Bench Notes: Common Law Self-Defence

Introduction

1. Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was first altered by the passage of the Crimes (Homicide) Act 2005, which introduced two statutory self-defence provisions into the Crimes Act 1958: one for use in murder cases (s9AC) and the other for use in manslaughter cases (s9AE).
2. The provisions of the Crimes (Homicide) Act 2005 commenced operation on 23 November 2005, and applied to offences committed on or after that date (Crimes Act 1958 s603).
3. The provisions replaced the common law in the relevant areas (Babic v R [2010] VSCA 198), so that common law self-defence is not available for charges of murder, manslaughter, defensive homicide, attempted murder or attempted defensive homicide where such are alleged to have been committed on or after 23 November 2005:
4. The situation was again altered by the passage of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced provisions into the Crimes Act 1958 abolishing common law self-defence (s322N) and setting out a single statutory self-defence for all offences (s322K).
5. The provisions of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 commenced operation on 1 November 2014 and apply to offences alleged to have been committed on or after that date (Crimes Act 1958 s623).
6. As a result of these legislative changes, common law self-defence may be raised only when:
   • The accused is charged with an offence other than the homicide offences listed above, and such offence was alleged to have been committed before 1 November 2014; or
   • The accused is charged with one of those homicide offences listed above, and such offence was alleged to have been committed before 23 November 2005.
7. These notes outline the common law defence of self-defence. For information concerning the statutory provisions, see Statutory Self-Defence: Bench Notes and Statutory Self-Defence (Pre - 1 November 2014) and Defensive Homicide: Bench Notes.

   When to Charge the Jury about Self-Defence

8. The judge must direct the jury about self-defence if the accused indicates that self-defence is in issue or if the judge considers that directions on self-defence are necessary to avoid a substantial miscarriage of justice (Jury Directions Act 2013 ss10, 15). See Bench Notes: Directions under Jury Directions Act 2013.
9. At common law, the judge was required to instruct the jury about self-defence if there was evidence on which a reasonable jury could decide the issue favourably to the accused (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).
10. The issue of self-defence could be held to arise if there was any evidence from which the jury might infer that the accused acted in self-defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).
11. To see if there was any such evidence, a judge could look not only to the direct evidence, but also to whether a circumstantial case could fairly be made out to support the claimed defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).
12. At common law, if there was evidence on which self-defence could be found, the trial judge was required to leave the issue to the jury even if the judge considered the plea to be “weak or tenuous” (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Muratovic [1967] Qd R 15; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).
13. If there was sufficient evidence to raise the possibility of self-defence, the judge was required at common law to instruct the jury about it, whether or not the plea was raised by the accused (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).
14. Where there was sufficient evidence to raise the possibility of self-defence, the judge was required to instruct the jury about it even if the factual basis for the defence was inconsistent with the accused’s version of events at trial (R v Kear [1997] 2 VR 555; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).
15. These common law principles may be relevant to the operation of the residual obligation to give directions under Jury Directions Act 2013 s15, but must be read in light of the whole of Part 3 of the Act.

    Elements of Common Law Self-Defence

16. The High Court has defined the test for self-defence, for both homicide and non-homicide cases, as follows:

    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 [or she] did (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ).

17. There are two elements to this test:
    1. The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary (known as the "subjective element"); and
    2. That belief must have been based on reasonable grounds (known as the "objective element").
18. Once the question of self-defence is put in issue, the onus is on the prosecution to disprove at least one of these elements beyond reasonable doubt. If the prosecution fail to disprove at least one of these elements the accused will be entitled to an acquittal (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; Virov R (1978) 141 CLR 88; Dziduch v R (1990) 47 A Crim R 378; R v Alpagut 27 July 1989 (NSWCCA)).

    Belief in Necessity (The Subjective Element)

19. At the time the accused committed the relevant act, s/he must have believed that what s/he was doing was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Wills [1983] 2 VR 201).
20. This is a subjective test. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances, but rather what the accused believed (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Virov R (1978) 141 CLR 88; R v Conlon (1993) A Crim R 92 (SC NSW)).
21. For this element to be satisfied, it does not matter if the accused’s belief was mistaken, as long as it was genuinely held (R v McKay [1957] VR 560).
22. If the accused was intoxicated at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary (R v Conlon(1993) 69 A Crim R 92 (NSWSC); R v Katarzynski [2002] NSWSC 613. See "Intoxication" below for further information).
23. The determination of whether the accused believed that his or her actions were necessary incorporates two questions: first, whether the accused believed it was necessary to defend himself or herself at all and, secondly, whether the accused believed it was necessary to respond as he or she did given the threat as s/he perceived it (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).
24. In determining whether the accused believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required (R v Palmer [1971] AC 814; Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Conlon (1993) 69 A Crim R 92).
25. The proportionality of the accused’s response to the harm threatened is just one factor to take into account in determining whether the accused believed that his or her actions were necessary (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 148 A Crim R 282 (Vic CA). See "Proportionality" below).
26. There is no rule requiring the accused to retreat from an attack rather than defend himself or herself. However, a failure to retreat is a factor to be taken into account in determining whether the accused believed that what was done was necessary (as well as in determining whether that belief was based on reasonable grounds – see below) (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448).
27.  If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then this element will not be met. Factors such as a failure to retreat when possible or a highly disproportionate response might indicate an intention to use the circumstances for aggression or retaliation rather than for self-defence.

