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Week 9 Defences - Self-defence, Duress and Compulsion, Necessity and…

- - - - applies in circumstances where there is an initial assault by the victim. The initial assault must be unlawful and the initial assault is not provoked by the defendant.
        applies where the force used by the defendant is not intended and not likely to cause death or grievous bodily harm to the victim.
        
        A subjective element does not apply as the state of mind of the defendant is irrelevant: R v Gray (1998) 98 A Crim R 589 at 593; and R v Hagarty [2001] QCA 558 at [34] per Williams J.
        
        The degree of force/the response is to be reasonably necessary in the circumstances. This is an objective standard: R v Young (2004) 142 A Crim R 571; [2004] QCA 84 at [6]. Therefore, the defendant can not use unreasonable force; they can not go above and beyond what is reasonably necessary.
        Determining a necessary response is answered by what should be reasonable: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 662.
        
        If the defendant is mistaken as to whether the act of the defence was reasonably necessary the defendant could apply s 24 -mistake – an honest and reasonable belief.
    - - A subjective and an objective element are present: R v Gray (1998) 98 A Crim R 589 at 593 per McPherson JA.
        
        subjective element ascertains the reasonable belief of the defendant—it is necessary to show that there was no other way for the defendant to defend themselves against the initial assault. The defendant believed what they were doing was the only way they could save themselves from the assault: R v Muratovic [1967] Qd R 15 at 19 per Gibbs J.
        
        objective element is whether there was a reasonable apprehension of death or grievous bodily harm likely to be inflicted upon them by the victim and further whether the force used was necessary in the circumstances.
        The defendant needs to actually apprehend the attack and that the attack would have caused a reasonable person to apprehend at least grievous bodily harm based on an honest and reasonable belief.
  - - - 3) The use of force by the defendant was reasonably necessary.
      - 2) The defendant believes on reasonable grounds that to prevent the initial attack causing death or grievous bodily harm against the defendant, it was necessary to use the force;
      - 1) The initial attack against the defendant caused the defendant a reasonable apprehension of death or grievous bodily harm;
    - - 1) The defendant’s use of force which causes death or grievous bodily harm and this first begun the assault with intent to kill or to do grievous bodily harm;
      - 2) The defendant’s use of force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm before the necessity of so preserving the defendant arose;
      - 3) Unless before such necessity arose, the defendant using such force declined further conflict, and quitted it or retreated from it as far as was practicable.
- - - - The defendant must reasonably believe that the doing of the act is the only way for them to avoid the threat being carried out.
      - ‘The reasonableness of the belief is considered in light of other alternatives’; those other alternatives ‘cannot afford protection from the threat’: R v Taiapa (2009) 240 CLR 95 at 102 per Keane JA.
      - The alternatives must have been reasonable: R v Smith [2005] 2 Qd R 69.
  - - - The evidential burden is on the defendant to prove they acted under compulsion, and when the defendant satisfies this burden the prosecution must prove beyond reasonable doubt that the defendant did not act under compulsion: Taiapa v R (2009) 240 CLR 95 at 98.
- - - - The elements of provocation for an assault-based offence include:
        
        1) A wrongful act or insult;
        
        2) A subjective element where the defendant was deprived of the power
        of self-control and was induced to assault the person by whom the act of insult was done or offered;
        
        3) An objective element where an ordinary person provoked could
        or might have lost their self-control and committed an assault against the victim.
  - - - 1) A sudden provocation by the victim which caused the defendant to kill the victim;
      - 2) Subjective element where the defendant as a result of the conduct of a provocative
        nature loses their self-control, the loss of self-control is not premeditated and was sudden;
      - 3) Objective element where an ordinary person provoked with the same gravity could or
        might have lost their self-control and formed an intention to kill or inflict grievous bodily harm.