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In the criminal law of Australia, self-defence is a legal defence to a charge of causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive.
In Viro v The Queen, [1] Justice Mason formulated six propositions on the law of self-defence in murder trials. Thus, a full acquittal is achieved if the jury finds that an accused reasonably believed they were threatened with death or serious bodily harm and, if so, that the force used was reasonably proportionate to the perceived danger. In Zecevic v Director of Public Prosecutions, [2] the victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned, and shot and killed the tenant. The majority of the High Court said at 661: [3] [4]
The New South Wales Court of Criminal Appeal in R v Burgess; R v Saunders held that 'the concept of self-defence only arises where the actions of the accused by way of self-defence are directly taken against the person threatening the accused or another’s being or property.' [5] [6] [7]
In R v Conlon the accused used a shotgun to repel two trespassers whom he believed to be stealing his cannabis plants. His belief was affected by drunkenness and a schizoid personality disorder which were relevant to determine whether the Crown had proved that he had not acted in self defence: specifically whether he believed that it was necessary to do what he did and whether that was a reasonable belief. This question seems advantageous to the defence because it tests whether the belief is reasonable to the accused (a subjective test), not reasonable to the reasonable person (objective test). [8]
In NSW, ss 418-423 of the Crimes Act 1900 now govern the law relating to self-defence and excessive self-defence (see below). [9]
Under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.
In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family. [10] The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC , and lawyer Marie Shaw, who is now a District Court Judge. [11]
The rationale of the defence recognises that the degree of culpability normally associated with murder may be missing. In the High Court case of Viro v The Queen, [1] Aickin J said:
The defence was first recognised in the common law in R v McKay, [12] where a farmer shot and fatally wounded a chicken thief, and confirmed in R v Howe where Mayo J held at 121-122:
This mitigatory defence was abolished in Zecevic v Director of Public Prosecutions [2] which expressed the view that provocation should be the alternative considered. The defence was re-introduced in statutory form in South Australia in 1991, revised in 1997. The Criminal Law Consolidation Act 1935 (SA) s15 now reads:
s15A extends the partial defence to circumstances where the accused had applied excessive force in killing the deceased but had genuinely believed the force to be necessary and reasonable:
In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act 1900 (NSW). Section 421 states: [14]
otherwise criminally responsible for manslaughter.
Unlike South Australian law, s420 of the NSW Crimes Act explicitly states that self-defence is not available as a defence to murder if death is inflicted to prevent criminal trespass. [15]
In November 2005, pursuant to recommendations from the Law Reform Commission for Victoria, the Victorian legislature introduced new laws regarding self defence. Among them, a new offence of defensive homicide was created: where the accused's belief in the need for the force applied in self-defence was unreasonable, s/he may be convicted of an offence less serious than murder. However, defensive homicide was abolished in November 2014.
The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property.
In law, provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable individual to lose self control. This makes them less morally culpable than if the act was premeditated (pre-planned) and done out of pure malice. It "affects the quality of the actor's state of mind as an indicator of moral blameworthiness."
A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force to defend oneself against an intruder, free from legal prosecution for the consequences of the force used. The term is most commonly used in the United States, though many other countries invoke comparable principles in their laws.
A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the mental element. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.
A stand-your-ground law, sometimes called a "line in the sand" or "no duty to retreat" law, provides that people may use deadly force when they reasonably believe it to be necessary to defend against certain violent crimes. Under such a law, people have no duty to retreat before using deadly force in self-defense, so long as they are in a place where they are lawfully present. The exact details vary by jurisdiction.
Voluntary manslaughter is the killing of a human being in which the offender acted during the heat of passion, under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot reasonably control their emotions. Voluntary manslaughter is one of two main types of manslaughter, the other being involuntary manslaughter.
The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice, reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to cause either death or serious injury unlawfully. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.
In English law, the defence of necessity recognizes that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which the defence of necessity has succeeded, and in general terms there are very few situations where such a defence could even be applicable. The defining feature of such a defence is that the situation is not caused by another person and that the accused was in genuine risk of immediate harm or danger.
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.
In English law, provocation was a mitigatory defence to murder which had taken many guises over generations many of which had been strongly disapproved and modified. In closing decades, in widely upheld form, it amounted to proving a reasonable total loss of control as a response to another's objectively provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It only applied to murder. It was abolished on 4 October 2010 by section 56(1) of the Coroners and Justice Act 2009, but thereby replaced by the superseding—and more precisely worded—loss of control.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th century BC.
In the field of criminal law, there are a variety of conditions that will tend to negate elements of a crime, known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the prosecution, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.
In the state of Maryland, the right of self-defense is mostly governed by case law, but there is also a statute.
The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides:
§ 35.05 Justification; generally.
Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land.
English law contains homicide offences – those acts involving the death of another person. For a crime to be considered homicide, it must take place after the victim's legally recognised birth, and before their legal death. There is also the usually uncontroversial requirement that the victim be under the "Queen's peace". The death must be causally linked to the actions of the defendant. Since the abolition of the year and a day rule, there is no maximum time period between any act being committed and the victim's death, so long as the former caused the latter.