    Belief on Reasonable Grounds (The Objective Element)

28. The accused’s belief that what he or she was doing was necessary must have been based on reasonable grounds. That is, it must have been a belief which the accused might reasonably have held in all the circumstances (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Wills [1983] 2 VR 201).
29. This element does not require the jury to determine whether the accused acted reasonably in the circumstances. It requires the jury to determine whether there were reasonable grounds for the accused’s belief that it was necessary to do what he or she did (R v Hendy [2008] VSCA 231).
30. This is not a test about what the hypothetical "reasonable person" might have believed in the circumstances, but about whether the accused had reasonable grounds for his or her belief, in the circumstances as he or she perceived them to be (R v Portelli (2004) 148 A Crim R 282 (Vic CA); Virov R (1978) 141 CLR 88).
31. In determining whether the accused’s belief was based on reasonable grounds, the jury may take into account the following matters:
    • The surrounding circumstances (R v Wills [1983] 2 VR 201);
    • All of the facts within the accused’s knowledge (R v Wills [1983] 2 VR 201);
    • The relationship between the parties involved (R v Hector [1953] VLR 543);
    • The prior conduct of the victim (R v Besim [2004] VSC 168);
    • The personal characteristics of the accused, such as:
      • Any deluded beliefs he or she held (Grosser v R (1999) 73 SASR 584; R v Walsh (1991) 60 A Crim R (Tas SC));
      • Any excitement, affront or distress he or she was experiencing (R v Wills [1983] 2 VR 201);
    • The proportionality of the accused’s response (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 148 A Crim R 282 (Vic CA). See "Proportionality" below);
    • The accused’s failure to retreat (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448).

    Other Relevant Considerations

    Intoxication

32. Evidence of intoxication may be relevant to the subjective element of self-defence (belief in necessity). If the accused was intoxicated at the time he or she committed the relevant acts, the jury can take this into account when determining whether he or she believed:
    • That an occasion for the use of force had arisen; or
    • That the use of force was necessary (R v Conlon (1993) 69 A Crim R 92 (NSWSC); Bedi v R (1993) 61 SASR 269; Ninness v Walker (1998) 143 FLR 239; R v Katarzynski [2002] NSWSC 613).
33. It is unclear whether evidence of intoxication is also relevant to the objective element (in the absence of any statutory modifications). [1] This issue has not yet been addressed in Victoria, and courts in other jurisdictions have divided on the issue of whether the jury, in determining whether the accused’s belief was based on "reasonable grounds", must take into account any personal characteristics of the accused (including his or her state of intoxication) which might have affected:
    • His or her appreciation of the gravity of the threat faced; and
    • The reasonableness of his or her response to that threat (compare R v Conlon (1993) 69 A Crim R 92; R v Katarzynski [2002] NSWSC 613 with Ninness v Walker (1998) 143 FLR 239; R v McCullough[1982] Tas R 43).

    Where the Accused Initiated the Aggression

34. A person who originates an attack cannot then claim that s/he acted to defend himself or herself against a counter attack, unless his or her original aggression had ceased at the time of the counter attack so as to have enabled the accused to form a belief that his or her actions were necessary in self-defence. (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Kell & Dey (Ruling No. 1) [2008] VSC 518).
35. However, there is no rule to prevent self-defence being raised when the accused originated the attack, as long as the original aggression had ceased to create a continuing situation of emergency that provoked a lawful attack on the accused. Any initial aggression by the accused will form part of the whole of the surrounding circumstances to be taken into account in determining whether accused had a belief, on reasonable grounds, in the necessity of his or her actions. (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645).
36. Where it is alleged that the accused was the initial aggressor, the jury will need to consider all the circumstances as perceived by the accused, including, for example, the extent to which the accused declined further conflict, stopped using force, was defeated, faced a disproportionately escalated level of force in response, or attempted to retreat (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645) R v Portelli (2004) 10 VR 259; Ruben Anandan v R [2011] VSCA 413; see also R v Lawson and Forsythe [1986] VR 515 (Ormiston J)).

    Defence Against Lawful Force

37. Common law self-defence is not limited to defending against unlawful attacks (cf. statutory self-defence). It is possible to raise the defence even if the accused was responding to the lawful use of force (such as a lawful arrest) (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645).
38. However, it will only be in an unusual situation that a lawful attack will provide reasonable grounds for acting in self-defence. This is because where an accused creates a situation in which force might lawfully be applied to apprehend him or her (e.g. where s/he is engaged in criminal behaviour of a violent kind), then the only reasonable view of his or her resistance to that force will usually be that s/he was acting as an aggressor in pursuit of his or her original design, rather than in self-defence (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; Fry v Queen (1992) 58 SASR 424).

