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

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Commencement Information

  1. Prior to 2005, self-defence in Victoria was governed solely by the common law. This situation was first 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).
  2. The provisions of the Crimes (Homicide) Act 2005 commenced operation on 23 November 2005, and applied to offences committed on or after that date (Crimes Act 1958 s603).
  3. The situation was again altered by the passage of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced a new Part IC into the Crimes Act 1958. Part IC abolishes common law self-defence (s322N) and sets out a single statutory self-defence provision for all offences (s322K). It replaces the previous Subdivision (1AA) of Division 1 of Part I of the Act (ss9AB – 9AJ) ‘Exceptions to homicide offences’.
  4. The provisions of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 commenced operation on 1 November 2014 and apply to all offences alleged to have been committed on or after that date (Crimes Act 1958 s623).
  5. This topic outlines the statutory defence of self-defence introduced by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. For information concerning the statutory provisions relevant to homicide offences alleged to have been committed on or after 23 November 2005 and before 1 November 2014, see Statutory Self-Defence (Pre-1/11/14) and Defensive Homicide.

    Abolition of Common Law Self-Defence

  6. Statutory self-defence has replaced the common law defence for all offences (Crimes Act 1958 s322N). Consequently, common law self-defence is not available when:
  7. However, common law self-defence will apply when:
  8. See Common Law Self-Defence for information concerning the common law defence.

    Repeal of Murder Self-Defence, Defensive Homicide and Manslaughter Self-Defence

  9. The statutory defences for murder self-defence and manslaughter self-defence, as well as the offence of defensive homicide, were repealed by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014.
  10.  However, these defences (and the alternative offence of defensive homicide) remain relevant when:
  11. See Statutory Self-Defence (Pre-1/11/14) and Defensive Homicide for more information.
  12. The new statutory self-defence provision, along with the abolition of common law self-defence and the repeal of the various homicide self-defence provisions, was implemented to simplify the law. The result is that for all offences alleged to have been committed on or after 1 November 2014 only one test for self-defence will apply, making it easier to explain self-defence to juries and assisting the jury in understanding and applying self-defence (Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, Explanatory Memorandum).

    When to Charge the Jury about Self-Defence

  13. 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 despite the absence of a request (Jury Directions Act 2015 ss14 - 16). See Directions under Jury Directions Act 2015.
  14. In criminal proceedings where self-defence in the context of family violence is in issue, Part 6 of the Jury Directions Act 2015 specifies certain directions that may be given early in the trial. See “Family Violence and Self-Defence: Jury Directions” below and Directions under Jury Directions Act 2015.
  15. 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).
  16. 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).
  17. 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).
  18. 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).
  19. 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 was 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).
  20. 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).
  21. 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 (or Part 6 of the Act, for self-defence in the context of family violence).

    Onus of Proof

  22. Once the question of self-defence is raised by the defence (that is, once the ‘evidential onus’ is satisfied), the legal onus is on the prosecution to prove beyond reasonable doubt that the accused did not act in self-defence (Crimes Act 1958 s322I).
  23. This is consistent with general common law principles, and the application of the previous statutory self-defence provisions for homicide offences (Babic v R (2010) 28 VR 297; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Viro v R (1978) 141 CLR 88; Dziduch v R (1990) 47 A Crim R 378).

    Elements of Statutory Self-Defence

  24. Sections 322K(1)-(2) of the Crimes Act 1958 state:

    (1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

    (2) A person carries out conduct in self-defence if—

    (a) the person believes that the conduct is necessary in self-defence; and

    (b) the conduct is a reasonable response in the circumstances as the person perceives them.

  25. It is not for the accused to establish that he or she held the relevant belief and that his or her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence (Crimes Act 1958 s322I).
  26. This means that where self-defence arises on the evidence, the accused will be not guilty unless the prosecution proves either:
  27. Incorporating the onus and standard of proof, this issue may be put to the jury as two questions:
    1. Is there a reasonable possibility that the accused believed that his/her conduct was necessary to defend him/herself?
    2. Is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as s/he perceived them? (R v Katarzynski [2002] NSWSC 613).
  28. The accused will be found not guilty unless the jury answer “no” to one of those two questions.
  29. Some cases have suggested that there is a separate requirement that the accused carried out his conduct for the purpose of self-defence (see Douglas v R [2005] NSWCCA 419). In most cases, it is not necessary to address this separate requirement. It is suggested that this third requirement should only be raised where it would be open to the jury to find that the accused believed the conduct was necessary in self-defence, but that his/her conduct was not committed as a result of this belief.
  30. Circumstances of “family violence” can affect both limbs of the test for self-defence. See “Family Violence” below for further information.

