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8.2.2 - Charge: Defensive Homicide

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[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 given after the charge on murder self-defence.

The charge may be modified for use in cases where the accused has been charged with the offence of defensive homicide.]

If it is alleged that the homicide was committed on or after 1 November 2014, see Charge: Statutory Self-Defence.

If it is alleged that the homicide was committed before 23 November 2005 see Charge: Common Law Self-Defence.]

Introduction

According to the law, people who kill in the belief that what they are doing is necessary to defend themselves from death or really serious injury do not commit murder, even if their belief is unreasonable. However, if they do not have reasonable grounds for believing that what they are doing is necessary in self-defence, they will be guilty of the offence of defensive homicide.

To find the accused guilty of this offence, you must be satisfied that:

Reasonable Grounds

In determining whether NOA is guilty of this offence, you must focus on the belief that NOA said s/he had.[1] That is, you must ask whether or not s/he had reasonable grounds for believing it was necessary to act in the way s/he did, to defend him/herself from death or really serious injury.

In making your determination, you must consider the circumstances as NOA perceived them to be at the time s/he killed NOV. You must determine whether the prosecution has proven that, in those circumstances, there was no reasonable basis for the accused to have believed that it was necessary to act in the way s/he did, in response to the perceived threat.

It does not matter if NOA was mistaken about that threat. The question is whether or not there were reasonable grounds for NOA to believe in the need to respond to the threat in the way s/he did, in the circumstances as s/he perceived them to be.

Considerations

When determining whether the prosecution has proven that NOA had no reasonable grounds for believing his/her actions were necessary, you must again take into account all of the circumstances in which the killing 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.]

As was the case in relation to self-defence, you must consider the defence’s claim that NOA was reacting to an imminent threat, and could not be expected to weigh precisely the exact amount of defensive action required.

[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.]

Once again, 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 had reasonable grounds for believing his/her actions were necessary to defend him/herself from the threat of death or really serious injury.

In this case, the prosecution alleged that NOA’s acts were plainly disproportionate to the threat s/he perceived. [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]

The evidence that NOA had the opportunity to retreat from the [insert relevant act], but failed to do so, is also relevant to this issue. Although the law does not require people to retreat from an attack before defending themselves, a failure to retreat is one of the factors that you can take into account in deciding whether NOA had reasonable grounds for believing that his/her actions were necessary.

[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 said [insert evidence and/or arguments].

As I told you in relation to self defence for murder, 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 whether NOA had reasonable grounds for believing that his/her actions were necessary.

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

While evidence that NOA was intoxicated at the time that s/he [insert relevant act] was relevant to your determination of whether s/he believed it was necessary to act in the way s/he did, you must not take any intoxication into account in determining whether the accused had reasonable grounds for believing in the necessity of his/her actions.[2] The law requires you to consider whether a person who was not intoxicated would have had reasonable grounds for believing those actions were necessary, in the circumstances as perceived by the accused.

[If there is evidence of family violence involving the accused and the victim, add the following shaded section if relevant] [3]

The evidence of "family violence" between NOA and NOV that I mentioned earlier is also relevant in this context. The law says that where a person is killed in circumstances where family violence is alleged, the accused may have reasonable grounds for believing, that his/her conduct was necessary to defend him/herself even if:

I note again that 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 be guilty of defensive homicide if s/he did not have reasonable grounds for believing that it was necessary to act in the way s/he did.

However, as I mentioned earlier, 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:

  1. 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;
  2. The cumulative effect, including psychological effect, on the person or a family member of that violence;
  3. Social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
  4. The general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
  5. The psychological effect of violence on people who are or have been in a relationship affected by family violence;
  6. 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].

 

Summary

To summarise, to find NOA guilty of defensive homicide:

If you are not satisfied that this is the case, then you must find NOA not guilty of defensive homicide.

 

Notes

[1] This charge has been drafted for use in cases where the accused has personally asserted that s/he acted in self-defence. If the issue of self-defence has arisen in another way, it will need to be modified accordingly.

[2] If it is alleged that the intoxication was not self-induced, this section will need to be modified (see s9AJ(4)). See Crimes Act 1958 ss9AJ(5) and (6) for the definition of "self-induced" intoxication. Model charges are available from Charge: Statutory Intoxication (23/11/05 – 31/10/14) (Self-induced) or Charge: Statutory Intoxication (23/11/05 – 31/10/14) (Self-induced contested), as relevant.

[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 2015 ss59, 60).

Last updated: 29 June 2015