Area of Law – Assaults / Violence Offences

An Article about self defence

Defences – Self Defence
Self defence is a very common defence to a criminal charge. Often the Police choose one side of the fight afterwards and charge the person who ended up winning and not the person who caused it or the person you were defending yourself against.

What does it mean?
The High Court said in Zecevics at 661 that the direction as to self-defence “requires no set words or formula” and the question to be asked “is quite simple”, namely:

“It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

As the joint judgment then stated, the question is one of general application not limited to homicide.

Defence of another
What was said in Zecevics at 661 is appropriate, with suitable alterations, to cases where the lawful excuse raised is the necessity of defending another person.

Ormiston J in R v Portelli VSCA 178 at para 23

(i.e. you can run the defence of defence of another)

Some of the law on these issues flows on from here. It is just a snapshot as it is a very complex area of law.

Reasonableness of actions
A person who kills with the intention of killing or doing serious bodily harm “can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response”. That certainly is concentrating on the objective test of reasonableness. They continued:

“A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence.”

It may be observed that this passage again concentrates very much on the reasonableness of the belief that the accused in fact held. That conclusion is entirely consistent with the conclusion reached a little earlier that the element of reasonableness remained part of the test for self-defence and that it was not a test which, as counsel had argued, depended solely on the subjective belief of the accused.

R v Portelli VSCA 178 at para 24

In the present case no aspect of the judge’s charge as to reasonableness is attacked save for that which inferentially flows from the claimed error relating to proportionality. The first thing to note about the majority view in Zecevic is that they treat proportionality as one of the considerations which the jury might properly take into account in reaching conclusions as to the reasonableness of the accused’s actions. That discussion consequently commences by stating that the judge in charging the jury should place the question of self-defence”in its factual setting, identifying those considerations which may assist the jury to reach its conclusion”. They warn that in attempting to identify considerations abstractly there is a danger of elevating matters of evidence into rules of law. Their particular example is particularly pertinent to the present case:

“For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered.”

But they warned:

“However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone.”

They continued by suggesting that the judge should offer assistance by way of comment as is appropriate to the particular case and that it will “often also be desirable” to tell the jury that it “should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.” Doubtless their Honours were thinking of that succinct and pointed aphorism of Holmes, J. in Brown v. United States, as reiterated by Dixon, C.J. in R. v. Howe: “Detached reflection cannot be demanded in the presence of an uplifted knife.”

It can be seen from this why it has been said from time to time that there is no separate requirement for the response of the accused to be proportionate It is not that proportionality is insignificant, indeed in some cases, particularly one like the present, which started as a fist fight, it may be seen to be critical. Nevertheless, as the High Court has pointed out, proportionality is simply one of a number of factors which may be considered by the jury in coming to a decision whether the accused’s response has been reasonable. Finally it may be seen that a simple requirement that responses in these situations should be “proportionate” overlooks the emergencies of the moment. It might suggest that a blow with the fist can only be answered with another blow of the fist, but that is not what is meant. It requires that the prosecution prove that the acts of the accused are plainly disproportionate or, as has sometimes been said, “out of all proportion” to the nature of the attack to which response is being made. Indeed, it will often be the extent of the disproportion of response which will be critical to a determination of what is reasonable in all the circumstances. It is, however, but an aspect of the accused’s behaviour which goes to the ultimate decision of the jury whether the prosecution has shown the unreasonableness of the accused’s acts such as to establish, in the present case, a want of lawful excuse.

What is required by way of directions in cases of self-defence and the like has not often been the subject of detailed analysis since Zecevic was decided, at least in States applying the common law rules, except on a relatively small number of occasions. This has largely been the result of the simple test suggested in the joint judgment inZecevic and the observation that any explanation to the jury “requires no set words or formula”. Nevertheless Hunt, J. in both R. v. Alpagut and Dziduch said that the appropriate way to explain how the burden lies on the Crown is to state the fundamental question taken or adapted from Zecevic and then to say that “the offence is proved only if the Crown has established either that the accused had no belief that it was necessary in self-defence intentionally to wound the victim with intent to cause him really serious bodily injury or that there were no reasonable grounds for such a belief.” Hunt, J. was there dealing with the offence of wounding with intent to occasion grievous bodily harm but the words need only minor adaptation for the purposes of a count charging the intentional causing of serious injury in this State.

