LAW1114 Lecture Notes - Lecture 15: Absolute Liability, Crimes Act 1958, Self-Defense
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Waller & Williams [6.11]: Excessive self-defence (defensive homicide)
*Common law of excessive self-defence was abolished by the High Court in
Zecevic v DPP
(Vic) (1987) 162
CLR 645
!
• The killing in defence was not a reasonable response in the circumstances, but the accused must believe
that, at the time of the killing, that the conduct was necessary to defend himself, herself or another !
o Partial defence!
• Victorian statutory equivalent: Crimes Act 1958 (Vic) ss 9AC, 9AD!
o Has special evidentiary provisions in s 9AH applicable to the circumstances where family violence is
alleged!
Waller & Williams [12.2]-[12.3]: Self-defence
• The defence of self-defence is available to crimes involving the use of, or threat of, force to the person
• To raise self-defence the person had to have acted for one of the following purposes:
(1) in order to defend herself or himself from unlawful violence;
(2) in order to defend another from unlawful violence;
(3) in order to prevent the commission of a crime; and
(4) in order to exercise a power of lawful arrest
• The accused will receive a full acquittal if all of the following conditions are satisfied:
(1) the accused was genuinely acting for one of the aforementioned purposes. Obviously, the accused
may not take advantage of such a situation arising in order to do away with an enemy;
(2) the accused used no greater degree if force than he or she honestly believed to be necessary in the
circumstances of the case. This conditions poses a test which is subjective in nature; the question is
whether the accused believed that the force used was proportionate to the necessity of the situation in
which that person was placed; and
(3) the accused used no greater degree if force than ha reasonable person would have regarded as
necessary in the circumstances of the case. This conditions poses a test which is objective in nature;
the question is not what the accused believed to be reasonably necessary, but what an ordinary person
would have regarded as necessary.
Zecevic v DPP
(Vic) (1987) 162 CLR 645
• Parties: Zecevic (applicant); Director of Public Prosecutions (Vic) (respondent)
• Jurisdiction: High Court of Australia
• Material facts:
o The appellant had asked the victim why he did not shut the gate, and the victim stabbed the appellant
in the stomach and he said ‘I blow your head off’
o The victim had a weapon in his car, which the appellant feared would be a shotgun
o The appellant, fearing for his life, went to retrieve a gun from his bedroom
o He shot and killed the victim
o The victim was a black belt in karate, a boxer and lifted weights
• Legal issue: Whether or not it was appropriate that the trial judge withdrew the plea of self-defence from
the jury
• Held (findings): Appeal allowed
o There was evidence upon which the jury could conclude that the appellant believed it was necessary to
do what he did to defend himself
§ Whether these grounds were reasonable was a matter for the jury
o The appellant returned to kill the victim after leaving for his own flat
§ If the jury believed the appellant, it is not inconceivable that it might adopt the view of the facts
which favoured him in his defence of self-defence
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