8.1.2 - Charge: Statutory 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 any offence on or after 1 November 2014.

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 either a homicide offence committed before 23 November 2005 or any other offence committed before 1 November 2014, see the following:

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

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 or terminate the unlawful deprivation of liberty.]

Introduction

In this case the defence has alleged that NOA was acting in self-defence when s/he [insert relevant act]. I therefore need to give you some directions about "self-defence".

The law recognises the right of a person to defend himself or herself from attacks or threatened attacks. The law says that a person may act in self-defence if the person:

As long as it is a reasonable response in the circumstances as the person perceives them, a person 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, even if you are satisfied that the prosecution has proven all of the other elements of an offence beyond reasonable doubt, NOA will not be guilty of that offence if s/he acted in self-defence.

The prosecution must therefore prove, beyond reasonable doubt, that NAO was not acting in self-defence. 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 has proved 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.

In deciding whether NOA believed that his/her conduct was necessary to defend him/herself, you can consider whether it would have been reasonable for him/her to hold that belief in all the circumstances. This is not because the law requires that the belief be reasonable. It does not. The reasonableness of the accused’s alleged belief is only a guide to help you decide whether or not the accused really believed that it was necessary to do what s/he did to defend him/herself.

[If it is alleged that the accused committed murder and the harm the accused allegedly believed s/he faced did not amount to death or really serious injury, add the following shaded section.]

According to the law, a person may only commit what would otherwise be considered murder if s/he believes s/he is responding to a threat of death or really serious injury. If s/he intentionally kills someone in response to what s/he believes is a less serious threat, s/he will be guilty of murder. You must therefore determine whether NOA believed s/he was responding to a threat of death or really serious injury when s/he killed NOV. If the prosecution can prove, beyond reasonable doubt, that s/he did not believe this, then NOA will not be acting in self-defence.

Not a Reasonable Response in the Circumstances

The second way in which the prosecution can prove that NOA was not acting in self-defence is by proving, beyond reasonable doubt, that his/her conduct was not a reasonable response in the circumstances as NOA perceived them to be at the time s/he [insert relevant act].

Again, it does not matter if NOA was mistaken in his/her perception of the circumstances. The prosecution will only succeed if it satisfies you beyond reasonable doubt that NOA’s conduct was not a reasonable response in the circumstances, as s/he perceived them to be at the time of the conduct in question.

If the prosecution fails to prove to you either that NOA did not believe it was necessary to act in the way s/he did to defend him/herself, or that that conduct was not a reasonable response, in the circumstances as perceived by NOA, 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 a 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. However, if there is evidence of self-defence in the context of family violence, see the shaded section on family violence instead.]

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 NOA’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 consider this factor in deciding whether the accused’s response was reasonable in the circumstances as s/he perceived them.

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.]

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 response was reasonable in the circumstances as s/he perceived them.

[If it is alleged that the accused engaged in a pre-emptive strike, 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.]

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 a person is not required to wait until an attack is actually in progress before defending himself or herself. S/he is entitled to use whatever force s/he believes is necessary to defend himself or herself against threatened harm, as long as the use of that force was a reasonable response in the circumstances as s/he perceived them.

However, the lack of immediacy of a threat is one of the factors you can take into account in determining what the accused believed to be necessary in the circumstances. You can also consider this factor in deciding whether the accused’s response was reasonable in the circumstances as s/he perceived them.

[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 whether those actions were a reasonable response, you should take into account matters such as [insert 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.]

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 may take this into account when assessing whether s/he believed it was necessary to act in the way s/he did and in assessing the circumstances as NOA perceived them. This is because these issues include an assessment of NOA’s state of mind, including his/her state of intoxication.

However, if you find that s/he was intoxicated, you must not take this into account when assessing whether his/her conduct was a reasonable response in the circumstances as NOA perceived them. The law requires you to consider what the reasonable response of a person who was not intoxicated would have been, in the circumstances as perceived by the accused.[1]

[If there is evidence of family violence involving the accused and the victim, add the following shaded section. If the existence or extent of family violence is in issue, this direction will need to be modified to account for the prosecution’s onus of disproving the reasonable possibility that the accused had been subject to family violence] [2]

In this case you have heard evidence of what is called “family violence” between NOA and NOV. [Insert evidence and/or arguments].

The law says that where the accused has [insert relevant act] in circumstances where family violence is alleged, the accused may believe that his/her conduct was necessary to defend him/herself, and the conduct may be a reasonable response in the circumstances, even if:

[If relevant] s/he is responding to a harm that is not immediate;

[If relevant] his/her response involves the use of force in excess of the force involved in the harm or threatened harm.

This does not mean 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 still be guilty of [the offence charged] if s/he did not believe that it was necessary to act in the way s/he did, or if the conduct was not a reasonable response in the circumstances as s/he perceived them to be.

However, 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 s322J(1), the judge should identify the evidence and relate it to the facts in issue:

(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.]

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

Did not believe that it was necessary to do what s/he did to defend him/herself; or

• The conduct was not a reasonable response in the circumstances as perceived by NOA.

Notes

[1]  This direction will need to be modified if the intoxication is not self-induced. Model charges are available from Charge: Statutory Intoxication (Self-induced) or Charge: Statutory Intoxication (self-induced contested), as relevant.

[2] Note: for criminal proceedings where self-defence in the context of family violence is in issue, s 59 of the Jury Directions Act 2015 applies and 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: 1 November 2014

See Also

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

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

8.1.3 – Checklist: Statutory Self-Defence