There also arose in Dziduch a real issue as to whether the accused’s response was or was not proportionate, in the relevant sense of the term, to the attack the accused believed he was undergoing. As to that Hunt, J., correctly in my respectful opinion, emphasised that the question of proportionality was not a separate issue but one only of a number of considerations which the jury had to take into account in determining the principal issue at the trial. Of course, the accused’s response in any given situation is always important and the extent of that response may assist the Crown in denying one or other of the conditions of the present test. Proportionality is not, however, something to be looked at independently, but merely as a factor assisting the jury in determining what the accused in fact believed was necessary in the circumstances and whether the accused’s perception could fairly be described as reasonable. Although reasonableness remains part of the test, it is not a test based on “that of a hypothetical reasonable man”, but that of the accused as subjectively perceived. The test laid down in para.1(b) of the propositions approved in Viro v. The Queen remains untouched by the other criticisms of the tests in Zecevic. It read: “By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.” That this “not completely objective” test has survived Zecevic may be seen from decisions such as R. v. Conlon and R. v. Hawes. As I would see it, it is thus dangerous to treat the question of proportionality as some independent question objectively to be assessed by the jury. It must remain part of the overall consideration of the accused’s conduct and therefore as one of the various considerations to be taken into account, as described by the High Court in Zecevic.

Thus it is not surprising that Hunt, J. in Dziduc expressed this opinion as to the way in which proportionality should be dealt with in the judge’s charge:

“Where, as in the present case, an issue does arise as to whether the force used by the accused was proportionate to the threat offered, that issue is relevant to the fundamental question as I have stated it, but it is not a separate question. The jury should be directed that the Crown must establish that the force in fact used by the accused was out of all proportion to any attack upon him which he could reasonably have believed was threatened by the victim.”

Hunt, J. used the words “out of all proportion” but I do not see that as inconsistent with the expression used by the judge in the present case, namely, “plainly disproportionate”. In each case the test denies that there is any question of imposing an obligation on an accused to act in some precisely proportionate way and makes allowance for any difficulty an accused such as the applicant may have found himself in in weighing “precisely the exact action” which should have been taken to avoid the threat which he reasonably believed Mr Bonnici faced at the time. Again an accused’s dilemma reflects why it is that the reasonableness of such actions is not to be determined on a wholly objective basis.

Counsel also relied upon a statement appearing at 383 of Dziduch by Hunt, J. in relation to the direction given by the judge in that case. The language used by the trial judge there was convoluted and the direction took a far different form from that in the present case. There was, so it seems, an attempt by the judge to pose the question of the proportionality of the accused’s response as forming only part of the issue as to reasonableness. As to that, Hunt, J. said that the direction would still have been wrong “because, as I have already pointed out, the question of proportion is relevant to the first question which he posed; it is not a separate question at all.” Counsel on the present application conceded that the circumstances here were not exactly the same and I do not see it useful to examine precisely what was said and criticised in Dziduch. It is sufficient that the Court reiterated the need to have proportionality considered as one of the various considerations going to the issues raised in the test propounded in Zecevic. It is not a separate question and it should not be posed in a way which suggests that it is.

Doubtless all the judge was trying to tell the jury in the present case was that the principal aspect of the applicant’s behaviour which was in issue was whether his actions were out of all proportion to the threat posed to Mr Bonnici. To do so may have been justified if it came as part of the judge’s summary of the arguments put on each side. Here, however, her Honour was attempting to give directions as to the relevant law. To pick out one relevant consideration, namely proportionality, and to add a question based on it to a test which has been said now on many occasions to be a single test, was playing with fire. If the correct single question had just been asked and if the jury had given the correct answer to that, then what purpose was being served by asking a further question? The judge, knowing that proportionality was critical to the jury’s decision may well have thought that they had to return to it, albeit that they had concluded (hypothetically) that the applicant’s conduct had been reasonable. They were then asked, as the last consideration to be taken into account, whether objectively the applicant’s response was out of proportion to the attack faced by Mr Bonnici. To do so was to emphasise one aspect alone and in a way which made it both entirely objective and too limiting, in that it suggested the applicant’s response must have been precisely proportionate to the threat. The latter approach has been frowned on for many years and it was, clearly enough, merely a shorthand by the judge who had early spoken of the relevant test being based on what was “plainly disproportionate”. As she had earlier said, precision of response cannot be expected in the emergency of the moment, but it was not a matter where an objective assessment was the whole answer. The jury was obliged to assess what the applicant believed was both the risk faced by Mr Bonnici and what the applicant believed was necessary to do in response. In the end, bearing in mind the onus resting on the prosecution, that belief had to be considered by the jury to have been reasonable, but it was not merely a question of asking what was reasonable from the viewpoint of an outside observer. Unfortunately the rider took the question of proportionality beyond the subjective beliefs of the applicant and left it solely for objective assessment by the jury, or so it may have appeared. Such an approach placed an undue and inappropriate emphasis on one issue alone. It should not have been added to the correct test in the way that it was.


Date: 09/01/2009