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8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

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Commencement and Repeal Information

  1. Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was 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). The Act also introduced a new offence of "Defensive Homicide" (s9AD).
  2. The provisions of the Crimes (Homicide) Act 2005 commenced operation on 23 November 2005, and apply to offences committed on or after that date (Crimes Act 1958 s603).
  3. If the date of the victim’s death differs from the date on which the actus reus was committed, the relevant date for determining whether the provisions of the Crimes (Homicide) Act 2005 apply is the date of death (R v Gould (2007) 17 VR 393; [2007] VSC 420).
  4. Subdivision (1AA) of Division 1 of Part I of the Crimes Act 1958 (which includes ss9AC, 9AD and 9AE) was repealed by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 on 1 November 2014.
  5. This topic therefore applies only to offences committed between 23 November 2005 and 1 November 2014. For self-defence cases in which the offence is alleged to have been committed on or after 1 November 2014, see Statutory Self-Defence.

    Application of Statutory Provisions

  6. Although Crimes Act 1958 s9AB states that the statutory self-defence provisions only apply to the "relevant offences" of murder, manslaughter or defensive homicide, it has been held that they also apply to attempted murder (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315).

    Replacement of Common Law Self-Defence

  7. Where it applies, this statutory defence has replaced the common law defence (Babic v R (2010) 28 VR 297; [2010] VSCA 198). Consequently, common law self-defence is not available when:
  8. However, common law self-defence may be raised when:
  9. See Common Law Self-Defence for information concerning the common law defence.

    When to Charge the Jury about Self-Defence

  10. 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 in the absence of a request (Jury Directions Act 2015 ss14-16). See Directions under Jury Directions Act 2015.
  11. 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 (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).
  12. 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).
  13. 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 defence (R v Kear [1997] 2 VR 555; R v Imadonmwonyi [2004] VSC 361).
  14. At common law, if there was sufficient evidence to raise the possibility of self-defence, the trial judge was required to leave the issue to the jury even if the judge considered the defence 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).
  15. 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 is 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).
  16. 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).
  17. These common law principles may be relevant to the operation of the residual obligation to give directions under Jury Directions Act 2015 s16, but must be read in light of the whole of Part 3 of the Act.

    Onus of Proof

  18. Once the question of self-defence is put in issue, the onus is on the prosecution to prove that the accused did not act in self-defence (Babic v R (2010) 28 VR 297; [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).

    Murder Self-Defence

  19. Section 9AC provides that a person is not guilty of murder if he or she carries out conduct that would otherwise constitute murder "while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury."
  20. Although this provision appears to suggest that it is for the accused to establish that he or she held the relevant belief, this is not the case. The onus is on the prosecution to prove that the accused did not hold such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  21. The accused will therefore not be guilty of murder if the jury:
  22. Unlike common law self-defence (see Common Law Self-Defence), section 9AC does not require the accused’s belief to have been based on reasonable grounds. It is a purely subjective test that focuses on the belief of the accused (Babic v R (2010) 28 VR 297; [2010] VSCA 198; R v Carrington (2007) 16 VR 694; [2007] VSC 422).
  23. This means that even if the prosecution can prove that the accused’s belief in the necessity of his or her action was unreasonable in the circumstances, if the accused genuinely held that belief he or she must not be convicted of murder. However, he or she may be convicted of defensive homicide (see "Defensive Homicide" below).
  24. 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 also 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 people defend themselves against less serious harm, or act to protect property or prevent crime, they may successfully raise self-defence if the jury finds they believed upon reasonable grounds that their actions were necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v McKay [1957] VR 560. See also Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  25. The Crimes Act does not define "really serious injury" for the purposes of s9AC. Although it has not been determined, it seems likely that it can include psychological injuries as well as physical injuries. It will be for the jury to decide whether what the accused was threatened with was an "injury", as well as whether that threatened injury was "really serious".
  26. As s9AC involves a purely subjective test, the jury should not consider what a reasonable or ordinary person would have believed in the circumstances, but what the accused believed (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Virov R (1978) 141 CLR 88; R v Conlon (1993) 69 A Crim R 92 (SC NSW)).
  27. It does not matter if the accused’s belief was mistaken, as long as it was genuinely held (R v McKay [1957] VR 560).
  28. 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).
  29. 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).
  30. 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; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Conlon (1993) 69 A Crim R 92).
  31. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178; R v Carrington (2007) 16 VR 694; [2007] VSC 422).
  32. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448).
  33. If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then 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.
  34. Circumstances of "family violence" can affect the accused’s determination of what is necessary (s9AH). See "Family Violence" below for further information.

    Defensive Homicide

    Warning: The offence of defensive homicide is only available for conduct that occurred between 20 November 2005 and 1 November 2014. The offence of defensive homicide is not available outside that period.

