LWZ114 Lecture 6: Law of Crime 3.1
SELF-DEFENCE, DURESS, NECESSITY & COMPLICITY
SELF-DEFENCE
❖ CLCA s15(1): It is a {complete} defence to a charge of any offence if:
➢ (a) the D genuinely believed the conduct (to which the charge relates) to be necessary and reasonable for a
defensive purpose; and
➢ (b) the conduct was, in the circumstances as the D genuinely believed them to be, reasonably proportionate to the
threat the D genuinely believed to exist.
❖ CLCA s15(2): It is a partial defence to a charge of murder (reducing the offence to manslaughter) if:
➢ (a) {same as s15(1)(a)}; but
➢ (b) the conduct was not {rest is same as s15(1)(b)}.
❖ CLCA s15(3): 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.
❖ CLCA s15(4): However, if a person:
➢ (a) resists another who is purporting to exercise a power of arrest, or some other power of law enforcement; or
➢ (b) resists another who is acting in response to an unlawful act against person or property committed by the
person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose, unless the person genuinely believes, on reasonable
grounds, that the other person is acting unlawfully.
❖ CLCA s15(5): If a D raises a defence under this section, the defence is taken to have been established unless the P
disproves the defence beyond reasonable doubt.
❖ Reasonableness of belief
➢ Police v Lloyd: The accused’s belief need not be reasonable.
❖ Type of harm threatened
➢ Zecevic: Conduct falling short of the infliction of death or serious bodily harm (eg. rape, prolonged incarceration,
infliction of severe pain) could justify the infliction of lethal force.
❖ Pre-emptive strikes
➢ Morgan v Coleman per Wells J: The fact that D acted in self-defence before an attack began does not, by itself,
bar the defence.
❖ Self-defence against lawful conduct
➢ Zecevic: D can plead self-defence even if the attack/threat is lawful.
➢ But see s15(4): Self-defence is unavailable to resistance to lawful force, unless the accused genuinely believes, on
reasonable grounds, that the other person is acting unlawfully.
DURESS
Is duress available as a defence?
❖ Duress as a defence to murder
➢ Brown & Morley + Darrington & McGauley: Duress is unavailable to principals in the 1st degree to murder.
➢ Duress with respect to secondary participants is unclear in SA.
▪ Brown & Morley (SC-SA) + Howe (HL-UK): Duress is no defence to anyone complicit in murder.
▪ DPP v Lynch (HL-UK) + Darrington & McGauley (SC-VIC): Duress is available as a defence to a charge of
murder as a principal in the 2nd degree.
❖ Self-induced duress
➢ Brown & Morley (Bray) + Palazoff (Zelling): Defence of duress is unavailable to persons who have deliberately
placed themselves in a situation where duress can be predicted.
❖ Type of threat allowed
➢ Palazoff: Threats to the accused’s family are as relevant to the duress defence as threats to the accused himself.
➢ Palazoff: Threats of future violence will suffice, provided it was continuing and still effective in its operation on
the accused’s mind at the time the offence was committed.
➢ Brown: The threat must have compelled the accused to commit the offence.
Is duress established on the facts?
❖ Palazoff: The (complete) defence of duress succeeds if:
➢ a person of ordinary firmness of mind with the same age, sex, background and other personal characteristics of
the accused (except perhaps strength of mind),
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Document Summary
Clca s15(1): it is a {complete} defence to a charge of any offence if: (a) the d genuinely believed the conduct (to which the charge relates) to be necessary and reasonable for a defensive purpose; and. (b) the conduct was, in the circumstances as the d genuinely believed them to be, reasonably proportionate to the threat the d genuinely believed to exist. Clca s15(2): it is a partial defence to a charge of murder (reducing the offence to manslaughter) if: (b) the conduct was not {rest is same as s15(1)(b)}. Clca s15(3): 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. (a) resists another who is purporting to exercise a power of arrest, or some other power of law enforcement; or.
