Zecevic v Director Of Public Prosecutions Vic

Zecevic v Director Of Public Prosecutions Vic - [1987] HCA 26 - HCA 1987 case summary — Zoe

[22]

Nevertheless, the modern law of self-defence has its origin in rules which distinguished between justifiable and excusable homicide. The importance of the distinction lay largely in the different consequences of successful pleas of justification and excuse and now is a matter of history. Justifiable homicide carried with it commendation rather than blame and accordingly entitled the accused to total acquittal, entailing no forfeiture and requiring no pardon. It extended to killing done in the execution of justice, which came to include both the apprehension of felons and the prevention of felonies and thus those cases of self-defence which were in response to a felonious attack by the deceased. Excusable homicide, on the other hand, was not entirely without blame and merely excused rather than acquitted, requiring, at first, a pardon and involving, for a somewhat longer period, forfeiture. It was concerned, not with the execution of justice, but with a necessary and reasonable response to a threat to life and limb: see Reg. v. Lawson and Forsythe [18] , per Ormiston J.; Dixon, The Development of the Law of Homicide, Australian Law Journal, vol. 9 (Supp.) (1935), p. 64; Snelling, Killing in Self-Defence, Australian Law Journal, vol. 34 (1960), p. 130. Any practical distinction between justifiable homicide and excusable homicide disappeared with the abolition of forfeiture by statute in 1828 and today it is no part of the law in Australia to differentiate between the two: see 9 Geo. IV, ch. 31, s. 10, (U.K.) enacted in Victoria from time to time; cf. Crimes Act 1958 Vict., s. 7, repealed by the Crimes (Classification of Offences) Act 1981 Vict., s. 11(1). But the history of the matter serves to explain why the requirement of reasonableness, which was a requirement of excusable homicide, has remained part of the law of self-defence. Moreover, it establishes why that requirement ought not be regarded as a definitional element of the offence in question but as going rather to exculpation. True it is that in result a successful plea of self-defence resembles justification rather than excuse because it entitles the accused to a full acquittal, but in scope and in practice nowadays the plea has a greater connection with excusable homicide, being in most cases related to the preservation of life and limb rather than the execution of justice.

[47]

It is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful. In Reg. v. Lawson and Forsythe [46] , where the Full Court of the Supreme Court of Victoria dutifully followed Viro, Ormiston J. found this qualification on the availability of the defence of self-defence difficult to accept. In the course of a judgment written after deep research, his Honour referred to three cases from the thirteenth century as the only examples of self-defence "against acts by a victim which were not felonious and not criminally unlawful" [47] . In two of the cases, the victim was insane; in the third the victim attacked the accused in the mistaken belief that he was attacking a thief whom he and the accused were pursuing. His Honour appears to have thought that when "unlawful" is used in the context of the law of self-defence to describe the force or violence against which the accused defends himself, it is used to connote the criminal responsibility of the victim for an offence. If the term had been used to connote criminal responsibility, then his Honour would have been right to regard the test of unlawfulness as inappropriate. One example will suffice, however, to show that "unlawful" is not used to connote the criminal responsibility of the victim for an offence, but to connote violence which is not authorized, justified or excused by law whatever be the state of mind of the person who inflicts it. Sir James Fitzjames Stephen, in his Digest of the Criminal Law, 3rd ed. (1883), p. 136, stated the general rule governing all cases of self-defence - he called it "private defence" - thus: The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules. (Emphasis added.) After setting out a number of subsidiary rules, the learned author gave as the leading illustration of his proposition an instance where the force against which an accused defended himself had been inflicted by a victim who could have had no mens rea (p. 138): A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any crime. The footnote to the illustration makes it clear that the unlawful violence to which he refers in the proposition may be inflicted by a person of sound mind who has no mens rea: This seems to follow directly from the authorities cited. So, if A were under a mistake of fact which B had no time to explain. In the Code drafted by Sir Samuel Griffith, "unlawful" is used in the self-defence provisions to describe the character of the force against which a person may defend himself, not to describe force applied by a victim who is criminally responsible for applying it: see the Criminal Code Q., ss. 246, 271; W.A., ss. 223, 248, which operate independently of the criminal responsibility provisions in Ch. V. The provisions of the Griffith Code relating to self-defence followed the 1880 Bill based on the 1879 Report of the Royal Commission. 1. (1978) 141 C.L.R., at p. 116. 2. [1986] V.R. 515. 3. [1986] V.R., at p. 556.

