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8.3.1 - Charge: Common Law Self-Defence

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This charge should be given if there is evidence from which a jury might infer that the accused was acting in self-defence when s/he:

  • Committed an offence other than murder, manslaughter, defensive homicide, attempted murder or attempted defensive homicide prior to 1 November 2014; or
  • Committed one of the offences listed above prior to 23 November 2005.

This charge should be given as part of the instruction that the jury must exclude any lawful justification or excuse.

If the offence is a homicide offence and was committed on or after 23 November 2005 and before 1 November 2014, see the following as applicable:

If the offence is any offence committed on or after 1 November 2014, see the following:

In this case the defence has alleged that NOA was acting in self-defence when s/he [insert relevant act].[1] 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 they may act to defend themselves if they believe, on reasonable grounds, that it is necessary to do what they did in self-defence.

They may do whatever they believe is necessary to defend themselves, even if this involves committing what would otherwise be a criminal act. So in this case, the prosecution must prove that NOA did not act in self-defence. Because the prosecution must prove the accused's guilt, it is not for NOA to prove that s/he did act in self-defence.

Elements of Self-Defence

There are two possible ways for the prosecution to prove that the accused was not acting in self-defence. I will explain them to you, and then examine some factors you should take into account in making your decision.

No Belief in Necessity

The first way in which the prosecution can prove that NOA was not acting in self-defence is to prove, beyond reasonable doubt, that when s/he [insert relevant act], s/he did not believe that it was necessary to do what s/he did to defend him/herself.

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 it was necessary to react to the threat with force, and to do what s/he did in order to defend him/herself - or was s/he acting for some other purpose, such as [insert relevant example from the evidence and/or arguments – e.g. to attack another or in retaliation for a past attack]?

In making this assessment, you must consider the circumstances as NOA perceived them to be at the time s/he committed the acts. It does not matter if you think s/he was mistaken about the danger s/he faced, or you believe that s/he overreacted to the threat. The question here is whether the prosecution can prove that NOA did not believe it was necessary to act in the way s/he did, to defend him/herself against the danger s/he thought s/he faced at the time.

Not Based on Reasonable Grounds

The second way in which the prosecution can prove that NOA was not acting in self-defence is by proving that even if s/he believed his/her acts were necessary, that belief was not based on reasonable grounds.

In determining whether this belief was based on reasonable grounds, you must again consider the circumstances as NOA perceived them to be at the time s/he [insert relevant act]. You must determine whether the prosecution has proven that the accused had no reasonable basis to believe it was necessary to act in the way s/he did, in response to the threat s/he believed s/he faced. It does not matter if NOA was mistaken about that threat, so long as his/her response to the threat, in all of the circumstances as s/he perceived them to be, was based on reasonable grounds.

If the prosecution fails to prove to you beyond reasonable doubt either that NOA did not believe it was necessary to act in the way s/he did to defend him/herself, or that that belief was not based on reasonable grounds, then you must find him/her not guilty of [insert offence].

Considerations

In determining whether NOA acted in self-defence, you must take into account all of the circumstances in which the act occurred. 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 self-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]

It is for this reason that the law does not require that the force used in self-defence 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. You can also take it into account in deciding whether the accused’s belief was based on reasonable grounds.

In this case, the prosecution alleged that NOA’s acts were plainly disproportionate to the threat 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 a person to retreat from an attack before defending himself or herself, 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.

A failure to retreat is also one of the factors that you can take into account in deciding whether the accused’s belief in the necessity of his/her actions was based on reasonable grounds.

[If it is alleged that the accused engaged in a pre-emptive strike, add the following shaded section]

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 against threatened harm, as long as that belief is based on reasonable grounds.

However, the lack of immediacy of a threat may affect your determination of what the accused believed to be necessary in the circumstances. It may also affect your decision about whether that belief was based on reasonable grounds. It is, however, just one factor to be considered in deciding whether the prosecution has proved that NOA did not believe, on reasonable grounds, that what s/he was doing was necessary in self-defence.

[If it is alleged that the accused was the original aggressor, add the following shaded section]

In this case, you have heard evidence that it was NOA who started the confrontation with NOV, by [insert relevant evidence]. This may be a significant matter in deciding whether NOA acted in self-defence. A person cannot start an attack, and simply claim that s/he was then defending him/herself from the victim’s response to his/her original aggression.

However, when deciding whether NOA believed that his/her actions were necessary, and in deciding whether there were reasonable grounds for that belief, you should take into account matters such as [insert any relevant factors, such as the extent to which the accused declined further conflict, stopped using force, faced a disproportionately escalated level of force in response, was defeated by the victim, was subjected to a new attack, or attempted to retreat].

[If it is alleged that the accused was intoxicated, add the following shaded section]

[Warning: As noted in Common Law Self-Defence, Victorian courts have not yet addressed the question of whether intoxication is relevant to the objective element of self-defence. This part of the charge is based on the assumption that intoxication is relevant to that element, as was held by the NSW Supreme Court in R v Conlon (1993) 69 A Crim R 92 and R v Katarzynski [2002] NSWSC 613. However, as it is possible that Victorian courts will adopt the approach taken in R v McCullough [1982] Tas R 43 and Ninness v Walker (1998) 143 FLR 239, holding that intoxication is not relevant to the objective element, judges should give consideration to this issue before charging the jury.]

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.

You should also take any intoxication into account in determining whether the accused’s belief was based on reasonable grounds.

Summary

To summarise this element, the prosecution must prove, beyond reasonable doubt, that NOA either:

[1] This charge is drafted for use in cases in which the defence has alleged self-defence. It will need to be modified if used in cases where the possibility of self-defence arises on the evidence, but is not alleged by the defence. It will also need to be modified if there is evidence that the accused was acting in defence of another, in defence of property, or to prevent a crime.

Last updated: 1 November 2014

See Also

8.3 - Common Law Self-Defence

8.3.2 - Checklist: Common Law Self-Defence