A paper by Peter Zahra SC
Self-Defence is not a "Defence"Once self-defence is raised, the issue is whether the Crown has established that the accused was not acting in self-defence. In
R v Dziduch (1990) 47 A Crim R 378, Hunt J said at 380:
It is vital to identify the issue which is to be decided as being: "whether the Crown has established that the accused was
not acting in self-defence."The direction should contain a reminder that the
Crown bears the onus of proving that the accused did
not act in self-defence.Hunt J in
Dziduch went on to say at 381:
R v Alpagut (unreported CCA (NSW) 26.7.89) the trial judge repeatedly described the issue as a "defence" and had separated it from the issues which the Crown had to establish. He told the jury that they had first to accept the statement made by the accused before the issue of self-defence arose in the case, and he suggested that the jury had to resolve a conflict between the victim and the appellant as to what happened. He also described the issues which arose as being whether the accused
was acting in self-defence; whether the accused
did believe on reasonable grounds that it was necessary to do what he did; and whether the force used by the appellant
was excessive having regard to the danger which he believed that he faced. The Court of Criminal Appeal said that the directions suggested that the accused bore some onus of establishing the "defence". Hunt J went on to make the following remarks on the directions as to onus:
In the present case, for example, the judge should have directed the jury from the outset that, together with the unlawful taking, from the person of another, against his will, with the intention of depriving him permanently, and with force or putting him in fear, the Crown had to establish also that the accused was not acting in self-defence. One way in which that could be established, he could have gone on to say to the jury, is that no occasion of self-defence ever arose because, as the Crown had argued, the accused's version should not raise any reasonable doubt in their minds as to whether the evidence given by the victim was a truthful account of what occurred.
Secondly, it is very unwise ever to refer to the issue of self-defence as a "defence", unless it is only to point out that it is not really a defence at all.
Thirdly, it is vital to identify the issue which is to be decided as being whether the Crown has established that the accused was
not acting in self-defence. To that direction should be added a reminder that the Crown bears the onus of proving that the accused did
not act in self-defence. One way of explaining such a direction which makes the point correctly where the Crown has to prove a negative is to say that the Crown must eliminate any reasonable possibility that the accused was acting in self-defence.
Fourthly, it is best to tell the jury that it is always somewhat difficult to give directions upon the issue of self-defence in a way which completely avoids any suggestion that the accused has raised self-defence by way of a defence to the charge. That puts the jury fairly on notice that any direction which otherwise may not express the onus completely correctly was not intended to alter the general direction on the Crown's onus which had been given.
Fifthly, the fundamental question in relation to the issue of self-defence is whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did. The Crown may establish either that the accused had no such belief or that there were no reasonable grounds for such a belief. If the Crown fails to establish one or other of those two alternatives, the accused is entitled to be acquitted of the charge.
Finally, the various issues which arise in relation to that fundamental question should then follow, each of them (so far as it is possible) expressed in a way which emphasises that the onus lies on the Crown in relation to it."
Zecevic V DPP (1987) 61 ALJR 375 at 379 per Wilson, Dawson and Toohey JJ:
SELF DEFENCE- PrinciplesIn
Viro v The Queen (1978) 141 CLR 88, six propositions were formulated by Mason CJ, Aickin and Stephen JJ. They were expressed as follows:
(b) By the expression "reasonably believed" is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.
2. If the jury is satisfied beyond reasonable doubt that there was no reasonable believe by the accused of such an attack no question of self-defence arises.
3. If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.
4. If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.
5. If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury - did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?
6. If the jury is satisfied beyond reasonable doubt that the accused did not have such a believe the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter."