[50]

The test of belief on reasonable grounds of the necessity to do what is done in self-defence, if it be adopted as an exhaustive test, would extend the defence to cases where the accused is defending himself against lawful force. The test would not exclude cases where the accused does nothing to court the lawful application of force to him (as in the case of the lawful arrest of an innocent man) or where he does something unlawful but not necessarily violent which causes the lawful application of force to him (as in the case of a prisoner who tries to escape from lawful custody) or where lawful force is threatened or applied to him by the victim in protection of a third party (as in the case of an attack by the accused on the third party). In any of these cases, the person who threatens to apply or applies force to the accused initiates the violence against which the accused defends himself and the accused might have reasonable grounds to believe that, if he does not do what is necessary to defend himself, that force will be applied or will continue to be applied to him. Unless a criterion of defence against unlawful force is adopted, the defence of self-defence may be extended to cases of these kinds. That is because one cannot say that the accused's initial conduct (if any) which evoked the threat to apply (or the application of) lawful force to himself is inconsistent with his subsequent belief on reasonable grounds that it was necessary to defend himself against the violence which that conduct evoked. An accused bent on wrong-doing would ordinarily expect or desire that he could avoid the application to himself of lawful force which would thwart his plan. One could not avoid the inappropriate extension of the defence by applying the reasonable belief test to an entire situation from start to finish: self-defence is a justification or excuse for the doing of the precise act charged; the surrounding circumstances may be highly relevant as evidence of the accused's belief and of his grounds for that belief, but the defence would not be excluded merely by showing that the accused ought not to have brought about the sequence of events in which he did the act charged.

[55]

The formulation in Viro v. The Queen [51] of a summary statement of the task of the jury in deciding an issue of self-defence on a murder trial was intended to provide a concise statement of principle to which reference could be made by a trial judge in framing, in language suitable for a jury, legal directions appropriate to enable the jury correctly to identify and comprehend the real questions of fact which must be resolved in deciding such an issue in a particular case. The concurrence of a majority of the Court in that formulation and the inherent complexity of some of the notions which it encapsulated made it perhaps inevitable that it would be seen by some trial judges as providing a convenient and safe set of directions to be given verbatim to a jury in any such case. The use of the formulation in that way creates a situation in which an ordinary juror must experience extreme difficulty in comprehending the process which he and his fellow jurors are being instructed to follow in determining an issue of self-defence. In part, that difficulty is the predictable result of the use for the purpose of giving oral directions to a jury of a formulation which was framed to be read by lawyers. In part, it results from the fact that the formulation synthesizes summary expositions of two distinct matters of legal principle: the elements of self-defence as a defence to murder and/or manslaughter and the effect of the application of the criminal onus of disproof which rests upon the Crown in relation to such a defence. If it had resulted only from those causes, the difficulty could, no doubt, be avoided or overcome by careful explanation in appropriately framed oral directions: cf., e.g., Morgan v. Colman [52] ; per Street C.J., Reg. v. McManus [53] . In part however, the difficulty of comprehension of the formulation by an ordinary juror arises from the complicated nature of the actual process to which it commits him in the resolution of what should be an essentially uncomplicated issue of fact, namely, whether the accused was acting in self-defence. In particular, it lies in the different guises in which the concept of reasonableness appears.

