8.9.3.1 - Bench Notes: Statutory Self-Defence[1]

Commencement Information

  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 situation was again altered by the passage of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced a new Part IC into the Crimes Act 1958. Part IC abolishes common law self-defence (s322N) and sets out a single statutory self-defence provision for all offences (s322K). It replaces the previous Subdivision (1AA) of Division 1 of Part I of the Act (ss9AB – 9AJ) ‘Exceptions to homicide offences’.
  4. The provisions of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 commenced operation on 1 November 2014 and apply to all offences alleged to have been committed on or after that date (Crimes Act 1958 s623).
  5. These notes outline the statutory defence of self-defence introduced by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. For information concerning the statutory provisions relevant to homicide offences alleged to have been committed on or after 23 November 2005 and before 1 November 2014, see Statutory Self-Defence (Pre-1 November 2014) and Defensive Homicide: Bench Notes#.

Abolition of Common Law Self-Defence

  1. Statutory self-defence has replaced the common law defence for all offences (Crimes Act 1958 s322N). Consequently, common law self-defence is not available when:
  2. The accused is charged with any offence alleged to have been committed on or after 1 November 2014.
  3. However, common law self-defence will apply when:
  4. The accused is charged with an offence other than a homicide offence and which is alleged to have been committed on or after 23 November 2005 and before 1 November 2014; or
  5. The accused is charged with any offence alleged to have beencommitted before 23 November 2005.
  6. See 8.9.1. Common Law Self-Defence# for information concerning the common law defence.

Repeal of Murder Self-Defence, Defensive Homicide and Manslaughter Self-Defence

  1. The statutory defences for murder self-defence and manslaughterself-defence, as well as the offence of defensive homicide, were repealed by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.
  2. However, these defences (and the alternative offence of defensive homicide) remainrelevant when:
  3. The accused is charged with a homicide offence alleged to have been committed on or after 23 November 2005 and before 1 November 2014.
  4. See Bench Notes: #Statutory Self-Defence (Pre-1 November 2014) and Defensive Homicide for more information.
  5. The new statutory self-defence provision, along with the abolition of common law self-defence and the repeal of the various homicide self-defence provisions, was implemented to simplify the law. The result is that for all offences alleged to have been committed on or after 1 November 2014 only one test for self-defence will apply, making it easier to explain self-defence to juries and assisting the jury in understanding and applying self-defence(Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, Explanatory Memorandum).

When to Charge the Jury about Self-Defence

  1. 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 there are substantial and compelling reasons to direct the jury about self-defence despite the absence of a request (Jury Directions Act 2015ss11, 16). See Bench Notes: Directions under Jury Directions Act 2015.
  2. In criminal proceedings where self-defence in the context of family violence is in issue, Part 6 of the Jury Directions Act 2015 specifies certain directions that may be given early in the trial. See “Family Violence and Self-Defence: Jury Directions” below and Bench Notes: Directions under Jury Directions Act 2015.
  3. 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).
  4. The issue of self-defence could be held to arise if there wasany 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).
  5. To see if there was any such evidence, a judgecould look not only to the direct evidence, but also to whether a circumstantial case could fairly be made out to support the defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).
  6. At common law, if there was sufficient evidence to raise the possibilityof self-defence, the trial judge was required to leave the issue to the jury even ifthe judge consideredthe defence to be “weak or tenuous” (Zecevicv 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).
  7. 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 defence was raised by 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).
  8. 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).
  9. These common law principles may be relevant to the operation of the residual obligation to give directions under Jury Directions Act 2015s16, but must be read in light of the whole of Part 3 of the Act (or Part 6 of the Act, for self-defence in the context of family violence).

Onus of Proof

  1. Once the question of self-defence is raised by the defence (that is, once the ‘evidential onus’ is satisfied), the legal onus is on the prosecution to prove beyond reasonable doubt that the accused did not act in self-defence (Crimes Act 1958 s322I).
  2. This is consistent with general common law principles, and the application of the previous statutory self-defence provisions for homicide offences (Babic v R [2010] VSCA 198; Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; Virov R(1978) 141 CLR 88;Dziduch v R (1990) 47 A Crim R 378).