It was significant in
Viro that all the members of the Court, with the exception of Jacobs and Murphy JJ, considered that self-defence contained an objective element in the requirement that the accused reasonably believed or believed on reasonable grounds that the action taken was necessary or reasonably proportionate.The ZecevicTest: General ApplicationThe appellant in
Zecevicv DPP (1987) 61 ALJR 375 challenged the correctness of the
Viro formulation in its insistence on an objective element (especially propositions 1 and 2) arguing that it should no longer be a part of the common law of self-defence that an accused must
reasonably have believed that he was threatened with death or serious bodily harm. The submission attacked not only the insistence on reasonable belief but also the requirement in
Viro that the action taken was reasonably proportionate to the danger.After considering the difficulties in the
Viro formulation, the Court went on to restate the law of self-defence. Wilson, Dawson and Toohey JJ said at 381:
Further at p381:
Self-defence is not confined to a response to an unlawful attack:In
Viro self-defence was confined to a response to an unlawful attack. The Court in
Zecevic held that it is not to be so confined. At p 382, Wilson, Dawson and Toohey JJ said:
R v Thomas (1992) 65 A Crim R 269.Excessive force:In
Zecevic it was made clear that the question of whether the force used by the accused was proportionate to the threat offered is only one of evidence, and there is no rule of law that the use of excessive force necessarily establishes that the accused did not act in self-defence (see joint judgment at p 381 referred to above). Also in
R v Lean & Aland (1993) 66 A Crim R 296, the accused used a glass to strike the victim who, it was said, had assaulted her. The judge directed the jury that the glass used by the accused in self-defence was a "deadly weapon" and that the Crown had established that excessive force had been used. The consequence, according to the summing up, was that the Crown necessarily succeeded upon the issue of self-defence.On appeal Hunt CJ at CL said at p299:
It is nevertheless necessary to consider whether the summing up as a whole placed the issue of self-defence before the jury correctly. The judge had earlier directed the jury that whether or not force is excessive was a question of fact which they had to decide. But that statement is immediately (and expressly) qualified by the erroneous direction in question. It also follows an equally erroneous direction of law that the victim of an assault is not permitted to use excessive force. For the reasons which I have already given, that is no longer the law. The law must be stated in the way it is laid down in
Zecevic v DPP (Vic) and in
Dziduch. It was not in this case, and there has been a misdirection."
Alternative Courses of ActionAdditionally, in
Lean and Aland, the trial judge directed the jury that in considering whether the Crown had established that there were no reasonable grounds for the belief on the part of the particular accused that it was necessary in self-defence to do what she did, it was relevant to consider whether some lesser force would have been seen by her as being sufficient in order to defend herself. The trial judge gave the following directions:
Hunt CJ at CL went on to say that this direction makes it plain that the accused bore an onus of some kind to produce the evidence upon which the Crown could discharge its onus. He said further that all these alternative courses of action could have been put to the accused by the Crown in cross examination of the accused but they did not appear to have been. His Honour went on to say:
Dziduch, Hunt J said at 380:
His Honour went on to say that a number of further directions need to be given in this context. He said at 381:
Where, as in the present case (and as is common), the accused has not only raised the issue of self-defence but he has also denied any intention to do the physical act involved in the offence charged (here, the wounding), the direction on self-defence must nevertheless assume that each of the ingredients of the offence charged has been made out. For example, the appellant's explanation for the presence of the knife in this case was that he merely pulled it out in order to threaten the victim and to prevent him from attacking him. In such a case, the jury should not be asked whether the Crown had established that there were no reasonable grounds for a belief on the part of the accused that it was necessary merely to threaten the victim. Such a direction poses the wrong issue and, in cases where the question of reasonable proportion arises, it places a far heavier burden on the Crown than the law requires. In the present case, for example, the jury should have been told that the Crown had to establish (as one of the relevant circumstances) that the force in fact used by the appellant in deliberately wounding the victim with the knife with intent to cause really serious bodily injury was out of all proportion to the attack which he said that he thought was being made upon him.
Those directions, in my view, are in accordance with the decision of the High Court in
Zecevic v DPP (1987) 162 CLR 645 at 661-663; 25 A Crim R 163 at 173-175, but with the added virtue that they are expressed so as to emphasise at all times that the onus lies on the Crown in relation to this issue of self-defence."
Is it correct to describe the test as a subjective / objective testIn
Dziduch, the trial judge told the jury that the
first question which they had to answer was "whether the accused believed on reasonable grounds that it was necessary to act in self-defence". He then said that, if the answer to that question was "yes", there was a
second question which they had to answer before the accused could be acquitted, which was "whether it was necessary for him to do what he did in self-defence" On appeal, Hunt J said at p 382:
This, his Honour said, was an erroneous division of the issue of self-defence into two questions (see p383).Belief of the Accused not the hypothetical personThe decision as to whether there were reasonable grounds for any belief on the part of the accused that it was necessary in self defence to do what he did is not a completely objective one.It is the belief of the accused, and not that of the hypothetical person in the position of the accused which has to be reasonable.In
R v Conlon (1993) 69 A Crim R 92, the accused was charged with murdering two persons who attempted to steal his cannabis plants. The sole issue at trial was self-defence. The accused elected to be tried by judge alone. The facts were that the accused, on hearing a noise outside his home, observed the two deceased H and N in the process of removing plants. The two deceased followed the accused inside his house. N jumped on the accused and H hit the accused on the head with a "substantial and heavy" plate with considerable force causing the plate to shatter. N kicked the accused on the floor, causing a number of injuries. The accused managed to escape and obtained a .22 calibre rifle and placed the safety catch in the "off" position. He ran at N and H, firing the rifle as he did so. N was shot in the abdomen and the accused then continued to run after H. He shot H twice to the back of each leg as he ran to the front of the house, the third shot entered his upper chest and the last shot hit him in the head. The accused then shot H in the head at close range as he crouched on the ground. The accused then returned to N, tried to shoot him in the head but had run out of bullets. He then attacked N with an axe and knife.As the tribunal of fact His Honour went on to consider a number of questions relevant to the issue of self-defence:
Although the accused agreed with the police interrogators that the two men were probably trying to escape from him when he appeared with the rifle, he said in his evidence before me (which I accept) that this had merely been an assumption made by him at the time of the interview with the benefit of hindsight. The evidence does not satisfy me that I should make a finding against the accused that he knew at the time that the two men were attempting to escape."
