to the circumstances as he perceives them. (Hybrid objective test).
(1) determine the circumstance D believed he was facing [subjective]; (2) within this setting, whether D’s response was reasonable / proportionate [objective].
(s428F intoxication cannot be taken into account for reasonable person tests).
Excessive SD for people who aid and abet.
S421 may extend to protect persons who aids and abets (e.g. handing knife to someone immediately under threat) the person who inflicts the lethal force (i.e. the assassin).
(Ryan and Coulter) contracted assassin to kill husband, mother contributed amount. An interview with Coulter provides explanation for her conduct, but could not constitute evidence, even when taken at its highest in favour of Coulter, of a belief that participating into eh killing was necessary to defend Helen.
- Nexus between the threat and the response
Conduct constituting self defence must be against the person threatening the accused. (Burgess and Saunders) painted “no war” on Opera House (i.e. innocent third party) to defend against the Gov’s decision to become involved with Iraq which will result in an increased risk of terrorist attacks.
