R v Flame

Self-defence?

1. The question is whether tomorrow I should leave either what I call "complete self-defence", in other words, the possibility of success of the accused with regard to both "legs" of the defence, thereby leading to a complete acquittal; or leave what I call "excessive self-defence", that is, the possibility of success of the accused with regard to the first leg but the failure of the accused with regard to the second leg, thereby leading to a verdict of not guilty of murder but guilty of manslaughter.

Complete self-defence?

1. I think it is easiest to begin at the end, in terms of whether the second leg should be left, and whether complete self-defence should be left.
2. Of course, the first leg of self-defence asks the jury to consider whether the accused carried out conduct in order to defend himself, and the second leg asks the jury to consider whether the conduct is a reasonable response in the circumstances as the accused perceived them.
3. Just focussing on the second leg, which, of course, is essential to complete self-defence: there is no doubt that Parliament took the step many years ago of "subjectifying" what was traditionally the objective leg. And Parliament thereby calls upon the tribunal of fact to think about the reasonableness of conduct as a response, however "in the circumstances as (the accused) perceived them".
4. Taking that to its logical extreme, if complete self-defence were left, the jury would be called upon to assess the reasonableness of the conduct of the accused in beating the deceased, a human being, to death, in the seeming circumstances of the accused believing that the deceased was either a demon, or possessed by a demon, or demonic, and so forth.
5. At first blush that could be the outcome of Parliament's decision to subjectify the objective leg. But I think that a complete acquittal of murder or manslaughter on such a basis is so thoroughly counter-intuitive that one would only countenance it with great caution and reluctance.
6. As well as that, the extremity of this case is that we are not speaking about an alteration in mood, arising from a drug, prohibited or otherwise. And we are not speaking of an alteration in perception to the extent that, speaking hypothetically, an accused person wrongly thought that the deceased was another person who might have previously done him harm. Nor are we speaking of a drug-induced misunderstanding as to circumstances; or a misinterpretation of what was, in truth, a baseball in a pocket, as a gun. We are not even speaking of a frank hallucination that a gun was in someone's hand, when in fact there was nothing there at all.
7. We are actually speaking of a delusion or hallucination about something that does not exist in reality; namely, a demon. If I were to leave the second leg of self-defence to the jury, the criminal law would therefore be asking twelve members of the community to assess whether it was a reasonable response of the accused to inflict violence on, as he perceived it, a fantastical and unreal, a mythological being.
8. I think that the words used by Parliament have to be given full weight - that goes without saying - but there comes a point where to apply community standards about reasonableness to something utterly fantastical goes beyond, in my opinion, the objective intention of Parliament. To repeat: I say that well aware that there has been a "subjectification" of the objective leg of self-defence.
9. I might add that the Crown Prosecutor firmly submits that complete self-defence should not be left. Senior counsel for the accused does not rely upon it, and does not contend for a complete acquittal. As well as that, as I understand it, focussing on my responsibility to leave defences that are reasonably open, even if not relied upon by either party, nor does senior counsel for the accused, as friend of the Court, as it were, suggest that it is my responsibility to leave complete self-defence.
10. In that sense then, if I were to leave complete self-defence it would be very much of my own motion. To repeat: I am well aware that there is a statutory subjectification of the objective leg. But I cannot accept that it could lead to this highly counter-intuitive result. As I say, I think that to leave the second leg of self-defence in the circumstances of this case might be seen by the jury as an utter absurdity: to ask a jury to reflect upon the reasonableness of defending oneself against a demon.
11. Finally, I do not believe that there has ever been a homicide case in the past 20 years or so where this extremity of circumstances, based upon intoxication, has arisen.
12. Normally in a murder trial I would err on the side of caution with regard to leaving possible defences. But here the potential outcome is so counter-intuitive, and as I have said, I think that the question to be asked of the jury borders on the absurd. In my opinion, if indeed, in the circumstances of this case, complete self-defence based on the second leg thereof is to be left, then that interpretation of the second leg would best be achieved by three judges of the Court of Criminal Appeal, rather than a single trial judge on his or her own.
13. For those reasons then, I do not propose to leave complete self-defence to the jury.

Excessive self-defence?

1. I turn now to the question of excessive self-defence, and focus upon the first leg.
2. The learned Crown Prosecutor has submitted that it could not be the case that the first leg could be made out - and I interpolate that I am leaving out questions of onus in this analysis, for reasons of simplicity - if the belief of the accused were wholly deluded. So that to the extent that he has succeeded in persuading me that the second leg should not be left, he extends the same analysis to the first. As I understand his point, it is that there must be sub silentio with regard to the first leg some objective, or at the least reasonable, or at the least based in reality, underpinning for the subjective belief of the accused.
3. I understand that argument, respectfully. And I accept that the two legs need to be understood as an integrated whole, in accordance with what the Court of Criminal Appeal said in Abdallah v R [2016] NSWCCA 34. But they are discrete, in my opinion. And in my opinion it has been understood for many years that, rightly or wrongly, the first leg of self-defence is completely subjective, and I have reminded myself of the oft-quoted analysis of Howie J in R v Katarzynski [2002] NSWSC 613 18 years ago. I do not believe that in the past 18 years, at the least, it has ever been called into question that the first leg is indeed wholly subjective. And I do not believe it is within my remit to read words that are simply not there into s 418(2)(a) of the Crimes Act.
4. The extremely odd result, as the Crown Prosecutor has pointed out, is that a wholly deluded belief founded on an inherent state of mind of the accused would, as a practical matter, be very likely excluded from the first leg. That is because of the proposition derived from Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 28 that the jury must not consider self-defence unless and until it rejects the defence of mental illness. And yet, on the analysis that the Crown Prosecutor resists, self-induced intoxication leading to the exact same grossly deluded belief would not be excluded.
5. I see the point of that as well, respectfully. But the fact is that Parliament has excluded self-induced intoxication perfectly explicitly from a large number of aspects of the criminal justice system.
6. They include: explicit exclusion from the partial defence of substantial impairment, s 23A(3) of the Crimes Act; explicit exclusion from mental elements with regard to certain sexual offences, s 61HE(4)(b) of the Crimes Act; explicit exclusion from exculpation for offences of basic intent, s 428D of the Crimes Act; and explicit exclusion of self-induced intoxication from mitigating features on sentence, s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
7. And yet Parliament has not explicitly excluded self-induced intoxication from the first leg of self-defence. And, as I have discussed, nor, in my opinion, has the first leg of self-defence been in any sense "objectified".
8. Although this result has some counter-intuitive aspects as well, it is not as counter-intuitive as a complete acquittal, in that the potential, in this case, would be for reduction in culpability from one form of homicide to another, namely from murder to manslaughter only.
9. And perhaps it could be said that excessive self-defence based on a wholly mistaken belief, nevertheless sincerely held, operating to reduce murder to manslaughter could fit comfortably within the objective intention of Parliament, and certainly far more comfortably than a complete acquittal.
10. I believe it is my responsibility, in short, to take Parliament at its word, with regard to the completely subjective nature of the first leg of self-defence. No authority to the contrary has been brought to my attention. The seminal authority from 2002 does not admit of "objectification" of the subjective leg. I believe it is incumbent upon me to direct the jury that excessive self-defence reducing murder to manslaughter arises for their consideration.

Conclusion

1. In short, I will not be leaving complete self-defence, leading to a complete acquittal, to the jury.
2. I do propose to leave excessive self-defence, reducing murder to manslaughter, to the jury. *****

Amendments 16 November 2020 - Cover sheet: In the catchwords added the words "response when". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2020