Elements of Statutory Self-Defence

  1. Sections322K(1)-(2) of the Crimes Act 1958state:

(1)A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if—

a)the person believes that the conduct is necessary in self-defence; and

b)the conduct is a reasonable response in the circumstances as the person perceives them.

  1. It is not for the accused to establish that he or she held the relevant belief and that his or her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence (Crimes Act 1958 s322I).
  2. This means that where self-defence arises on the evidence, the accused will be not guilty unless the prosecution proves either:
  3. That the accused did not believe that the conduct was necessary in self-defence; or
  4. That the conduct was not a reasonable response in the circumstances as the accused perceived them.
  5. Incorporating the onus and standard of proof, this issue may be put to the jury as two questions:

a)Is there a reasonable possibility that the accused believed that his/her conduct was necessary to defend him/herself?

b)Is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as s/he perceived them? (R v Katarzynski [2002] NSWCCA 613).

  1. The accused will be found not guilty unless the jury answer “no” to one of those two questions.
  2. Some cases have suggested that there is a separate requirement that the accused carried out his conduct for the purpose of self-defence (see Douglas v R [2005] NSWCCA 419). In most cases, it is not necessary to address this separate requirement. It is suggested that this third requirement should only be raised where it would be open to the jury to find that the accused believed the conduct was necessary in self-defence, but that his/her conduct was not committed as a result of this belief.
  3. Circumstances of “family violence” can affect both limbs of the test for self-defence. See “Family Violence” below for further information.

Belief in Necessity

  1. The first limb of the test is based on the language used by Wilson, Dawson and Toohey JJ in Zecevicv Director of Public Prosecutions (1987) 162 CLR 645 and can be treated as equivalent to the first limb of common law self-defence.
  2. Thefirst limb is a subjective test. The test is whether the accused believed that the conduct was necessary in self-defence. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances (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)).
  3. 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;R v Katarzynski [2002] NSWSC 613;R v Trevenna [2004] NSWCCA 43).
  4. If the accused was intoxicated (by alcohol, drugs or any other substances) 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).
  5. The determination of whether the accused believed that his or her actions were necessary in self-defence 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 (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645).
  6. 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).
  7. 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).
  8. There is no rule requiring the accused to retreat from an actual or perceived 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 their conduct was necessary (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448) as well as in determining whether the response to the threat was reasonable – see below ‘Reasonable Response’).
  9. If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then this limb of the test for self-defence 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.
  10. A person is not entitled to rely on self-defence only if s/he acts while an attack is in progress or immediately threatened. The key issue is whether the accused’s perception of danger led him or her to believe that the use of defensive force was necessary (Osland v R (1998) 197 CLR 316).
  11. However, what is believed to be necessary in the circumstances may be affected by the lack of immediacy of the threat (R v Portelli (2004) 148 A Crim R 282 (Vic CA)).
  12. 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 even when there is no 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).
  13. More generally, evidence of “family violence” can affect the determination of the accused’s belief in necessityin situations where:
  • he or she is responding to a harm that is not immediate; and/or
  • his or her response involved force in excess of the force involved in the perceived threat. See “Family Violence” below for further information.
  1. Unlike common law self-defence, s322K does not require the accused’s belief in necessity to be based on reasonable grounds.

Statutory Self-Defence: Murder

  1. Section 322K(3) of the Crimes Act 1958 provides that in the case of murder, a person will only be carrying out conduct in self-defence if he or she believes that the conduct is necessary to defend himself or herself or another person from the infliction of death or really serious injury.
  2. The statutory defence will fail if the accused did not believe that his or her actions were necessary to defend him or herself or another person from the infliction of death or really serious injury. This provision is similar to the statutory defence of murder self-defence introduced in 2005 by the Crimes (Homicide) Act 2005 (see Bench Notes: Statutory Self-Defence (Pre-1 November 2014) and Defensive Homicide).
  3. However, it differs from common law self-defence, which does not specify the type of harm that must be threatened before a person can raise self-defence. At common law, even if a person defendshimself or herselfagainst less serious harm, or acts to protect property or prevent crime, s/hemay successfully raise self-defence if the jury finds s/hebelieved upon reasonable grounds that his or heractions were necessary (Zecevicv Director of Public Prosecutions (1987) 162 CLR 645; R v McKay [1957] VR 560. See also Babic v R [2010] VSCA 198).
  4. The Crimes Act 1958 s322H defines “really serious injury”as including serious sexual assaultfor the purposes of Part IC, but otherwise does not define the term.
  5. Although it has not yet been determined, it seems likely that “really serious injury” can include psychological injuries as well as physical injuries. It will be for the jury to decide whether the accused was threatened with an “injury”, as well as whether that threatened injury was “really serious”.