    Proportionality

39. Although in the past there was a separate requirement that the accused’s actions be proportionate to the harm threatened, this is no longer the case. The proportionality of the accused’s response to the harm threatened is simply one factor to take into account in determining whether the accused believed that his or her actions were necessary, and whether that belief was based on reasonable grounds (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 148 A Crim R 282 (Vic CA); R v Hendy [2008] VSCA 231; R v Said [2009] VSCA 244).

    Use of Pre-emptive Force

40. A person is not only entitled to rely on self-defence only if s/he acts whilst an attack is in progress or immediately threatened. S/he is entitled to take steps to forestall a threatened attack before it has begun (Osland v R (1998) 197 CLR 316; Virov R (1978) 141 CLR 88; R v Lane [1983] 2 VR 449; R v Conlon (1993) 69 A Crim R 92).
41. The key issue is not whether an attack was imminent or immediately threatened, but whether the accused’s perception of danger led him or her to believe that the use of defensive force was necessary, and that that belief was based on reasonable grounds (Osland v R (1998) 197 CLR 316).
42. However, what is believed to be necessary in the circumstances, and the reasonableness of the grounds for that belief, may be affected by the lack of immediacy of the threat, although this will not necessarily be the case (R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
43. Where a person responds pre-emptively to what he or she perceives to be a threat from a violent partner, expert evidence of "battered woman syndrome" may be admitted. Such evidence can assist the jury to understand that an act committed when there is no actual attack underway may be a self-defensive response to a genuinely apprehended threat of imminent danger, sufficient to warrant a pre-emptive strike (Osland v R (1998) 197 CLR 316).

    Defence of Others and Protection of Property

44. Although the principles in Zecevic were stated to apply to cases of self-defence, it has been held that they apply equally to cases in which a person acts in defence of another (R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
45. There is no longer a requirement for there to be a particular relationship between the accused and the person they were defending. An accused will have a defence if s/he was protecting any other person, as long as s/he believed on reasonable grounds that it was necessary to act in that way given all of the circumstances (R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
46. Although there is little Victorian case law on the issue, the same principles may also apply if force is used to protect personal property, or to prevent crime (see, e.g., R v McKay [1957] VR 560).

    Content of the Charge

47. When directing the jury about self-defence there is no set formula to be used (Collingburn v R (1985) 18 A Crim R 294; Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
48. The burden of proof should be made very clear to the jury. They should be told that the offence is proved only if the prosecution has established either that the accused had no belief that it was necessary to act in the way he or she did, or that there were no reasonable grounds for such a belief (R v Alpagut 27/7/1989 NSWCCA; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
49. Judges should be careful not to direct the jury that the accused’s conduct must have been reasonable. The focus of the second element must be on the grounds for the accused’s belief (R v Hendy [2008] VSCA 231).
50. The question of self-defence should be placed in its factual setting, and considerations which may assist the jury to reach its conclusion should be identified (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
51. The jury should be told to consider all of the circumstances of the case, and that any one factor should be considered within that broader context. This helps ensure that matters of evidence, such as the proportionality of the force, are not elevated to rules of law (Zecevicv Director of Public Prosecutions(1987) 162 CLR 645; R v Alpagut 27/7/1989 NSWCCA; R v Portelli (2004) 148 A Crim R 282 (Vic CA);R v Said [2009] VSCA 244).
52. The judge should offer such assistance by way of comment as is appropriate to the particular case. It will often be desirable to tell the jury to approach the task in a practical manner, giving proper weight to the predicament of the accused, which may have afforded little, if any, opportunity for calm deliberation or detached reflection (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Dziduch(1990) 47 A Crim R 378; R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
53. The judge must not give the jury the impression that proportionality is a necessary part of the legal conception of self-defence, or give proportionality undue prominence as a factual consideration (R v Said [2009] VSCA 244).
54. If an issue arises as to whether the force used by the accused was proportionate to the threat offered, the jury should be directed that the prosecution must establish that the force used by the accused was "out of all proportion" or "plainly disproportionate" to any attack which the accused could reasonably have believed was threatened by the victim. This will make it clear that the accused does not have to have acted in a precisely proportionate way, and makes allowance for any difficulty an accused may have found him or herself in in weighing the precise action which should have been taken to avoid the threat (R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 148 A Crim R 282 (Vic CA); R v Said[2009] VSCA 244).
55. The issue of self defence should be listed with all of the other issues which the prosecution must establish, rather than being dealt with separately (R v Alpagut 27/7/1989 NSWCCA).

    Notes

[1] Crimes Act 1958 s9AJ modifies the common law position and, where it applies, requires the jury to ignore evidence of self-induced intoxication when determining whether the accused’s belief was based on reasonable grounds. See Bench Notes: Statutory Intoxication (Topic Not Yet Complete).

 Last updated: 1 November 2014