8.9.2.2. - Charge - Murder Self-Defence[1]
[This charge should be given if it is alleged that the accused committed murder on or after 23 November 2005 and before 1 November 2014, and there is evidence from which a jury might infer that he or she was acting in self-defence. It should be inserted where indicated in the murder charge.
If it is alleged that the accused committed murder on or after 1 November 2014, see Charge: Statutory Self-Defence.
If it is alleged that the accused committed murder before 23 November 2005 see Charge: Common Law Self-Defence]
Murder Self-Defence
In this case the defence has alleged that NOA was acting to defend him/herself when s/he killed NOV.[2] I therefore need to give you some directions about “self-defence”.
The law recognises the right of people to defend themselves from attacks or threatened attacks. The law says that people may even commit acts that would otherwise be classified as “murder” if they believe those acts are necessary to defend themselves from being killed or really seriously injured. So in this case, even if you are satisfied that the prosecution has proven all of the other elements of murder beyond reasonable doubt, NOA will not be guilty of that offence if s/he acted in self-defence.
Because the prosecution must prove the accused’s guilt, it is for the prosecution to prove, beyond reasonable doubt, that NOA was not acting in self-defence when s/he killed NOV. It is not for NOA to prove that s/he did act in self-defence.
To prove that the accused was not acting in self-defence, the prosecution must satisfy you, beyond reasonable doubt, that when s/he killed NOV, s/he did not believe that it was necessary to do what s/he did to defend him/herself from the infliction of death or really serious injury.
This involves assessing the accused’s state of mind at the time s/he [insert relevant act]. What threat did s/he believe s/he faced? Did s/he believe s/he was defending him/herself from the infliction of death or really serious injury? If so, did s/he believe it was necessary to react to that threat with force, and to react with the level of force used in order to defend him/herself from that harm - or was s/he acting for some other purpose, such as [insert relevant example from the evidence and/or arguments – e.g. in retaliation for a past attack]?
[If the harm the accused allegedly believed s/he faced may not amount to death or really serious injury, add the following shaded section.]
According to the law, a person may only commit what would otherwise be considered murder if s/he believes s/he is responding to a threat of death or really serious injury. If s/he intentionally kills someone in response to what s/he believes is a less serious threat, s/he will be guilty of murder. You must therefore determine whether NOA believed s/he was responding to a threat of death or really serious injury when s/he killed NOV. If the prosecution can prove, beyond reasonable doubt, that s/he did not, then this element will be met.
In making this assessment, you must consider the circumstances as NOA perceived them to be at the time s/he killed NOV. It does not matter if you think s/he was mistaken about the danger s/he faced, or if you believe that s/he overreacted to the threat or acted unreasonably. The question here is what NOA believed was necessary in the circumstances. You must determine whether the prosecution has proven that NOA did not believe it was necessary to act in the way s/he did, to defend him/herself against the threat of death or really serious injury that s/he thought s/he faced at the time.
It is only if you are satisfied that NOA did not believe s/he was threatened with death or really serious injury, or did not act in the belief that what s/he did was necessary to defend him/herself from that threat, that this element will be satisfied.
Considerations
You must take into account all of the circumstances in which the killing occurred when determining whether NOA believed that it was necessary to do what s/he did to defend him/herself from the infliction of death or really serious injury. This includes [insert any relevant factors, such as the nature of the perceived threat, any previous relationship between the parties, any prior conduct of the victim, or any personal characteristics of the accused that may have affected his or her behaviour, and relate to the facts in issue.]
You should also consider the defence’s claim that NOA was reacting to an imminent threat. In such circumstances, a person cannot be expected to weigh precisely the exact amount of defensive action required. You should not look at the situation with the benefit of hindsight, but instead take into account the fact that calm reflection cannot always be expected in such a situation.
[If it is alleged that the force used was disproportionate to the threat, add the following shaded section. However, if there is evidence of self-defence in the context of family violence, see the shaded section on family violence instead.]
It is for this reason the law does not require that any defensive force used be exactly proportionate to the harm threatened.
However, if you consider that the accused’s actions were out of all proportion to the harm threatened, that is one of the factors you can take into account in determining whether s/he believed his/her actions to be necessary in the circumstances.