His Honour went on to say at 96:
The accused told the police that he had been drinking whisky for five to six hours at the time of these events, consuming just under a bottle, and that he had been smoking marijuana all afternoon, probably dozens of "smokes". The accused told the police that he was "blind drunk", "stoned as a maggot", and too drunk to co-ordinate properly. It was submitted by the Crown that these statements by the accused were no more than attempts by him to excuse his behaviour and also possibly to explain it and to rationalise it in his own mind, so that I should not accept them as accurately portraying his condition at the time. The Crown also submitted that the accused, as a long-time abuser of alcohol and marijuana, had attained a sufficient degree of tolerance as to warrant my disregarding the effect of whatever alcohol and marijuana he had in fact consumed.
The Crown does, of course, have to eliminate any reasonable possibility that the accused's perception was reduced by reason of his intoxication. I have had what is still the unusual benefit of not only seeing the accused give evidence but also of seeing the video recorded interviews conducted by the police over three and a half hours and hearing the 10-minute audio recorded interview as well. That has given me a considerable advantage in assessing the veracity of the accused's statements. I am not satisfied that the Crown has eliminated the reasonable possibility that the accused's perception was so reduced when he first came to fire the rifle, hitting Neill in the abdomen, and thereafter.
At this stage, the accused was in the dark. I am not satisfied that he knew that he had hit Neill. The accused told the police that he followed Hulands around the side of the house because he feared that Hulands was probably going to kill him if he did not get him before he had the opportunity to do so. The accused repeatedly told the police that there had been someone out there who was going to kill him. He still thought that there could have been others out there. I am not satisfied that the accused knew that the next three bullets hit Hulands. He told the police that, when he saw Hulands near him, crouching at the front of the house, he thought that he might have been trying to jump him in the dark, that Hulands was going to try and kill him. Again, and for the same reasons, I am not satisfied that the Crown has eliminated the reasonable possibility that the accused's perception was reduced by his intoxication when he fired the rifle for the last time, the act which in fact caused the death of Hulands."
The Crown submitted that the accused was motivated by anger at the two deceased for the intrusion. His Honour, in addressing this submission, said at 97:
With all due respect to the earnest arguments put forward by the Crown, however, this particular submission is a good illustration of the unreality of dissecting into minute detail events which could have taken only five to 10 minutes at the outside, by over three and a half hours interrogation, involving more than 1,000 questions (many of them repetitive). I do not exclude the likelihood that anger played some small part in reaction of the accused, but anger at finding oneself in a particular situation of being attacked is not in every case inconsistent with fear for one's safety in that attack, as the Crown accepted. My overall impression of the statements made by the accused and of his evidence is that fear was overwhelmingly the dominant state of mind on his part. I do not accept the Crown's argument that self-defence must be the
sole state of mind on the part of the accused: cf
Viro (1978) 141 CLR 88 at 127.
Accordingly, I am not satisfied beyond reasonable doubt that the accused did not believe that it was necessary in self-defence to fire the bullet which struck Neill in the abdomen, or to fire the bullet which in fact caused the death of Hulands, with the intention of at least inflicting grievous bodily harm upon each of them."