[59]

The first and second stage requirements of reasonableness under the formulation are, upon analysis, a mixture of the objective and subjective. The accused's belief that an unlawful attack of the relevant kind was being made upon him must have been reasonable not in the completely objective sense of what a reasonable man would have believed but in the qualified objective sense of what the accused himself might reasonably believe in all the circumstances in which he found himself. The second stage requirement is again not a completely objective one. It is that the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced. Under the words of the formulation, it is arguable that there is a subtle difference in nature between the notions of reasonableness conveyed by the first and second stage requirements in that the first, as worded, is of the reasonableness of the subjective belief of an unlawful attack whereas the second, as worded, is of the reasonableness not of a subjective belief of proportionality but of actual proportionality between force used and perceived danger. Such a subtle difference in nature would be open to the valid objection that it was more likely to bemuse than to assist a jury. Upon analysis however, it seems to me that no such difference in nature was intended. When it is read in the context of the judgments of Stephen, Mason, Jacobs and Aickin JJ. in Viro and of the judgment of Dixon C.J. (in which McTiernan and Fullagar JJ. concurred) in Reg. v. Howe [54] , the second stage requirement of reasonableness in the Viro formulation can be seen as intended to reflect the second of the two tests of proportionality which Dixon C.J. propounded in alternative form throughout his judgment in Howe. Dixon C.J. initially expressed that test [55] in words which, like those of the Viro formulation, literally indicate a requirement of actual proportionality between the force used and the perceived danger: "no more force than was proportionate to the danger in which he reasonably supposed he stood". In a more detailed statement of the test subsequently in his judgment however, Dixon C.J. indicated that he did not intend, by that wording, to convey anything more than the need for a reasonably held belief on the part of the accused that there was proportionality between the force used and the reasonably perceived danger ("what the circumstances could cause him reasonably to believe" to be necessary for his protection) [56] . If, as I think it should be, the second stage test of reasonableness in the Viro formulation is read in that sense, there is no difference in nature between it and the first stage test. Each consists of a requirement that a subjective perception or belief of the accused should be reasonable in the circumstances in which the accused was placed. So understood, the first and second stage requirements of reasonableness under the Viro formulation are properly to be seen as the complementary components of an overall requirement that the accused reasonably believed that he was acting in self-defence in the sense of using appropriate force against an unlawful attack of the relevant kind. The question remains whether it is necessary that the first and second stage requirements of reasonableness should be kept separate.

[62]

The defence of self-defence is embedded deeply in ordinary standards of what is fair and just. It sounds as readily in the voice of the schoolchild who protests that he or she was only defending himself or herself from the attack of another child as it does in that of the sovereign state which claims that it was but protecting its citizens or its territory against the aggression of another state. As a matter of those ordinary standards, the defence does not extend to excuse action which goes too far in the sense that it is excessive or disproportionate to the situation of actual or threatened attack. Even in such a case however, the fact that what was done was done genuinely in self-defence differentiates the culpability involved from the case where what was done was done wantonly and without any such extenuation. The same can be said of the analogous, and perhaps a fortiori, case where what was done was done genuinely, but excessively, in defence of another. In this country, at least since Reg. v. Howe, it has been accepted that the common law relating to homicide has reflected this ordinary perception of what is fair and just. As Dixon C.J. observed in Howe [57] , it seems "reasonable in principle to regard such a homicide as reduced to manslaughter". More than twelve years after Howe, the decision of the Privy Council on an appeal from Jamaica in Palmer v. The Queen [58] was seen, in the context of times that are gone, as requiring a reconsideration of the question by this Court. Such a reconsideration was undertaken by the whole Court in Viro. The result of it was that the decision and reasoning in Howe were affirmed. In unambiguous terms, a majority of the Court accepted that the preferable view was that, where self-defence failed as a complete defence in a case of homicide only by reason of the use of excessive force, the law of this country accorded with ordinary standards of culpability and adjudged the accused to be guilty of manslaughter, not murder: see Viro [59] per Stephen J., [60] per Mason J., [61] per Jacobs J. and [62] per Aickin J. The rationale, as a matter of legal principle, of that view which was accepted by those four members of the Court corresponded with that which had been advanced by the members of the Supreme Court of South Australia in Howe [63] and accepted by Dixon C.J. in that case, namely, that, notwithstanding the existence of an intent to kill or inflict grievous bodily harm, the fact that a man genuinely believed that he was doing only what he was entitled (or morally obliged) to do and acting in reasonable defence of himself (or another) "would deprive the act of the requisite" element of "malice aforethought" which distinguishes murder from manslaughter: see per Jacobs J. in Viro [64] .

