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Self Defence Justification - Coggle Diagram
Self Defence Justification
LIMB #1: Necessity of the defendants action/conduct (subjective)
1 - reasonable possibility existed that the defendant believed that his/her conduct was necessary in order to defend him/herself
subjective test: all personal characteristics of the accused at the time of carrying out the conduct including intoxication to be taken into consideration: Howie J in
R v Katarzynski
(2002) NSWSC 613
does not matter if the accused's belief is unreasonable
rather the important relevant consideration is whether or not the accused
honestly believed his/her conduct was necessary in self defence
; *R v Katarzynski [2002] NSW
the accused's level of intoxication is relevant to an assessment of his/her belief that the conduct was necessary:
R v Katarynski
[2002]
Crown will negative if it proves BRD that the accused did not genuinely believe that it was necessary to act as he/she did in his/her own self defence.
LIMB #2: Reasonable possibility that the conduct is a reasonable response in the circumstances as he/she perceives them
objective assessment of the proportionality of the accused's response to the situation as the accused subjectively believed [perceived] he or she faced:
R v Katarynski
[2002]
Assessment -
the personal circumstances of the accused including his/her age, strength, health - may be taken into account when judging the reasonableness of his/her response
R v Katarzynski*
alternative action? - relevant to consider if another course of action could have been taken
YES
- however important to approach the matter in a 'broad and practical manner' - to appreciate an accused 'cannot always weigh precisely the exact action' he or she would take in response to the circumstances he or she perceives:
R v Hutchinsons & Wilkinson [2018]
CROWN will negative self-defence if it proves that what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
Outcomes:
was it reasonable -
YES
Full Acquittal - under section 418 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.
was it reasonable -
NO
Partial Acquittal (in the case or a murder prosecution) - guilty of manslaughter as opposed to a conviction of murder
421 Self-defence—excessive force that inflicts death (
only applies in the case or murder
)
421(1)(b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary— (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
Judicial Outcome: (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
require a nexus between the threats the defendant faced, and the offence (e.g., assault) - that he/she would-be liable for if the claim of self-defence is not accepted.
Hodgson JA in
Colosimo v DPP
:
by reason of the onus of proof provided by s 419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self defence.
WANTED TO FIGHT
Colosimo v DPP
:
A finding that an accused 'wanted to fight' does not of itself exclude self defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty
relevant to consider the extent to which the accused declined further conflict and quit the use of fore or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it
.