The Crown argued that the force used by the accused was not proportionate to the threat offered by the deceased and thus was unreasonable. His Honour said at 98:
However, it is well established that a person defending himself from a threatened attack and who has to react instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required:
Palmer  AC 814 at 831-832;
Zecevic v DPP (at 662-663; 174-175). The accused was not obliged to wait until the attack upon him was repeated. If he honestly believed that the attack would be repeated, he was entitled to take steps to forestall that threatened attack before it was begun:
Morgan v Colman (1981) 27 SASR 334 at 336-337; (1981) 4 A Crim R 324 at 326. This was a situation in which a pre-emptive strike was justified:
Beckford  AC 130 at 144."
The Crown argued that the decision as to whether there were reasonable grounds for any belief on the part of the accused that it was necessary in self-defence to do what he did was a completely objective one. His Honour went on to say at 98:
It seems to me that it would require a very clear statement by the High Court that it had intended to substitute a completely objective assessment for that of a mixed objective and subjective nature as had been posed in
Viro. No such statement has been made, and the issue does not appear to have been discussed in any case since
Zecevic v DPP. The submission by the Crown that the decision is a completely objective one is rejected.
As there are subjective components of the test, those personal characteristics of an accused person which might affect his appreciation of the gravity of the threat and the reasonableness of his response need to be taken into account. In
Conlon, the relevance of the accused's intoxication as a personal characteristic was clearly an issue (see findings of fact in (2) above). His Honour said at 99:
In applying this view to the particular circumstances of
Conlon, his Honour went on to say at 101:
Accordingly, I find the accused not guilty of the murder of Hulands. As
Zecevic v DPP makes it clear (at 661-662; 173-174), if the Crown fails to discharge its onus in relation to self-defence, the accused has done nothing unlawful, and no question of manslaughter arises."
In relation to the Deceased N, his Honour found that the acts of the accused in returning and striking the deceased with the intention of "putting him out of his misery" was not self-defence and concluded that the elements of murder had been made out. His Honour then went on to consider the defence of diminished responsibility and, having found that the accused discharged his onus in relation to the elements of that defence, found the accused not guilty of murder but guilty of manslaughter.R v Hawes: Consideration of the requirement that the accused's belief be reasonable - Not wholly objective test.In
R v Hawes (1994) 35 NSWLR 294 the accused, who was charged with malicious wounding, had raised an issue of self-defence, based on a reasonable belief that the victim appeared to be affected by drugs and had lunged at him (the accused) with a knife.The Trial Judge directed the jury as follows:
The law however also goes on to require that such a belief must be formed on reasonable grounds - that is to say, the accused must have had, assuming that he had that belief or may have had that belief (because it is important to remember where the onus lies, we will come back to that in a moment), assuming he had that belief, did he hold that belief on reasonable grounds?
You may think that people hold all sorts of things to be true, they hold all sorts of beliefs but, when the grounds for those beliefs are examined, it is found on an objective as opposed to a subjective consideration to be groundless. The law requires there to be both factors: a belief in the mind of the accused, and reasonable grounds for that belief that it was necessary for him to act in his own defence."
Then, having reminded the jury that the onus of disproving self-defence is on the Crown, the judge went on to say:
And, after suggesting that self-defence was "the all important issue" in the case, the judge said:
After some two days of deliberation the jury asked a question seeking "guidelines as to [the] degree of force permissible [or] acceptable in self-defence". Reference was made by counsel to
R v Lean (1993) 66 A Crim R 296 and subsequently the Trial Judge gave the following further direction:
Secondly, did he have reasonable grounds for that belief? Now if the accused, and you must always remember of course where the onus of proof lies, but if the accused did believe that what he did was necessary for his own defence, and I'm talking now in general terms on a hypothetical basis and not necessarily related to this case, and if he had reasonable grounds for that belief, he may do whatever he reasonably believes is necessary up to and of course, in some cases, [including] taking the life of the person whom he regards as his assailant.
The question of whether he has gone beyond self-defence - that is to say, gone beyond doing what he believes on reasonable grounds to be necessary to avoid death or serious injury to himself - may include a question or a circumstance involving whether what he did was excessive. But that's only one of the circumstances to be taken into consideration, by you the jury, in determining whether or not he had the belief that he claims to have had; and secondly, if he had that belief, whether he did so on reasonable grounds."
The accused was convicted and on appeal Counsel argued that the first sentence in the third paragraph above ("found on an objective as opposed to subjective consideration to be groundless") was erroneous, in that it suggested that the test was that of a hypothetical reasonable man rather than the belief of the accused. Hunt CJ at CL said at p 305:
The appellant's third complaint relates to the last paragraph in the first passage which I have quoted from the summing-up. For convenience, I quote it again:
This, it was submitted, conveyed the suggestion that if, upon such examination from a wholly objective point of view, the actions of the accused were seen to be groundless, the Crown must succeed upon the issue of self-defence.
