CRIM DEFENCES - SELF DEFENCE

What is the first thing to establish when looking at self defence

The defendant used force

Jenkins v Police

The offence the defendant is charged with doesn’t have to include force in the wording as - they just needed to have used force

R v Terewi

For force

Verbal threats to use physical power = force

• must be a threat to use physical power

For whether the defendant was acting in self defense

Can defendant against a verbal threat

R v Hutchinson

Breaking and entering and causing property damage is not force

Leason v Attorney General

Property damage can sometimes be force

R v Busby

For whether there is force in possession offences

Defendant argued he had knife in self defence not with the intention to use it to commit an offence

Self defense can’t be a defense to possession offences because possession doesn’t involve the use of force.

• Merely possessing a weapon for self defence does not constitute the use of “force”

Hocking v Police

Driving is not force

Bayer v Police

obstruction passive actions without indication that physical force will be used is not force

Deans v Police

Accidental use of force is not force but unintended consequences from the deliberate use of force can be defended by self defense

R v Bridger

Elements of self defense - s 48

1. What were the circumstances as the accused genuinely believed them to be

2. In those circumstances was the accused acting in defence of themself or another

3. Was the force used reasonable in the circumstances that the accused believed them to be

McKay v Police

genuinely held mistaken belief that the defendant is under threat is sufficient

Simpson v R

Altered perception due to voluntary intoxication can be taken into account when assessing the circumstances as the accused believed them to be

• but not in assessing whether the force used was reasonable

R v T

Psychological disorders can be taken into account when assessing the circumstances as the defendant believed them to be

R v Wang

For assessing the circumstances as the defendant believed them to be

Court did not consider the defendants perception of limited alternatives as part of the circumstances as she believed them to be

For reasonableness of use of force

Reasonable force depends on

• immediate threat - didn’t exist because the victim was asleep and intoxicated

• availability of alternative options which don’t involve the use of force - defendant had reasonable alternatives

preemptive strikes are sometimes reasonable but killing is only justified in the face of a threat of immediate life threatening violence

Court didn’t take into account victim’s history of intimate partner violence against the defendant

McNaughton v R

for circumstances

The jury should consider if the prosecution can prove the defendant knew they had other options available and whether those options were reasonably available to them in the time they had to react

R v Howard

Self defence is not available where the defendant was acting out of relatiation or negative feelings towards the victim

But available where defendant has fear of assault + anger

R v Kneale

Can defendant against psychiatric harm but the harm must be more than raised emotions - there must be a risk of psychiatric injury (clinical condition)

Afamasaga v R

Test for reasonableness of force used in the circumstances

Imminence

Necessity

• for use of lethal/deadly force, the actions must be absolutely necessary

• use of force is not reasonable where there is another lawful/less harmful option

Force must be proportionate

Alternative courses of actions

Palmer

A defendant isn’t expected to perfectly weight their use of force against the threat - courts take the level of pressure/stress the defendant was under into account

Zecevic v DPP

The more extreme the action taken is relative to the threat, the more likely courts are to conclude the act wasn’t necessary

The worse the threat the accused thought they were facing, the less likely courts are to examine proportionality to a fine degree

Mafi v R

There is no requirement for a reasonable balance/no need to compare between the threat and the force used against it

R v Savage

For circumstances as the accused believed them to be

Must be more than mere suspicion/speculation about a threat

For reasonable use of force

Depending on circumstances, retreat may be considered the reasonable response over using force - like where there is no present danger

R v Lavallee (Canada)

For reasonable use of force in cases involving intimate partner violence, an imminent threat must be understood in the circumstances of abuse.

• a batter person can see an imminent threat where an outsider may not due to the predictability of violence in circumstances of domestic abuse