Defence: Self-defence

Question 1

What is self-defence?

Answer 1

where a person acts to:
* protect themselves;
* protect someone else;
* protect property;
* prevent a crime; or
* assist in the arrest of an offender.

! acquittal if successful

Question 2

What is the common law version of this defence?

Answer 2

CJIA 2008, s 76(2) envisaged two possible reasons for acting:

• In the protection of life and limb of
  yourself or another: see e.g. R v
  Gladstone Williams.
• In the protection of property: R v
  Hussey .

Question 3

What is the test for this defence?

Answer 3

• TRIGGER:
  the defendant honestly believed that the use of force was necessary; and
• RESPONSE:
  the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

Question 4

Burden of proof?

Answer 4

It is for the prosecution to disprove that the defendant acted in self defence.

It is an all or nothing general defence, so D will either be acquitted by self-defence or the defence will fail.

Question 5

How do we determine if the defendant honestly believed that the use of force was necessary? (TRIGGER)

Answer 5

Subjective test whether the belief is reasonable or not.

BUT! if a mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake.

It can be used by an antagonist and it can be used against an innocent third party

Question 6

How do we determine is the level of force used by the defendant in response was objectively reasonable ? (RESPONSE)

Answer 6

In deciding this THE JURY must take into account:

Response was objectively reasonable in the circumstances as the defendant believed them to be.

• The defendant can be mistaken and the mistake does not ned to be a reasonable one.

CJIA 2008 : what is reasonable will depend on the circumstances in which the force is used and differentiates between:

• non-‘householder’ cases;
• ‘householder’ cases

Question 7

What is a non ‘householder’ case?

Answer 7

Jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be.

D must be judged in accordance with his honest belief, even though that belief may have been mistaken.

S74(7) of the CJIA replicates this common law.

Question 8

What is a householder case?

Answer 8

D:
* Acts to protect themselves or another.
* Uses force while in or partly in a
building, or part of a building, that is a dwelling
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering, the building or part as a trespasser.

trigger is the same but response is more lenient.

Question 9

How do we determine liability in householder cases?

Answer 9

Jury must be asked two questions:

1. Was the force was grossly disproportionate in the circumstances as D believed them to be?

If it was, there can be no defence.

2. If not, was the level of force reasonable?

e.g. the shock of coming upon an intruder, the time of day, the vulnerability of the occupants, particularly children etc.