Self-defence (Australia)
Encyclopedia
In the criminal law
of Australia
, self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder
if the degree of force used was excessive. For the general theory, see the theory of self-defence
.
In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 the victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned, and shot and killed the tenant. The majority of the High Court said at 661:
In Conlon (1993) BFW 709 the accused used a shotgun to repel two trespassers whom he believed were stealing his cannabis plants. His belief was affected by drunkenness and a schizoid personality disorder which were relevant to determine whether the Crown had proved that he had not acted in self defence: specifically whether he believed that it was necessary to do what he did and whether that was a reasonable belief. This question seems advantageous to the defence because it tests whether the belief is reasonable to the accused (a subjective test), not reasonable to the reasonable person (objective test).
Under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.
No 28 of 2003—Criminal Law Consolidation (Self Defence) Amendment Act 2003
In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader.
Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family.
The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.
normally associated with murder may be missing. In the High Court case of Viro v The Queen (1978) 141 CLR 88 Aickin J said at 180:
The defence was first recognised in the common law
in R v McKay (1957) VR 560 where a farmer shot and fatally wounded a chicken thief, and confirmed in R v Howe (1958) SASR 95 where Mayo J held at 121-122:
This mitigatory defence was abolished in Zecevic v Director of Public Prosecutions which expressed the view that provocation
should be the alternative considered. The defence was re-introduced in statutory form in South Australia in 1991, revised in 1997. The Criminal Law Consolidation Act 1935 (SA) s15 now reads: It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:
s15A extends the partial defence to circumstances where the accused had applied excessive force in killing the deceased but had genuinely
believed the force to be necessary and reasonable: to protect property from unlawful appropriation, destruction, damage or interference; or to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and the defendant did not intend to cause death (emphasis added).
In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act 1900 (NSW). Section 421 states: the person uses force that involves the intentional or reckless infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: to defend himself or herself or another person, or 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.
Unlike South Australian law, s420 of the NSW Crimes Act explicitly states that self-defence is not available as a defence to murder if death is inflicted to prevent criminal trespass.
In November 2005, pursuant to recommendations from the Law Reform Commission for Victoria, the Victorian legislature introduced new laws regarding self defence. Among them, a new offence of defensive homicide was created: where the accused's belief in the need for the force applied in self-defence was unreasonable, s/he may be convicted of an offence less serious than murder.
Criminal Law Consolidation (Self Defence) Amendment Act 2003 http://www.legislation.sa.gov.au/LZ/V/A/2003/CRIMINAL%20LAW%20CONSOLIDATION%20(SELF%20DEFENCE)%20AMENDMENT%20ACT%202003_28/2003.28.UN.PDF
2003 SA Law change articlehttp://www.news.com.au/adelaidenow/story/0,22606,21134744-2682,00.html
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
if the degree of force used was excessive. For the general theory, see the theory of self-defence
Self-defense (theory)
The right of self-defense is the right for civilians acting on their own behalf to engage in violence for the sake of defending one's own life or the lives of others, including the use of deadly force.- Theory :The...
.
Self-defence
In the South Australian Court of Criminal Appeal in R v Howe (1958) SASR 95, Mason J formulated six propositions on the law of self-defence were accepted as a model direction on self-defence in murder trials. Thus, a full acquittal was achieved if the jury found that the accused had reasonably believed they were threatened with death or serious bodily harm and, if so, that the force used was reasonably proportionate to the perceived danger.In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 the victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned, and shot and killed the tenant. The majority of the High Court said at 661:
- The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.
In Conlon (1993) BFW 709 the accused used a shotgun to repel two trespassers whom he believed were stealing his cannabis plants. His belief was affected by drunkenness and a schizoid personality disorder which were relevant to determine whether the Crown had proved that he had not acted in self defence: specifically whether he believed that it was necessary to do what he did and whether that was a reasonable belief. This question seems advantageous to the defence because it tests whether the belief is reasonable to the accused (a subjective test), not reasonable to the reasonable person (objective test).