  35. As noted above, the "reasonableness" of the accused’s belief in the necessity of his or her actions is not taken into account when determining whether he or she acted in self-defence. The focus is solely on whether the accused believed his or her actions were necessary (s9AC).
  36. However, Crimes Act 1958 s9AD states that a person who kills in circumstances that, but for s9AC, would constitute murder will be guilty of the indictable offence of "defensive homicide" if he or she did not have reasonable grounds for his or her belief.
  37. Sections 9AC and 9AD therefore create a scheme whereby people who kill in circumstances that would ordinarily constitute murder will not be convicted of murder if they genuinely, but unreasonably, believed their actions were necessary (or if the prosecution cannot disprove such a belief). However, they remain criminally responsible (though to a lesser extent) if the jury finds that the accused’s belief was not based on reasonable grounds.
  38. Although s9AD refers to the accused’s "belief" in the necessity of his or her actions, that section does not only apply to cases where the jury positively finds that the accused believed that his or her actions were necessary. It also applies to cases where the prosecution fails to persuade the jury beyond reasonable doubt that the accused did not have such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  39. In such cases, the jury must focus on the accused’s asserted belief. To convict the accused of defensive homicide, they must find that, if the accused believed his or her actions were necessary to defend himself or herself or another person from the infliction of death or really serious injury, that belief was not held on reasonable grounds (Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  40. This element does not require the jury to determine whether the accused acted unreasonably in the circumstances. It requires the jury to determine whether there were no reasonable grounds for the accused’s belief that it was necessary to do what he or she did (R v Hendy [2008] VSCA 231).
  41. This is not a test about what the hypothetical "reasonable person" might have believed in the circumstances, but about whether the accused had no reasonable grounds for his or her belief, in the circumstances as he or she perceived them to be (R v Portelli (2004) 10 VR 259; [2004] VSCA 178; Virov R (1978) 141 CLR 88).
  42. The accused’s belief will not have been based on reasonable grounds if it was not 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).
  43. In determining whether the accused’s belief was not based on reasonable grounds, the jury may take into account the following matters:
  44. The accused’s intoxication should not be taken into account in determining whether his or her belief was based on reasonable grounds, unless it was not self-induced (s9AJ. See "Intoxication" below for further information).

    Manslaughter Self-Defence

  45. Section 9AE provides that a person is not guilty of manslaughter if:

    he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary –

    (a) to defend himself or herself or another person; or

    (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person –

    and he or she had reasonable grounds for that belief.

  46. This provision substantially replicates the common law of self-defence, in that it involves both a subjective element (a belief by the accused that what he or she was doing was necessary) and an objective element (that the belief was based on reasonable grounds). See "Murder Self-Defence" above for a discussion of the subjective element, and "Defensive Homicide" above for a discussion of the objective element.
  47. However, unlike at common law, s9AE restricts self-defence in the case of manslaughter to situations where people act to defend themselves or other people, or to prevent or terminate the unlawful deprivation of their liberty or the liberty of other people. It does not allow defensive force to be used for the protection of property or the prevention of other crimes (cf. R v McKay [1957] VR 560).
  48. As the test for manslaughter self-defence differs from the test for murder self-defence, in murder cases that raise the possibility of a manslaughter verdict, it will be necessary to charge the jury separately about the requirements of each. See "Procedure for Charging the Jury about Statutory Self-Defence" below.

    Attempts

  49. Where the offence of attempted murder is alleged to have been committed on or after 23 November 2005 and before 1 November 2014, the statutory self-defence provisions in Subdivision (1AA) of Division 1 of Part I apply (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315; R v Carrington (2007) 16 VR 694; [2007] VSC 422).
  50. Where the charge is attempted murder, and the issue of self-defence arises, the alternative verdict of attempted defensive homicide can be left to the jury (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315; R v Carrington (2007) 16 VR 694; [2007] VSC 422; but compare DPP v Ayyad (2014) 44 VR 346; [2014] VSC 629).
  51. If the accused is charged with another offence, such as intentionally causing serious injury, in addition to attempted murder or attempted defensive homicide, it will be necessary to give multiple directions about self-defence. The jury will need to be charged about statutory self-defence in relation to the attempted murder or attempted defensive homicide charges, and common law self-defence in relation to any other charges (R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315).
  52. In such cases, a judge should consider how to accommodate the fact that the jury will be required to consider the less serious charge of attempted defensive homicide (maximum penalty level 4 imprisonment) before the more serious charge of intentionally causing serious injury (maximum penalty level 3 imprisonment) (R v Pepper (2007) 16 VR 637; [2007] VSC 234. See R v Carrington (2007) 16 VR 694; [2007] VSC 422 for an example of how the jury may be directed).

