Self Defence

Question 1

Do you have to know who you are defending

Answer 1

Don’t have to know who you are defending (Thomas), animals might be considered others (Dion)

Question 2

who is the burden of proof on

Answer 2

defence must prove self defence

Question 3

yelled “fuck off or I will shoot you” at the cops who he thought was someone he had beef with from the pub

Answer 3

Terewi
Genuine mistake. They thought they were in danger.

Question 3

Methodology

Answer 3

1. what circumstances did the accused believe they were in (subjective)
2. Why did they use force (subjective)
3. Was the force reasonable (objective)

Question 4

cases under what circumstances the accused believed they were in

Answer 4

Terewi
R v Thomas
Simpson
Bridger
Kingi

Question 5

dispute with brother over farm, killed brother. Had schizophrenia

Answer 5

Kingi
There has to be an argument made that the particular factor may have impaired the person so they subjectively perceived a heightened sense of danger

Question 5

Reinforces that a mistake can still be self-defence but has to be honest mistake

Answer 5

R v Thomas

Question 6

G, drunk, thought cops were intruders, came out with gun pointed at them, disappeared, then came back and did it again

Answer 6

Graves
When he aimed the gun the second time he was acting in retaliation not self defence Even though he was affected by alcohol it was not reasonable in the circumstances to use self defence

Question 6

Man bet another person with a rake - diagnosed after with mental condition that effected ability to assess risk

Answer 6

Bridger
Psychological defect must be effected the defendant at the time of the act. No evidence that it effected here.

Question 7

brothers drinking, brother came at D with a knife and hit him in head with bat, D could not leave cause he was drunk, D hit bro’s head into table 3x

Answer 7

Simpson
Intoxication is relevant but only as a window into D’s mental state relating to his circumstances

Question 8

cases on why did they use force

Answer 8

Graves
Howard

Question 9

cases on was the force reasonable (objective)

Answer 9

Wang
Ranger
Simpson
King
Murray
Lindroos
Afamasaga

Question 9

H was winning the fight, H went on and bit the victim anyway which he claimed to do to prevent future attacks

Answer 9

Howard
Self defence will only be recognised if it to repel or prevent force not when it is in retaliation

Question 10

(Perceived imminence) man threatened to kill wife, fell asleep, she tied him up and killed him

Answer 10

Wang
Real and crystalised danger is needed for SD. Here she had alternatives and acted pre-emptively)

Question 10

steps for was the force reasonable (objective)

Answer 10

1. perceived imminence of the attack or anticipated attack; and
2. seriousness of the attack or anticipated attack; and
3. whether the defensive reaction was reasonable & proportionate to the perceived danger; &
4. whether there were alternative courses of action of which [the defendant] was aware.

Question 11

(Perceived imminence) husband and wife arguing, she armed herself with knife, he threatened to kill her and her son, she stabbed him in shoulder and he died

Answer 11

Ranger
Need a serious risk of danger. Evidence he was capable SD so retrial and for jury to consider

Question 12

(seriousness)

Answer 12

Simpson (brothers drinking, brother came at D with a knife and hit him in head with bat, D could not leave cause he was drunk, D hit bro’s head into table 3x)
You can act very violently providing it is proportionate

Question 12

(reasonable and proportionate) guy with broken arm choked at pub by person with family beef accused hit him in the face with a beer jug

Answer 12

King
Reasonable here as he was in part disabled – arm in plaster, ‘left him at real disadvantage’

Question 12

(reasonable and proportionate) fight between gf and brother, bf went an got a knife to threaten the brother, he was restrained and attacked, broke free and stabbed and killed him

Answer 12

Murray
There was a disparity in size and age, A had rapidly got the worst of the encounter, and the other party’s known karate skills.

Question 13

(alt. course of actions) L came home drunk and flat mate had people around who L told to leave, FM took him in room and assaulted him, L got knife and stabbed and chased him

Answer 13

Lindroos
There was break between initial assault which suggested it was not self defence. Not reasonable force, no serious or eminent threat

Question 14

(alt. course of actions) rival gangs had been fighting on and off, D was on look out when the gang leader approached the property he shot him

Answer 14

Afamasaga
Essential question for jury is whether there were other options available that would make the use of lethal force unreasonable

Question 15

partial defence of excessive force

Answer 15

If an excess of force is used when someone is justified to self defence they still be charged under s 62

McNaughton (1 v 1 gang fight, D’s gang mate presented a gun which was taken off him, D retrieved it after fight, V responded aggressively then D shot him
Partial defence of excessive force not consistent with s 62 but it may be a relevant factor for sentencing