Self Defence Flashcards
Do you have to know who you are defending
Don’t have to know who you are defending (Thomas), animals might be considered others (Dion)
who is the burden of proof on
defence must prove self defence
yelled “fuck off or I will shoot you” at the cops who he thought was someone he had beef with from the pub
Terewi
Genuine mistake. They thought they were in danger.
Methodology
- what circumstances did the accused believe they were in (subjective)
- Why did they use force (subjective)
- Was the force reasonable (objective)
cases under what circumstances the accused believed they were in
Terewi
R v Thomas
Simpson
Bridger
Kingi
dispute with brother over farm, killed brother. Had schizophrenia
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
Reinforces that a mistake can still be self-defence but has to be honest mistake
R v Thomas
G, drunk, thought cops were intruders, came out with gun pointed at them, disappeared, then came back and did it again
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
Man bet another person with a rake - diagnosed after with mental condition that effected ability to assess risk
Bridger
Psychological defect must be effected the defendant at the time of the act. No evidence that it effected here.
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
Simpson
Intoxication is relevant but only as a window into D’s mental state relating to his circumstances
cases on why did they use force
Graves
Howard
cases on was the force reasonable (objective)
Wang
Ranger
Simpson
King
Murray
Lindroos
Afamasaga
H was winning the fight, H went on and bit the victim anyway which he claimed to do to prevent future attacks
Howard
Self defence will only be recognised if it to repel or prevent force not when it is in retaliation
(Perceived imminence) man threatened to kill wife, fell asleep, she tied him up and killed him
Wang
Real and crystalised danger is needed for SD. Here she had alternatives and acted pre-emptively)
steps for was the force reasonable (objective)
- perceived imminence of the attack or anticipated attack; and
- seriousness of the attack or anticipated attack; and
- whether the defensive reaction was reasonable & proportionate to the perceived danger; &
- whether there were alternative courses of action of which [the defendant] was aware.
(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
Ranger
Need a serious risk of danger. Evidence he was capable SD so retrial and for jury to consider
(seriousness)
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
(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
King
Reasonable here as he was in part disabled – arm in plaster, ‘left him at real disadvantage’
(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
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.
(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
Lindroos
There was break between initial assault which suggested it was not self defence. Not reasonable force, no serious or eminent threat
(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
Afamasaga
Essential question for jury is whether there were other options available that would make the use of lethal force unreasonable
partial defence of excessive force
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