    Belief in Necessity

  31. The first limb of the test is based on the language used by Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 and can be treated as equivalent to the first limb of common law self-defence.
  32. The first limb is a subjective test. The test is whether the accused believed that the conduct was necessary in self-defence. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; Viro v R (1978) 141 CLR 88; R v Conlon (1993) 69 A Crim R 92 (SC NSW)).
  33. For this element to be satisfied, it does not matter if the accused’s belief was mistaken, as long as it was genuinely held (R v McKay [1957] VR 560; R v Katarzynski [2002] NSWSC 613; R v Trevenna [2004] NSWCCA 43).
  34. If the accused was intoxicated (by alcohol, drugs or any other substances) 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).
  35. The determination of whether the accused believed that his or her actions were necessary in self-defence 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).
  36.  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).
  37. 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.
  38. There is no rule requiring the accused to retreat from an actual or perceived 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 his or her conduct was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; R v Howe (1958) 100 CLR 448) as well as in determining whether the response to the threat was reasonable – see below ‘Reasonable Response’.
  39. If the accused acted under the pretence of defending himself or herself to attack another or retaliate for a past attack, then this limb of 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.
  40. A person is not entitled to rely on self-defence only if s/he acts while an attack is in progress or immediately threatened. The key issue is whether the accused’s perception of danger led him or her to believe that the use of defensive force was necessary (Osland v R (1998) 197 CLR 316).
  41. However, what is believed to be necessary in the circumstances may be affected by the lack of immediacy of the threat (R v Portelli (2004) 10 VR 259).
  42. 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 even when there is no 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).
  43. More generally, evidence of “family violence” can affect the determination of the accused’s belief in necessity in situations where:
  44. Unlike common law self-defence, s322K does not require the accused’s belief in necessity to be based on reasonable grounds.

    Statutory Self-Defence: Murder

  45. Section 322K(3) of the Crimes Act 1958 provides that in the case of murder, a person will only be carrying out conduct in self-defence if he or she believes that the conduct is necessary to defend himself or herself or another person from the infliction of death or really serious injury.
  46. 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 provision is similar to the statutory defence of murder self-defence introduced in 2005 by the Crimes (Homicide) Act 2005 (see Statutory Self-Defence (Pre-1/11/14) and Defensive Homicide).
  47. However, it 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 a person defends himself or herself against less serious harm, or acts to protect property or prevent crime, s/he may successfully raise self-defence if the jury finds s/he believed upon reasonable grounds that his or her 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).
  48. The Crimes Act 1958 s322H defines “really serious injury” as including serious sexual assault for the purposes of Part IC, but otherwise does not define the term.
  49. Although it has not yet been determined, it seems likely that “really serious injury” can include psychological injuries as well as physical injuries. It will be for the jury to decide whether the accused was threatened with an “injury”, as well as whether that threatened injury was “really serious”.

    Reasonable Response

  50. The prosecution must prove that the conduct was not a reasonable response in the circumstances as the accused perceived them to be (Crimes Act 1958 s322K(2)(b)).
  51. This part of the statutory test is based on laws in other Australian jurisdictions (eg, s418(2) of the Crimes Act 1900 (NSW) and s10.4(2) of the Commonwealth Criminal Code). These provisions have been interpreted by the courts as discussed below.
  52. The question of whether the conduct was a ‘reasonable response’ is an objective test. Although it is an objective test, the reasonableness of the response must be considered in light of the circumstances as subjectively perceived by the accused. The relevant determination is whether there is a reasonable possibility that the accused’s conduct was a reasonable response in the circumstances as he or she perceived them (Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; R v Katarzynski [2002] NSWSC 613; R v Trevenna [2004] NSWCCA 43; Oblach v R (2005) 65 NSWLR 75; Crawford v R [2008] NSWCCA 166).
  53. This second limb is where the test for self-defence differs from the position at common law, because the accused is not required to have reasonable grounds for his or her belief that it was necessary to act in self-defence. Rather, it is sufficient that the accused genuinely held the belief and that, objectively, his or her response to that belief is reasonable (R v Katarzynski [2002] NSWSC 613; Oblach v R (2005) 65 NSWLR 75).
  54. It is up to the jury to decide what to take into account in determining the reasonableness of the accused’s response in the circumstances. The jury is assessing the response of the accused (not of a reasonable person), so personal attributes including, for example, the accused’s age, gender and state of health as well as the surrounding physical circumstances will be relevant (R v Katarzynski [2002] NSWSC 613. See also R v Forbes [2005] NSWCCA 377; Ward v R [2006] NSWCCA 321).
  55. The reasonableness of the response should also be assessed in terms of the objective proportionality of the conduct to the perceived situation (Flanagan v R [2013] NSWCCA 320; see also the report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General entitled Model Criminal Code Ch 2: General principles of criminal responsibility: final report (Canberra, AGPS, 1993); Oblach v R (2005) 65 NSWLR 75).
  56. Again, while objective proportionality is a consideration under the second limb of the statutory self-defence test, it must be determined, in light of the threat that the accused genuinely believed to exist; that is, against the circumstances as the accused perceived them.
  57. More generally, evidence of “family violence” can affect the determination of whether the accused’s conduct was a reasonable response in the perceived circumstances where:

    Defence against Lawful Force

  58. Unlike at common law, the statutory defence of self-defence does 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 (Crimes Act 1958 s322L). This provision replicates the previous s9AF of the Crimes Act 1958 (see Statutory Self-Defence (Pre-1/11/14) and Defensive Homicide).