The second alternative test posed by
Zecevic v Director of Public Prosecutions (Victoria) (at 661-663) - that there were no reasonable grounds for any belief by the accused that it was necessary in self-defence to do what he did - is not, of course, a wholly objective one, as I have already pointed out, and if the passage which I have now quoted twice conveyed any impression to the contrary it was a misdirection. I repeat: it is the belief of the accused, based upon the circumstances as he perceived them to be, which has to be reasonable, and not the belief of the hypothetical person in his position.
Taken by itself, without reference to its context, that passage is at least equivocal. The first sentence could be understood as suggesting that the fact that such an examination demonstrated that the actions of the accused were groundless was irrelevant to the issue which the jury had to determine in the second alternative test posed by
Zecevic. But no such suggestion is made expressly and, when followed by the second sentence that "both factors" had to be present, it could be understood as asserting to the contrary.
Once again, however, the context cures whatever error there may have been conveyed by that passage when taken by itself. The judge went on to make it clear that the jury had to look at the circumstances from the accused's point of view rather than to look back in hindsight from the comfort of the jury room."R v Kurtic: Perception of threat based on delusional belief / threatIn
R v Kurtic (1996) A Crim R 57 the accused attacked the victim (a neighbour) with a tomahawk. Evidence was called at the trial from a forensic psychiatrist who said that the accused suffered from a "persecutory paranoid set of beliefs. He instanced in particular, the accused's belief that the victim had entered his flat and had attempted to kill him. The psychiatrist also referred to the appellant as being the subject of such hallucinations. The trial proceed by way of judge alone and the accused was convicted. On appeal it was argued that the verdict was unsafe and unsatisfactory. Turning to the issue of self-defence, Hunt CJ at CL said at p 63:
In the present case, evidence was given by Dr Lewin (a consultant forensic psychiatrist) that, after an examination of the appellant, he had come to the opinion that a number of things in the history which he had taken from the appellant was based upon "a persecutory paranoid delusional set of beliefs". He instanced, in particular, the appellant's belief that the victim had entered his flat during the incident in question and that the victim had attempted to kill him. Dr Lewin also referred to the appellant as being the subject of such hallucinations. In his report, Dr Lewin said that material in the victim's statement and in the appellant's statement "suggests that he may have also been experiencing persecutory delusions involving the victim'. However, he went on to concede that the appellant's history did "not directly confirm this", and that he had insufficient information to form a definitive judgment about the appellant's mental state at the time of the incident in question. He repeated in his evidence that he was unable to give a very definite answer. He concluded by saying:
'It appears to me that on the balance it was that he was suffering from a paranoid psychosis ... That he had delusional ideas, which influenced his behaviour and that had an impact upon his decision making process in acting the way he did.'
He was unable to detect any indirect clinical signs of psychosis at the time when he examined the appellant.
It was submitted in this Court that such a state of mind described by Dr Lewin fell within the principle stated in
Conlon and was relevant to the same issues as an accused's voluntarily induced intoxication. It will no doubt take some time to work out how far the decision in that case, if accepted by this Court as correct, can be taken. (It would not appear to be excluded by the proposed Pt IIA of the
Crimes Act, introduced by the
Criminal Legislation Further Amendment Act 1995 (NSW) (so far passed only by the Legislative Assembly) which was intended to reverse the effect of the decision of the High Court in
O'Connor (1980) 146 CLR 64.) There may well be some problem in seeking to stretch the principle which it states to apply to the present case, as the issue of whether there were no reasonable grounds for a belief that it was necessary in self-defence to do what was done - although not wholly objective - must nevertheless be at least partly objective. Whatever the effect a characteristic personal to the accused may have upon his perception of some particular action as a threat which he faced or upon the reasonableness of his response to what he perceived to be a danger, there must, in my view, be a reasonable possibility that at least some action
in fact took place which could have been mistaken as a threat or danger to the accused before any decision can be made concerning the possibility that his perceptions of that action were affected by that personal characteristic. There was, on the judge's findings, no such action in the present case. However, because of a number of specific findings which the judge made relevant to the application of such a principle in the present case, it is unnecessary to resolve the question of its application here.""
Counsel on appeal further argued that although it was open to the judge to have rejected the appellant's assertion that he was in fact about to be attacked by the victim, it was not open to her to reject the reasonable possibility that the appellant had believed (by reason of an hallucination at the time) that he was about to be attacked. Hunt CJ at CL said at p.65: