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Excessive self defence
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 (1978) 141 CLR 88 Aickin J said at 180:
[There is] a real distinction in the degree of culpability of an accused who has killed having formed the requisite intention without any mitigating circumstance, and an accused who, in response to a real or a reasonably apprehended attack, strikes a blow in order to defend himself, but uses force beyond that required by the occasion and thereby kills the attacker.
The defence was first recognised in the common law in R v McKay (1957) VR 560 where a farmer shot and fatally wounded a chicken thief, and confirmed in R v Howe (1958) SASR 95 where Mayo J held at 121-122:
A person who is subjected to a violent and felonious attack and who, in endeavouring, by way of self-defence, to prevent the consummation of that attack by force exercises more force than a reasonable man [sic] would consider necessary in the circumstances, but no more than what he [or she] honestly believed to be necessary in the circumstances, is guilty of manslaughter and not of murder.
This mitigatory defence was abolished in Zecevic v Director of Public Prosecutions 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:
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3) For the purposes of this section, a person acts for a defensive purpose if the person acts:
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
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:
(i) to protect property from unlawful appropriation, destruction, damage or interference; or
(ii) to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii) to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and the defendant did not intend to cause death (emphasis added).
In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act 1900 (NSW). Section 421 states:
(a) the person uses force that involves the intentional or reckless infliction of death, and
(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.
(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.
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.
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.
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