    Defence against Lawful Force

  53. Unlike at common law, the statutory defences of murder self-defence (s9AC) and manslaughter self-defence (s9AE) do 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 (s9AF).

    Accused as the Initial Aggressor

  54.  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 to take into account in determining whether the accused believed it was necessary to act in self-defence or whether there were reasonable grounds for that belief (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).
  55. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178; Ruben Anandan v R [2011] VSCA 413; see also R v Lawson and Forsythe [1986] VR 515 (Ormiston J))

    Intoxication

  56. At common law, it is possible to take into account the accused’s state of intoxication in determining whether the accused believed his or her actions were necessary, as well as in determining whether that belief was based on reasonable grounds (R v Conlon (1993) 69 A Crim R 92 (NSWSC); R v Katarzynski [2002] NSWSC 613).
  57. However, s9AJ(2) of the Crimes Act 1958 states that:

    If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on a person having reasonable grounds for a belief, in determining whether those reasonable grounds existed, regard must be had to the standard of a reasonable person who is not intoxicated.

  58. A "relevant offence" for the purpose of this provision is defined as murder, manslaughter or defensive homicide (s9AB).
  59. The effect of this provision is to prevent intoxication being taken into account in homicide cases when determining whether the accused had reasonable grounds for believing in the necessity of his or her actions. It does not, however, prevent intoxication being taken into account in determining whether the accused believed his or her actions were necessary in self-defence.
  60. Section 9AJ(4) provides an exception for cases in which the intoxication is not self-induced. In such cases regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. See ss9AJ(5) and (6) for the definition of "self-induced intoxication".
  61. For more information, see Statutory Intoxication (23/11/05 – 31/10/14).

    Use of Pre-emptive Force

  62. People are not only entitled to rely on self-defence if they act whilst an attack is in progress or immediately threatened. They are 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).
  63. 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 (in the case of manslaughter or defensive homicide) whether there were reasonable grounds for such a belief (Osland v R (1998) 197 CLR 316).
  64. However, what is believed to be necessary in the circumstances, and whether there were reasonable grounds for such a belief, may be affected by the lack of immediacy of the threat, although this will not necessarily be the case (R v Portelli (2004) 10 VR 259; [2004] VSCA 178).
  65. 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. See also "Family Violence" below).

    Family Violence

  66. The Crimes (Homicide) Act 2005 introduced into the Crimes Act 1958 a new provision concerning homicide cases involving allegations of "family violence" (s9AH). This is defined in s9AH(4) to mean "violence" against a person by a "family member".
  67. "Family member" is defined broadly in s9AH(4), and includes:
  68. "Violence" is also defined broadly in s9AH(4) to mean:
  69. A single act may amount to "abuse" for the purpose of the definition of violence (s9AH(5)(a)). A number of acts that form part of a pattern of behaviour may also amount to "abuse", even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial (s9AH(5)(b)).
  70. Section 9AH(1) provides that, for cases of murder, defensive homicide or manslaughter committed in circumstances where family violence is alleged, people may believe, and may have reasonable grounds for believing, that their conduct is necessary, even if:
  71. The provisions in s9AH(1) clarify what is already the law in relation to self-defence. As noted above (see "Use of Pre-emptive Force"), people are not required to wait until an attack is in progress or immediately threatened before using defensive force. They are entitled to take steps to forestall a threatened attack before it has begun (Osland v R (1998) 197 CLR 316). Similarly, disproportionate force may be used, as long as the accused believed it was necessary, and (in the case of defensive homicide or manslaughter) there were reasonable grounds for such a belief (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).
  72. Sections 9AH(2) and (3) state that, in cases involving allegations of family violence, the following evidence may be relevant in determining whether the accused believed his or her conduct to be necessary, or had reasonable grounds for believing his or her conduct to be necessary:

    (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.

  73. If such evidence is given, the judge will need to explain to the jury its relevance to the facts in issue. This will differ, depending on the area under consideration:
  74. See ‘Chapter 4: Evidence of Relationship and Family Violence’ in the Victorian Law Reform Commission’s Defences to Homicide: Final Report for a more detailed discussion of the relationship between self-defence and family violence, and the use which can be made of the evidence outlined above.[1]