    Accused as the Initial Aggressor

  59. 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 was acting in self-defence (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645).
  60. 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; Ruben Anandan v R [2011] VSCA 413; see also R v Lawson and Forsythe [1986] VR 515 (Ormiston J)).

    Defence of Others and Protection of Property

  61. Other than for the offence of murder (see “Statutory Self-Defence: Murder” above), the statutory test does not set out specific categories of circumstances in which self-defence may be raised. Section 322K includes notes to the effect that a person may be acting in self-defence in the following circumstances:
  62. At common law, ‘self-defence’ was a general description that could include conduct to defend another person from harm, to prevent the unlawful deprivation of liberty or to protect property (R v Portelli (2004) 10 VR 259, R v McKay [1957] VR 560).
  63. At common law, the defence may also have been available in cases of apprehending a fleeing suspect or to prevent crime (R v McKay [1957] VR 560; R v Turner [1962] VR 30). It remains to be seen whether or how this aspect of self-defence might fit within the statutory test for self-defence in s 322K.

    Intoxication

  64. At common law, it was possible to take into account the accused’s state of intoxication in determining both aspects of the test for common law self-defence (R v Conlon (1993) 69 A Crim R 92 (NSWSC); R v Katarzynski [2002] NSWSC 613).
  65. However, s322T(2) of the Crimes Act 1958 states that:

    If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.

  66. This provision prevents intoxication being taken into account when determining whether the accused’s conduct was a reasonable response to the circumstances as he or she perceived them. However, it does not prevent intoxication being taken into account in determining whether the accused believed his or her actions were necessary in self-defence.
  67. Section 322T(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 ss322T(5)-(6) for the definition of “self-induced intoxication”.
  68. The effect of s322T is similar to that of the now repealed s9AJ of the Crimes Act 1958 (see Statutory Intoxication).

    Family Violence

  69. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 included in the Crimes Act 1958 provisions concerning “family violence”. These provisions substantially replicate those introduced into the Crimes Act 1958 by the Crimes (Homicide) Act 2005, but are applicable to all offences rather than limited to homicide offences.
  70. Section 322J(2) defines family violence “in relation to a person” as “violence against that person by a family member”.
  71. A person’s “family member” is defined broadly in s322J(2) and includes:
  72. “Violence” is also defined broadly in s322J(2) to mean:
  73. A single act may amount to “abuse” for the purpose of the definition of violence (s322J(3)). A number of acts that form part of a pattern of behaviour may also amount to “abuse” for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial (s322J(3)).
  74. Section 322M(1) provides that, for the purposes of an offence in circumstances where self-defence in the context of family violence is alleged, a person may believe that their conduct is necessary, and their conduct may be a reasonable response in the circumstances, even if:
  75. The provisions in s322M(1) replicate the now repealed s9AH(1), which clarified existing law in relation to self-defence. As noted above (see “Belief in Necessity”), a person is not required to wait until an attack is in progress or immediately threatened before using defensive force. S/he is entitled to take steps to forestall a threatened attack before it has begun (Osland v R (1998) 197 CLR 316). Similarly, the force used is not required to be precisely proportionate, as long as the accused believed it was necessary (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645) and the conduct was a reasonable response in the circumstances.
  76. Sections 322J and 322M(2) state that, in cases involving allegations of family violence, then the following evidence may be relevant in determining whether the accused believed his or her conduct was necessary, or whether the conduct was a reasonable response in the circumstances:

    (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.

  77. 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: Jury Directions

  78. 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.
  79. Part 3 of the Jury Directions Act 2015 does not apply to Part 6 of the Act.
  80. 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.
  81. For the purposes of Part 6, “family violence” has the same meaning as in s322J(2) of the Crimes Act 1958 (see “Family Violence” above).
  82. 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). The judge may give the statutory directions if the accused is unrepresented and the judge considers it in the interests of justice to do so (Jury Directions Act 2015 s58(3)).
  83. 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)).
  84. 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 [...].

  85. 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

  86. 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).
  87. The burden of proof should be made very clear to the jury. They should be told that the accused should only be convicted if the prosecution has proved that he or she did not act in self-defence (Crimes Act 1958 s322I).
  88. One way the judge can do this is by explaining to the jury that they must acquit the accused if the prosecution has not proved that there is:
    1. No reasonable possibility that the accused believed that his/her conduct was necessary to defend him/herself; or
    2. No reasonable possibility that what the accused did was a reasonable response to the circumstances as s/he perceived them (R v Katarzynski [2002] NSWSC 613).
  89. 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).
  90. 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 conduct, 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).
  91. 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).
  92. 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).

    Notes

[1]  This Report can be downloaded at http://www.lawreform.vic.gov.au/CA256902000FE154/Lookup/Homicide_Final_Report/$file/FinalReport.pdf.

Last updated: 29 June 2015

In This Section

8.1.1 - Preliminary Directions: Self-Defence in the Context of Family Violence (Jury Directions Act 2015 ss59, 60)

8.1.2 - Charge: Statutory Self-Defence

8.1.3 – Checklist: Statutory Self-Defence

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

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

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