Week 5-Self Defence and Excessive Self Defence Flashcards
Self Defence Test in Katarzynski [2000] NSWSC 613 Howie J under Zecevic
REASONABLE GROUNDS
- believed that he was called upon to defend himself
- That his conduct was necessary in order to defend himself
- That he had reasonable grounds for each of those beliefs
Self Defence Test in Katarzynski [2000] NSWSC 613 Howie J Q1
REASONABLE RESPONSE
1.Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or
herself (DETERMINED SUBJECTIVELY-considering all the personal characteristics of the accused at the time he/she carried out the conduct
Self Defence Test in Katarzynski [2000] NSWSC 613 Howie J Q2
If there is, is there also a reasonable possibility that what the
accused did was a reasonable response to the circumstances as he or she perceived them:
(DETERMINED OBJECTIVELY-assesment of the proportionality of the accused’s response to the situation the accused subjectively believed he/she faced
s418 Crimes Act 1900 (NSW) abcd
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.’
Principle in Burgess; Saunders [2005] NSWCCA 52 Adams J, Newman J, Hislop J
Self-defence must be left to the jury to consider if
there is evidence capable of establishing the reasonable possibility that:
1. The subjective reasonableness of the accused’s
response
2. The objective reasonableness of the accused’s
response
Principle in R v PRFN (unreported, NSWCCA 21 June 2000) Giles JA
No War on Iraq-on Opera House
Imminence of threat is critical
Reasonable Proportionate to the circumstances
the concept of self-defence only arises
where the actions of the accused by way of selfdefence are directly taken against the person
threatening the accused or another’s being or
property.
Principle in Colosimo v DDP (NSW) [2006] NSWCCA 293 Hodgson JA
Self defence in case of a person who wanted to fight
The accused’s beliefs and perceptions can be
inferred from the circumstances (don’t necessairly need evidence
A belief that withdrawal can deal with a risk of
harm is generally inconsistent with a belief that
conduct of the nature of an assault was necessary
for defence.
A person may not create a continuing situation of
emergency and provoke a lawful attack upon
himself and claim on reasonable grounds the right
to defend himself against the attack
Principle in Abbosh & Bene [2011] NSWCCA 265
Elaborating on ‘reasonable possibility that accused was
acting in self-defence’
Principle in Crawford [2008] NSWCCA 166
Directions to the jury
ESD Principle in Grant [2014] NSWCCA
ESD can be considered a third species of voluntary manslaughter
ESD Principle in Lane [2013] NSWCCA 317
Proving elements of murder is pre-requisite to defence
ESD Principle in Ryan and Coulter [2013] NSWCCA 175
Simpson J Reasonable and proper evidence is needed to establish the conduct pertaining to participating in murer was neccesary to defend another against the deceased
Mum funding efforts to murder her son in law in order to protect her daughter
