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Lecture

11. [s271&272] Self-Defence

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Self Defence Onus—excuse—the accused to raise some evidence | R to negative BRD [→ compulsion—acts necessary to resist violence: s31(1)(c)] Simple test at CL—“whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did”: Zecevic v DPP (Vic) (1987) (neighbour dispute—shot neighbour) • Removes midway point of manslaughter if guilty of excessive self-defence Provoked v Unprovoked Assaults Question is whether the victim could have relied on provocation to excuse their assault on the accused: Muratovic • M verbally assaulted A&B • A&B violently assaulted by M | 3P told him they would kill him | complained to police but unhelpful | days later again pulled a knife on him & said they’d kill him • M produced knife | stabbed A who fled | stabbed B several times | pursued A & stabbed again  A&B’s assaults on M disproportionate to verbal assault to M—could not have relied on provocation → unprovoked assault → s271 should have been left open to jury ← Provocation as defined in s268: Johnston; Prow • Provocative act o Words—  Assault—provocation includes ‘insult’: s268(1)  CL—only sufficient in extreme circumstances: Moffa o Sexual advances: Green v R (homosexual) o Not self-induced provocation: s268(4); Voukelatos • Ordinary person test: Stingel • Proportionality: Rose; Verhoeven v Ninyette per Wheeler J SELF -DEFENCE AGAINST P ROVOKED A SSAULTS :S272 (1) When • a person o has unlawfully assaulted another or o has provoked an assault from another, and • that other assaults the person with such violence as o to cause reasonable apprehension of death or grievous bodily harm, and o to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self- defence, the person is not criminally responsible for using any such force • as is reasonably necessary for such preservation, • although such force may cause death or grievous bodily harm. Effect—Acquittal but civil action still possible No defence for minor provoked assault Andrew Trotter LWB239 Criminal Responsibility Threshold requirement—Assault: s272 Only in response to unlawful assault ↔ not in anticipation of one • 2 limbs in s245(1)— st  Actual application of force → 1 limb  Threatened application of force with apparent ability to carry out threat → 2 limb • BUT may be continuing assault that is present even where defendant temporarily ceases: o Asleep: Secretary (BWS—continuing assault—threat made again immediately before went to sleep—killed in his sleep  threat did not stop merely because he went to sleep); Runjanjic & Kontinnen (1991) (husband asleep but long history of abuse) o Walking away: Lavalee (Canada) (BWS—continuing assault—husband walking away after assaulting her  self defence as cycle predictable) o Back turned: Hickey • Still more rigid than common law position—where only need to prove need to protect oneself: Zecevic v DPP (Vic) 1. Accused assaults or provokes an assault from the victim When a person has unlawfully assaulted another or has provoked an assault from another, and … 2. Violent assault causing a reasonable apprehension of death or GBH … that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and … • Objective test—but permissible to look at subjective factors— o history of conflict: Muratovic (had previously been told they would kill him—“next time we catch you, you never eat bread any more”  relevant in determining fear of death) o Belief about violent nature of victim: Masters (heroin dealer that beat others  admissible to determine apprehension and basis for it → reasonable) • Cannot be too remote— o 8 months too remote: R v Keith (death threats 3 years and also only 8 months ago  too remote) o 6 days not too remote—so long as the threats do not constitute the assault relied on: Muratovic • Apprehension may be based in honest & reasonable mistake of fact: s24; Marwey; R v Lawrie (eg —thought being attacked with gun but actually just starting pistol)  Apprehension must be held on reasonable grounds = honest & reasonable mistake of fact → on one interpretation not even necessary to consider s24 o BUT mistake of fact does not apply to mistake about how much force is necessary —question of law: Marwey overruling Muratovic o Jury to pretend that state of things was as accused thought to determine whether force reasonable / necessary: Lawrie 3. Accused believes on reasonable grounds that they cannot otherwise preserve themselves … that other assaults the person with such violence as … to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, … • Subjective test—belief of accused: Gray per McPherson J o Prior history – threats, assaults, violence relevant: Muratovic o otherwise means “otherwise than by the force in fact used” (Muratovic) • Objective test—reasonable grounds o Must not judge with the benefit of hindsight: Gibbs J in Muratovic o Belief does not have to be reasonable—just on reasonable grounds: R v Julian Andrew Trotter LWB239 Criminal Responsibility o No requirement to retreat as under s272(2)—but may not be reasonable grounds if opportunity to retreat was reasonably open: Sreckovic; Johnson; Randle v R (1995) • Mistake of fact does not apply to mistake about how much force is necessary—question of law: Marwey overruling Muratovic (Only to mistaken apprehension (above)) 4. Accused uses such force to the victim as is reasonably necessary for preservation the person is not criminally responsible for using any such force as is reasonably necessary for such preservation ← Objective test (reasonably necessary for preservation) • Proportionality of force used • May cause death or GBH 5. Qualifications in s 272(2) Began assault with intent to kill or do GBH This protection does not extend to a case in which the person using force which causes death or grievous bodily harm first begun the assault with intent to kill or to do grievous bodily harm to some person; … Used force causing death or GBH before necessity arose … nor to a case in which the person using force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm to some person before the necessity of so preserving himself or herself arose; … Failure to Retreat … nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable. Confusion as to construction—  Clause an independent requirement— (Johnson) o Accused disqualified under one of first two clauses cannot requalify o Failure to retreat will exclude defence even if neither of first two clauses apply  Clause a requirement of both previous clauses— o Accused may be initially disqualified under first two clauses & then requalify if retreated as far as practicable: Randle per Malcolm CJ; o No requirement to retreat unless one of first two clauses apply: Muratovic (no requirement to retreat unless setting out to kill or using murderous violence before necessary to do so); Wilmot [2006] per Jerrard JA As far as practicable— • Unclear as to whether applies only to retreat or also to declining further conflict: Randle Effect of application … the person is not criminally responsible for using any such force not criminally responsible for using force: s272(1) • civil action still possible—act is not lawful. • can excuse assault, assault occasioning GBH, GBH, wounding, manslaughter; murder. Andrew Trotter LWB239 Criminal Responsibility SELF-D EFENCE AGAINST U NPROVOKED A SSAULTS : S272 Effect—Acquittal & actions lawful—civil action barred Minor unprovoked assaults: s271(1) When • a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use • such force to the assailant as is reasonably necessary to make effectual defence against the assault, • if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm. Major unprovoked assaults: s271(2) If the nature of the • assault is such as to cause reasonable apprehension of death or grievous bodily harm, and • the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use • any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm. Threshold requirement—Unlawful Assault: s271(1) When a person is unlawfully assaulted, and has not provoked the assault … Only in response to unlawful assault ↔ not revenge for past assault | in anticipation of future assault: Osland v R (1998) • 2 limbs of assault: s245(1)  Actual application of force → 1 limb nd  Threatened application of force with apparent ability to carry out threat → 2 limb • Still more rigid than common law position—where only need to prove need to protect oneself: Zecevic v DPP (Vic) • Assault must be unlawful—not unlawful if provoked: Gray v Smith • BWS— o May be a continuing assault that is present even where defendant temporarily ceases  Asleep: Secretary (BWS—continuing assault—threat made again immediately before went to sleep—killed in his sleep  threat did not stop merely because he went to sleep); Runjanjic & Kontinnen (1991) (husband asleep but long history of abuse)  Walking away: Lavalee (Canada) (BWS—continuing assault—husband walking away after assaulting her  self defence as cycle predictable)  Back turned: Hickey
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