[68]

The vice of such a retrospective abolition of a defence to a charge of murder lies not in the prospect of injustice to some imaginary killer who has killed on the basis that his crime will be reduced from murder to manslaughter in the event that he was found to have been acting excessively in self-defence. It lies in the fundamental injustice of inequality under the law which is unavoidable when the administration of the criminal law is reduced to a macabre lottery by what the late Professor Stone described as flagrant violation of the "well-established judicial policies of the criminal law in favorem libertatis, and against ex post facto punishment":Precedent and Law (1985), p. 190. It is simply wrong that an accused may be adjudged not guilty or guilty of murder according to the chance of whether his trial is completed before or after this Court has abolished a defence which, under the law which the Court itself had definitively settled (see per Gibbs J. in Viro [69] ) at the time the offence was committed, reduced the offence from murder to manslaughter. An obvious consequence of a decision of this Court overruling Viro and Howe would be to deprive all those accused whose trials have been delayed by inefficiencies in the administration of criminal justice of a defence which would have been available to them if their trials had not been unduly delayed. The possible consequences would also include: that some accused awaiting trial were faced by confessional statements which were made on the basis of correct professional advice about the then state of the law and which would not have been made if it had been known that the law was not as this Court had authoritatively stated it to be; that other accused were deprived of the defence upon which the whole of the preparation of their trial had been largely based; that some accused were even deprived of their main defence to a charge of murder midway in the course of their actual trial. It would also seem unavoidable that, in the lottery which an overruling of Viro would create, some accused would be deprived of a defence which would reduce their offence from murder to manslaughter by reason of the fact that, through no fault of their own, a first trial had miscarried or resulted in disagreement. Indeed, the present case would provide an example of such a case if, on a retrial, the applicant were convicted of murder by reason of the fact that this Court had retrospectively changed the law between his first and second trials.

[70]

What then are the considerations which weigh in favour of an overruling of Howe and Viro at this stage? There is none which seems to me to be legitimate. True it is that there are some decisions in other common law jurisdictions which are inconsistent with the decisions in Howe and Viro that excessive self-defence in a homicide case is effective to reduce the offence from murder to manslaughter. The most important of those cases (excluding those involving the provisions of a Criminal Code) remains the decision of the Privy Council in Palmer. The Privy Council's decision was, however, carefully considered by the whole Court and rejected by a clear majority in Viro. It is also true that there are strong arguments to the effect that, both as a matter of history and as a matter of principle, the approach adopted in Palmer or in the dissenting judgment of Barwick C.J. in Viro is to be preferred to that accepted by the majority in the last-mentioned case. Those arguments must encounter the analysis of earlier cases which is to be found in the judgment of the Supreme Court of South Australia in Howe and in the judgments of the majority in Viro : (and see, as to the difficulties of principle involved in the subsequent application of Palmer, Glanville Williams, op. cit., p. 507. They must also encounter modern notions of the content of malice aforethought in the crime of murder and the greater relevance in present jurisprudence of notions of abstract justice. The compelling answer to those arguments for present purposes is, however, that they were understood, considered and rejected by the Court in Howe and in Viro. There remains the consideration that to abolish excessive self-defence as a defence to murder would make the functions of a trial judge (in summing up) and a jury (in reaching a verdict) somewhat easier. That consideration seems to me to be of no validity whatever when what is involved is a question whether this Court should overrule a previous decision of its own with the practical effect that an established defence to murder should be retrospectively abolished. Indeed, there are few things that would be more likely to undermine the institution of trial by jury than for this Court to adopt the approach that a decision having that practical effect was made necessary by a need to make the task of a jury easier.

