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19 November 2013

The law of self defence is set out at Division 3 of part 11 of the Crimes Act 1900 and to a great extent codifies the case law on the issue. Section 418 of the Crimes Act 1900 states:

Self-defence-when available

1) A person is not criminally responsible for 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 and only if the person believes the conduct is 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, or
c) to protect property from unlawful taking, destruction, damage or interference, or
d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

The legislation clearly states that conduct is excused where that conduct is construed as self defence which is set out in sub-clauses a to d. From the provision it can be seen that there are two limbs to self defence being that the conduct was necessary and reasonable (meaning proportionate) in the circumstances. However what is important about the provision is whether the subjective or objective test applies.

Objective v Subjective Test

The best way to characterise the subjective test is to explain it in light of the objective test. The objective test is what a reasonable person would do in similar circumstances. However the subjective test is whether the defendant held a genuine or legitimate view that the conduct was warranted. So where the subjective test applies, it is not important to consider what a reasonable person would do rather, what the defendant felt and did and whether those feelings and actions in the defendant's mind were justified. The common law1 held that the in determining the defendant's response, the objective test was to be used however this is where the case law diverges from the statute.2

The Conduct is Necessary

The use of the words ..... if and only if the person believes the conduct is necessary indicates a subjective test is to be applied to determine the necessity of the conduct. This means that in deciding whether the conduct was necessary, the jury is to consider the defendant's mind and whether he in fact felt the conduct was necessary.

In coming to this conclusion the jury must consider all the circumstances and whether the defendant genuinely felt that the conduct was necessary. There may be instances where a larger person is being threaten by a smaller person or a person without a weapon is threatening a person with a weapon. In these circumstances a jury may hold the view that an ordinary person would not have been afraid. Such a view is not relevant. The correct test is whether the defendant genuinely felt the conduct was necessary. If the jury is undecided about the defendant's state of mind, he gets the  benefit of the doubt. Stated in legal terms, for the Prosecution to succeed on the first limb the jury must be convinced beyond reasonable doubt that the defendant did not hold fears for his safety.

Conduct is a reasonable response

The last sentence of the provision requires that the conduct be a reasonable response in the circumstances as the defendant perceives them. In Katarzynski, the Court held this provision to mean the objective test applied. This means the jury is to consider the response of the defendant in contrast with that of an ordinary person. 

In considering the defendant's actions the jury must decide if according to the ordinary person the conduct was reasonable. A reasonable response may include considerations such as whether the conduct was proportionate to the threat, exceeded the threat or continued after the threat had ceased, as far as the ordinary person is concerned. A defendant in fear may use force to quell force or a threat of force from an assailant and such force may be accepted by a jury to be justified. However once the threat of force ceases, it may no longer be a reasonable response to continue to use force on the assailant.

For example a security guard may be working in a crowd control capacity in a licensed venue. The security guard has asked a patron to leave because of intoxication or because the venue is about to close. The patron becomes aggressive and attempts to strike the guard which elicits a like response from the guard upon the patron. The patron falls to the ground striking his head and dies shortly after. In those circumstances where the guard has only struck the patron once, the response may be deemed to be reasonable.3

Contrast those circumstances with a situation where an intoxicated patron seeking entry to a licensed venue quickly becomes aggressive upon refusal and attempts to strike the guard. The guard strikes back knocking the intoxicated patron to the ground. Whilst on the ground the guard renders several kicks to the patron's head and is heard saying, "when I say you can't come in, it means you can't come in". In this instance, it will be up to the defendant guard to convince a jury that his conduct was necessary on an objective basis. Once again, for the Prosecution to succeed on the second limb the jury must be convinced beyond reasonable doubt that the defendant's response was not reasonable.

For assistance or advice on an assault matter or any matter involving self defence, contact our office for an appointment. 

Zecevic v DPP (Victoria) (1987) 162 CLR 645.
Katarzynski [2002] NSWSC 613 at 24.
R v Micevic - in the death of David Hookes.