In this case, the prosecution alleged that NOA’s acts were plainly disproportionate to the threat s/he believed s/he faced. [Insert evidence and/or arguments]. The defence responded [insert evidence and/or arguments].
[If it is alleged that the accused failed to retreat, add the following shaded section.]
In this case, you have heard evidence that NOA had the opportunity to retreat from the [insert relevant act], but failed to do so.
Although the law does not require people to retreat from an attack before defending themselves, you can take into account a failure to do so when determining whether NOA believed that what s/he was doing was necessary in self-defence.
[If it is alleged that the accused engaged in a pre-emptive strike, add the following shaded section. However, if there is evidence of family violence between the accused and the victim, see the shaded section on family violence instead.]
In this case, the defence claimed that NOA was acting in self defence, even though s/he was not being physically attacked at the time s/he [insert relevant act]. The defence claimed that his/her actions were necessary despite the lack of an immediate threat, to defend against [insert relevant evidence].
The law says that people are not required to wait until an attack is actually in progress before defending themselves. They are entitled to use whatever force they believe is necessary to defend themselves from being killed or really seriously injured.
However, the lack of immediacy of a threat is one of the factors you can take into account in determining what the accused believed to be necessary in the circumstances.
[If it is alleged that the accused was intoxicated, add the following shaded section.]
In this case you have heard evidence that NOA was intoxicated at the time that s/he [insert relevant act]. If you find that s/he was intoxicated, you should take this into account when assessing whether s/he believed it was necessary to act in the way s/he did. This is because the issue to be decided is what the accused believed was necessary in all of the circumstances, including his/her state of intoxication.
[If there is evidence of family violence involving the accused and the victim, add the following shaded section if relevant.] [3]
In this case you have heard evidence of what is called “family violence” between NOA and NOV. [Insert evidence and/or arguments].
The law says that where a person is killed in circumstances where family violence is alleged, the accused may believe that his/her conduct was necessary to defend him/herself even if:
• [If relevant] s/he is responding to a harm that is not immediate;
• [If relevant] his/her response involves the use of force in excess of the force involved in the harm or threatened harm.
This does not meant that a person who has suffered family violence may use any level of force in any circumstances. A person who has suffered family violence will still be guilty of murder if s/he did not believe that it was necessary to act in the way s/he did.
However, the law recognises that in determining whether a person was defending him/herself from “family violence”, it is not a simple matter of determining whether [an attack was in progress at the time the accused acted / the accused’s response was proportionate to the threatened harm]. Such cases are complicated, and require you to consider all of the evidence, including evidence of:
[Where there is evidence of one or more of the following matters (listed in Crimes Act 1958 s9AH(3)), the judge should identify the evidence and relate it to the facts in issue:
(a) The history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) The cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) Social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) The general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) The psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) Social or economic factors that impact on people who are or have been in a relationship affected by family violence.]
In this case, the defence has submitted that NOA was acting defensively when s/he [insert relevant act and arguments]. The prosecution denied this was the case, alleging [insert relevant evidence and/or arguments].
If, in light of all of the circumstances, you are satisfied that NOA did not believe that it was necessary to do what s/he did to defend him/herself from the infliction of death or really serious injury, then this fourth element will be met.
Summary
[This section should replace point four onwards in the summary to the murder charge.]
· Four – that NOA did not believe that it was necessary to do what s/he did to defend him/herself from the infliction of death or really serious injury.
If you find that these matters have not been proven, then you must find NOA not guilty of murder.
However, a finding that NOA is not guilty of murder is not the end of the matter. If you decide that NOA is not guilty of murder because s/he was acting in self-defence, you must then consider whether s/he is guilty of “defensive homicide”. I will now explain that offence to you.
[Insert defensive homicide charge.]
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[1] This document was last updated on 2 November 2014.
[2] This charge is drafted for use in cases in which the defence does not deny that the accused killed the victim, but contends that it was done in self-defence. It will need to be modified if used in the following circumstances:
· If self-defence arises on the evidence, but is not alleged by the defence;
· If the defence denies that the accused killed the victim; or
· If there is evidence that the accused was acting in defence of another.
[3] If the trial commenced after 1 November 2014, irrespective of the date of the alleged offence, certain preliminary directions may need to be given to the jury. See Preliminary Directions: Self-Defence in the Context of Family Violence (Jury Directions Act 2013 s32).