Reasonable Response

  1. The prosecution must prove that the conduct was not a reasonable response in the circumstances as the accused perceived them to be (Crimes Act 1958 s322K(2)(b)).
  2. This partof the statutory test is based on laws in other Australian jurisdictions (eg, s418(2) of the Crimes Act 1900 (NSW) and s10.4(2) of the Commonwealth Criminal Code). These provisions have been interpreted by the courts as discussed below.
  3. The question of whether the conduct was a ‘reasonable response’ is an objective test. Although it is an objective test, the reasonableness of the response must be considered in light of the circumstances as subjectively perceived by the accused. The relevant determination is whether there is a reasonable possibility that the accused’s conduct was a reasonable response in the circumstances as he or she perceived them (Presidential Security Services of Australia Pty Ltd v Brilley(2008) 73 NSWLR 241;R v Katarzynski [2002] NSWSC 613;R v Trevenna [2004] NSWCCA 43; Oblach v R(2005) 65 NSWLR 75;Crawford v R [2008] NSWCCA 166).
  4. This second limb is where the test for self-defence differs from the position at common law, because the accused is not required to have reasonable grounds for his or her belief that it was necessary to act in self-defence. Rather, it is sufficient that the accused genuinely held the belief and that, objectively, his or her response to that belief is reasonable (R v Katarzynski [2002] NSWSC 613; Oblach v R [2005] NSWCCA 440).
  5. It is up to the jury to decide what to take into account in determining the reasonableness of the accused’s response in the circumstances. The jury is assessing the response of the accused (not of a reasonable person), so personal attributesincluding, for example, the accused’s age, gender and state of healthas well as the surrounding physical circumstances will be relevant (R v Katarzynski [2002] NSWSC 613. See alsoR v Forbes [2005] NSWCCA 377;Ward v R [2006] NSWCCA 321).
  6. The reasonableness of the response should also be assessed in terms of the objective proportionality of the conduct to the perceived situation(Flanagan v R [2013] NSWCCA 320; see also the report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General entitled Model Criminal Code Ch 2: General principles of criminal responsibility: final report (Canberra, AGPS, 1993); Oblach v R(2005) 65 NSWLR 75).
  7. Again, while objective proportionality is a consideration under the second limb of the statutory self-defence test, it must be determined, in light of the threat that the accused genuinely believed to exist; that is, against the circumstances as the accused perceived them.
  8. More generally, evidence of “family violence” can affect the determination of whether the accused’s conduct was a reasonable response in the perceived circumstances where:
  • he or she is responding to a harm that is not immediate; and/or
  • his or her response involved force in excess of the force involved in the perceived threat. See “Family Violence” below for further information.

Defence against Lawful Force

  1. Unlike at common law, the statutory defence of self-defencedoes not apply if the accused is responding to lawful conduct, and knows at the time of his or her response that the conduct is lawful (Crimes Act 1958s322L). This provision replicates the previous s9AF of the Crimes Act 1958 (see Bench Notes: Statutory Self-Defence (Pre-1 November 2014) and Defensive Homicide).

Accused as the Initial Aggressor

  1. At common law, one of the factors to be taken into account in determining whether the accused was acting in self-defence was whether he or she had been the initial aggressor. However, there was no rule to prevent lawful self-defence 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 counter attack on the accused. Initial aggression by the accused was part of the surrounding circumstances the jury was required totake into account in determining whetherthe accused was acting in self-defence(Zecevicv Director of Public Prosecutions (1987) 162 CLR 645).
  2. Where it is alleged that the accused was the initial aggressor, the jury must 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 of Others and Protection of Property