[72]

The second criticism is that the Viro formulation contains what is for me a basic and complicating conceptual anomaly. That anomaly lies in the different consequences of an absence of the relevant element of reasonableness in the first and second stage requirements. Accepting, as Viro established, that an objective element of reasonableness is a requirement of the common law defence of self-defence as a complete answer in a case of homicide, one would expect the requirement to apply indifferently to the other elements of the defence, that is to say, one would expect the complete defence to be that the accused reasonably believed that he was acting in reasonable self-defence in the relevant sense. If the defence failed as a complete defence only by reason of the absence of the element of reasonableness of the accused's belief, there is no real basis in principle or justice for the drawing of general distinctions in terms of moral culpability or subjective malice according to whether the reason for the failure was that the accused's perception of an occasion of self-defence was unreasonable or that his belief that the amount of force used was reasonably proportionate to the danger was unreasonable. In either event, the position disclosed by the failure of the defence as a complete defence would be that the accused genuinely, though unreasonably, believed that he was acting in reasonable self-defence. Regardless of whether one sees the basis of the decision in Viro that excessive self-defence reduces homicide from murder to manslaughter as lying in ordinary standards of moral culpability or in modern notions of the content of malice aforethought in the crime of murder, it is anomalous that the offence should not also be reduced to manslaughter in a case where the element of objective reasonableness in the accused's belief that he was acting in self-defence is absent because the accused's genuine perception of an occasion of self-defence was unreasonable. The majority of the Court in Viro did not address itself to that question. In my view, the actual reasoning in the majority judgments in Viro supports the conclusion that the proper verdict in a case of homicide where self-defence fails as a complete defence by reason only of the fact that the accused's genuine belief that he was acting in reasonable self-defence was not reasonably held is manslaughter regardless of whether the absence of the element of reasonableness is caused by the unreasonableness of the perception of an occasion of self-defence or the unreasonableness of the belief that the force used was not excessive. If that view be accepted, as I think it should be, much of the difficulty of the Viro formulation disappears in that there is no longer any need to distinguish between the first and second stage requirements of reasonableness.

[91]

Even if it were not abundantly clear at a much earlier stage it is undeniable since Woolmington v. Director of Public Prosecutions, that upon a charge of murder, it is for the Crown, whatever the circumstances of the killing, to establish beyond reasonable doubt the existence of the requisite malice on the part of the accused. This of course may be done by proof of a deliberate killing unaccompanied by any mitigating or alleviating circumstances. But mitigating or alleviating factors may be found in provocation or in other circumstances which tend to show that the killing was not wilful or that the accused had acted in defence of his life liberty or property. This must, I think, be taken to be the reason underlying the rule followed in the almost countless cases concerned with homicide by accused persons in the course of resisting an unlawful arrest or an unlawful invasion of proprietary rights or in the course of violently resisting assaults attended with circumstances of great personal indignity. It seems that in cases which fall into the last-mentioned categories the attendant circumstances may, as in clear cases of sufficient provocation, be taken as sufficient to prevent the implication that the killing was malicious in the sense in which that term has come to be understood in relation to the crime of murder: Woolmington's Case [84] ; see also Mancini v. Director of Public Prosecutions [85] ; Holmes v. Director of Public Prosecutions and Chan Kau v. The Queen [86] . For my own part I can see no real distinction between cases of the character just mentioned and cases where the unlawful killing has taken place upon an occasion of and for the purposes of self-defence . Later [87] his Honour stated: The many cases to which we have been referred satisfy me that the test to be applied by a jury in cases where self-defence as justification is rejected rests upon a broader basis than the accused's honest, though unreasonable, belief. 1. (1958) 100 C.L.R., at p. 467. 2. [1935] A.C., at p. 482. 3. [1942] A.C. 1. 4. [1955] A.C. 206. 5. (1958) 100 C.L.R., at p. 468.

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