Under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.
No 28 of 2003—Criminal Law Consolidation (Self Defence) Amendment Act 2003
In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader.
Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family.
The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge.
Excessive self defence
The rationale of the defence recognises that the degree of culpabilityCulpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
normally associated with murder may be missing. In the High Court case of Viro v The Queen (1978) 141 CLR 88 Aickin J said at 180:
- [There is] a real distinction in the degree of culpability of an accused who has killed having formed the requisite intention without any mitigating circumstance, and an accused who, in response to a real or a reasonably apprehended attack, strikes a blow in order to defend himself, but uses force beyond that required by the occasion and thereby kills the attacker.
The defence was first recognised in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
in R v McKay (1957) VR 560 where a farmer shot and fatally wounded a chicken thief, and confirmed in R v Howe (1958) SASR 95 where Mayo J held at 121-122:
- A person who is subjected to a violent and felonious attack and who, in endeavouring, by way of self-defence, to prevent the consummation of that attack by force exercises more force than a reasonable man [sic] would consider necessary in the circumstances, but no more than what he [or she] honestly believed to be necessary in the circumstances, is guilty of manslaughterManslaughterManslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
and not of murder.
This mitigatory defence was abolished in Zecevic v Director of Public Prosecutions which expressed the view that provocation
Provocation (legal)
In criminal law, provocation is a possible defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge...
should be the alternative considered. The defence was re-introduced in statutory form in South Australia in 1991, revised in 1997. The Criminal Law Consolidation Act 1935 (SA) s15 now reads: It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:
-
- (a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
- (b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. For the purposes of this section, a person acts for a defensive purpose if the person acts:
- (a) in self defence or in defence of another; or
- (b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
s15A extends the partial defence to circumstances where the accused had applied excessive force in killing the deceased but had genuinely
believed the force to be necessary and reasonable: to protect property from unlawful appropriation, destruction, damage or interference; or to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and the defendant did not intend to cause death (emphasis added).
In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act 1900 (NSW). Section 421 states: the person uses force that involves the intentional or reckless infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: to defend himself or herself or another person, or 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.
Unlike South Australian law, s420 of the NSW Crimes Act explicitly states that self-defence is not available as a defence to murder if death is inflicted to prevent criminal trespass.
In November 2005, pursuant to recommendations from the Law Reform Commission for Victoria, the Victorian legislature introduced new laws regarding self defence. Among them, a new offence of defensive homicide was created: where the accused's belief in the need for the force applied in self-defence was unreasonable, s/he may be convicted of an offence less serious than murder.
See also
- Battered woman syndromeBattered woman defenceThe battered woman defense is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife...
- Defense of propertyDefense of propertyThe defence of property is a possible justification used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property. Courts have generally ruled that the use of force may be acceptable.-English...
- Self-defence in English lawSelf-defence in English lawSelf-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
- Self-defense (Sweden)Self-defense (Sweden)In Sweden, the law of self-defense allows a person attacked to excuse or justify a proportionate use of violence in defense of the person or property.-The law:...
- Self-defense (United States)Self-defense (United States)In the United States, the defense of self-defense allows a person to use reasonable force in his or her own defense or the defense of others ....
- Use of forceUse of forceThe term use of force describes a right of an individual or authority to settle conflicts or prevent certain actions by applying measures to either: a) dissuade another party from a particular course of action, or b) physically intervene to stop them...
External links
Self Defence http://law.anu.edu.au/criminet/tselfd.htmlCriminal Law Consolidation (Self Defence) Amendment Act 2003 http://www.legislation.sa.gov.au/LZ/V/A/2003/CRIMINAL%20LAW%20CONSOLIDATION%20(SELF%20DEFENCE)%20AMENDMENT%20ACT%202003_28/2003.28.UN.PDF
2003 SA Law change articlehttp://www.news.com.au/adelaidenow/story/0,22606,21134744-2682,00.html