    Family Violence and Self-Defence

  75. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 introduced a new Part 7 into the Jury Directions Act 2013. On 29 June 2015, these provisions were revised and relocated to Part 6 of the Jury Directions Act 2015.
  76. Part 3 of the Jury Directions Act 2015 does not apply to Part 6 of the Act.
  77. Part 6 of the Jury Directions Act 2015 applies to any trial commencing on or after 29 June 2015, regardless of the date of any alleged offence.
  78. For the purposes of Part 6, “family violence” has the same meaning as in s322J(2) of the Crimes Act 1958 (which replicates the previous definition in s9AH, see “Family Violence” above).
  79. The trial judge must give the jury preliminary directions on family violence, in accordance with s59 of the Jury Directions Act 2015, if the defence counsel or the accused requests such directions, unless there are good reasons for not doing so (Jury Directions Act 2015 s58). And the judge may give them if the accused is unrepresented and the judge considers it in the interests of justice to do so (Jury Directions Act 2015 s58(3)).
  80. The judge must give the statutory directions on family violence as soon as practicable after the request is made and the judge may give the direction before any evidence is adduced in the trial. The directions may be repeated at any time during the trial (Jury Directions Act 2015 s58(4)-(5)).
  81. The directions must include all of the following (Jury Directions Act 2015 s59):

    (a) self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and

    (b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and

    (c) […] evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending [...].

  82. The following directions under s60 may also be sought and, if sought, must be given unless there are good reasons for not doing so:

    (a) that family violence—

    (i) is not limited to physical abuse and may include sexual abuse and psychological abuse;

    (ii) may involve intimidation, harassment and threats of abuse;

    (iii) may consist of a single act;

    (iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;

    (b) if relevant, that experience shows that—

    (i) people may react differently to family violence and there is no typical, proper or normal response to family violence;

    (ii) it is not uncommon for a person who has been subjected to family violence—

    (A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;

    (B) not to report family violence to police or seek assistance to stop family violence;

    (iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—

    (A) family violence itself;

    (B) cultural, social, economic and personal factors;

    (c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence […] in relation to the offence charged.

    Content of the Charge

  83. When directing the jury about self-defence there is no set formula to be used (Collingburn v R (1985) 18 A Crim R 294; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Portelli (2004) 10 VR 259; [2004] VSCA 178).
  84. The burden of proof should be made very clear to the jury. They should be told that the accused should only be convicted of murder if the prosecution has proved that he or she did not act in self-defence (R v Alpagut 27/7/1989 NSWCCA; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 10 VR 259; [2004] VSCA 178; Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  85. One way the judge can do this is by explaining to the jury that they must acquit the accused of murder (and go on to consider whether he or she is guilty of defensive homicide), if they find either:
    1. That the accused believed it was necessary to do what he or she did to defend him or herself or another person from death or really serious injury; or
    2. That the prosecution has not proven beyond reasonable doubt that the accused did not have such a belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  86. The judge may explain to the jury that even if they are not sure that the accused held the requisite belief, they may still convict him or her of defensive homicide. In such a case they must assume that the accused held the belief that he or she said that he or she held. They may only convict him or her of defensive homicide if they are satisfied that the accused had no reasonable grounds for that asserted belief (Babic v R (2010) 28 VR 297; [2010] VSCA 198).
  87. When addressing defensive homicide, judges should be careful not to direct the jury that the accused’s conduct must have been unreasonable. The focus of the charge must be on the grounds for the accused’s belief (see, e.g., R v Hendy [2008] VSCA 231).
  88. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 10 VR 259; [2004] VSCA 178).
  89. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Alpagut 27/7/1989 NSWCCA; R v Portelli (2004) 10 VR 259; [2004] VSCA 178).
  90. 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 (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Dziduch (1990) 47 A Crim R 378; R v Portelli (2004) 10 VR 259; [2004] VSCA 178).
  91. 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).

    Procedure for Charging the Jury about Statutory Self-Defence

  92. In most murder cases alleged to be committed on or after 23 November 2005 and before 1 November 2014 in which there is evidence that the accused acted in self-defence, it will be necessary to charge the jury about each of the following matters:
  93. To assist the jury to understand the way in which these offences and defences interact, and the fact that there are different tests for self-defence in relation to murder and manslaughter, it is recommended that these matters be addressed in the order outlined above.

    Notes

[1] This Report can be downloaded at http://www.lawreform.vic.gov.au/sites/default/files/FinalReport.pdf

Last updated: 8 December 2015

In This Section

8.2.1 - Charge: Murder Self-Defence

8.2.2 - Charge: Defensive Homicide

8.2.3 - Checklist: Murder Self-Defence with Manslaughter

8.2.4 - Checklist: Murder Self-Defence with Criminal Negligence Manslaughter

8.2.5 - Checklist: Murder Self-Defence with Unlawful and Dangerous Act Manslaughter

8.2.6 - Checklist: Murder Self-Defence with No Manslaughter

8.2.7 - Charge: Manslaughter Self-Defence

8.2.8 - Checklist: Manslaughter Self-Defence

8.2.9 - Checklist: Unlawful and Dangerous Act Manslaughter

8.2.10 - Checklist: Criminal Negligence Manslaughter

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings