Crim Week 6 Lecture 2

Section 418 – Self defence – when available

 “reasonable response...as he or she perceives them”. Means the circumstances of the accused
at that time is important. Things such as age, gender, etc
 s418 (2) – a subjective believe in necessity and the proportionality of response

Katarzynski
 facts: people were arguing in a hotel in liverpool nsw, shots were fired and the accused
killed victim claiming self defence. Main focus of the case was on intoxication because a
huge amount of alcohol was consumed by both parties. But the case also took the
opportunity to clarify how section 418 works.
 been accepted in NSW as the correct statement on the law on how s418(2) works and how
self defence interacts with intoxication in the NSW Crimes Act
 How s418(2) works?
◦ Explained in the paragraph 23 in katarzynski – as shown on the slides

What happens when you genuinely believe that you need to kill in order to protect yourself but a
jury decides that the type of reaction you engaged in was disproportionate to the threat of violence?
 Section 421 deals with situation where a jury believes that subjectively this person believed
that what they need was necessary to protect themselves but even with taking into account
the circumstances, it was still an act that was disproportionate to the threat of violence
 this section allows for a partial defence.
 Essentially it is another form of voluntary manslaughter (like provocation)

Notwithstanding that a jury will be engaged in looking up what the accused subjectively believe,
they will have to infer it from the evidence of the circumstances. Need to try to understand what the
accused were thinking and feeling at that time.
 So, the more extreme the violence, the less likely the jury will believe that it was a
reasonable reaction/ proportionate response

Katarzynski (cont)
 paragraph 24
 Not that the accused's belief about necessity was based on reasonable grounds instead in
s418 it is about the 'subjective belief'
How does self defence work in paticular situations?
 It is the factual circumstances of the examples from common law that is helpful to us in
understanding how s418 can be applied. It is NOT the law in NSW.
1. When an attack has not occurred? (a pre-emptive reaction)
 essential question : to what extent could this be argued to be opportunity killing and not
self defence
 Conlan case
 Facts: conlan was an expert marijuana grower, he had a huge area of an island in victoria
here he grew marijuana. One night he heard voices outside and found 2 people who were
known to him stealing his pot plants. In particular he had seen that one plant were
uprooted and they were digging for more. He says that they then ran at him as he ran
back to the house. In running back and trying to defend himself he hits one of them on
the face. The other guy then engaged in a fight. The accused managed to escape and
obtained his rifle from his room. He claims that at this stage he was really disorientated
but forensic evidence shows that the first shells of the shots fired were fired outside of
the house. Shots were being fired and killed the two guys, N and H. N was shot in
abdomen, and H was shot twice in back of the legs and his head. The accused then
shoots H in the head at close range as he was lying on the ground. Then tries to shoot N
but he has ran out of bullets. He then axes N and knifed N in the throat. He then buries
them in a shallow grave and ran away
 arguable there was a pre-emptive strike that started out as self defence but resulted in
overreaction.
 Intoxication was also relevant here because he had been smoking whisky and smoking
joints. He also had a history of psychotic episodes.
 Judges accepting evidence that he felt genuinely threatened and was acting in self
defence even if in hind sight when he was shooting them they were running away
 on a section 418 analysis, all of that facts would be very important in assessing the
subjective belief of necessity
 problem here is the reasonableness of his response
 can still argue self defence under s 418(2) even is it is a pre-emptive strike so long as
there was a genuine belief
2. When you provoke the attack against you? (the accused is the initial aggressor)
 Zecevic at B&MccS p342
 facts : long standing neighbourly dispute about something trivial (leaving security gates
open and not using a desginated garage). Accused and victim started an argument. victim
said “i'm going to cut your head off”, accused thought it was true and then got a rifle
and shot the victim
 Where an accused is an original aggressor and induces or provokes the argument. He
instigated the argument.
 Crown were arguing that it was a deliberate move on part of accsued to create a situation
of danger to kill his neighbour and then later claim self defence
 judges accept that there is such a possibility for someone to engage in this kind of
behaviour to manipulate the self defence argument
  courts hold that its a factual inquiry and if the original aggressive action is over and is
now entering a new phase of violence, the fact that you have provoked the situation is
not vital but it would require solid engagement with the facts and the state of mind of the
accused
 there is no requirement to retreat under s 418 but of course factual circumstances is
relevant to the jury for assessment
 recognition that creating a violent situation might be a way of pursuing ones orginial
plan of murder
Section 422 – lawful and unlawful arrest
◦ is it relevant whether the action you are responding to is lawful or unlawful?
▪ Under common law and statute, YES.
▪ Lawful arrest is not excluded
▪ menas self defence can still be relevant if a violent reaction to a lawful arrest
Issue of Imminence
 not a threshold test, but important factually.
 May need objective evidence of the imminent threat to show that the D honestly held the
subjective necessity belief
 Burgess; Saunders [2005]
◦ charged with maliciously damaging property (painted the slogan of 'NO WAR' on the
sails of the sydney opera house)
◦ they claim self defence to that charge
◦ Context was that it was a response to the government's response that they will send
troops to iraq.
◦ How? Argument that they are doing it in Protecting the soldiers who will be sent to the
war, protect the opera house, protect iraq from invasion
◦ what did the courts say? Courts held that there must be a close nexis between the act and
the threat the accused is defending against.
◦ Cannot ask the jury to believe that you acted in self defence when the perceived threat is
a vague, future event. There is a need for a temporal relationship.
◦ One of the grounds of appeal was that the trial judge did not leave the issue for the jury
to consider
◦ on appeal, court enthusiastically agreed with the trial judge that it was not an issue to be
left to the jury because clearly there is a need for a temporal nexus.
 Nexus between offence and threat
 R v PRFN
◦ re a minor (14 years old) who killed the victim.
◦ He invited the victim to his house and shot him. There is evidence that he raped D 3
years ago.
◦ 1st issue – pre-conceived plan to kill
◦ 2nd – the issue of imminenve
 ◦ on appeal the trial judge erred in saying that imminence was not relevant
◦ NSWCA says that there must be some kind of temporal connection of the imminence of
the threat.
◦ If imminence is required, then unless there was some kind of sense that he knew where
you live, etc it would be difficult for the jury to belief that the belief was genuinely

Excessive Self Defence

 s421 of the NSW act is used when there is a genuine belief that your act was necessary for
protection but is not objectively reasonable response
 interesting to note how often people plead guilty to manslaughter under s421. A form of plea
bargain situation. Also interesting to note that it usually happens with women who kill
abusive spouses.
 R v Vuni
◦ deliberately shooting an unarmed man without warning
◦ the court see it as a disproportionate response
◦ defendants were at home with members of his family and the deceased came to the door
demanding for his 'stuff'. They got into an argument about it. The agrument became
heated that the de facto wife took everyone out of the house. Victim and accused left in
house together, and a shot was fired. Defendant said he shot because deceased was
pulling his hand out of his pockets, believing that he had a gun he shot first. But there
was an eye-witness that said that the victim did not have any hands in his pocket.
◦ Was it a reasonable response as the circumstances is perceived?
◦ When applying the test, court held that it was not a reasonable response even if you
subjectively believed that the accused had a gun.
 R v Muddle
◦ knife attack of an unarmed man
◦ victim's 23rd birthday, out for a celebration. Celebration moved to muddle's household.
Muddle and the victim started an argument because victim made a remark about the
defedant's dogs. The defendant then thought that the victim had behaved wrongly
towards the dogs and leapt up to hit the victim. There was a fight and then the defendant
retreats and told the victim to leave. Victim was furious and then continue to make
further threats. Everyone advised the victim to go home. The victim was still not in
control. He then approaches the front door, goes inside and ends up being stabbed by the
defendant.
◦ Question : was the use of the knife to stab someone in the back a reasonable response in
the circumstances as perceived by Muddle?
◦ Conclusion was that it was not a reasonable response because in particular the courts
look to the circumstantial evidence.
◦ There is no question regarding the genuine belief, but his conduct was not a reasonable
response because the deceased was unarmed and to use a knife against him was not
proportionate.
◦ Prosecution successfully disprove the reasonableness of the situation beyond a
reasonable doubt
  if it is held that if held as not a reasonable situation, prosecution do not need to prove
manslaughter.

Self Defence and Intoxication

 Katarzynski – there was a question about whether s428F need to be applied?
 The reasonableness response part of the s418 test, there is no reasonable person test
 so how is the intoxication provisions apply to PT11A – self defence.
 Katarzynski said that the jury determines if the response of the accused was necessary and
any reasonable in the circumstances as the accused perceives them. So the jury must ignore
self-induced intoxication. This has become good law.