5.3 Deviation from the Conditions of Private Defence
5.3.2 The Australian Case Law
Justly or not, Australian case law regarding this issue has been awarded much con- sideration in the Anglo-American legal world. Given the absence of a legislated arrangement for the issue, and given the serious mandatory punishment that is established for the offence of murder, Australian courts have developed a special doctrine, called ‘excessive self-defence’ that dominated Australian case law for three decades.1152This period began with the case of McKay(1957), in which it was held that1153:
If the occasion warrants action in self-defence . . . but the person taking action acts beyond the necessity of the occasion and kills the offender, the crime is manslaughter—
not murder.
In the following year, a holding considered as the guiding rule on this issue, was handed down in the case of Howe(1958).1154This case is considered as leading both because of its affirmation by the High Court of Australia, and also because it removed the doubt that was left in the McKay case, by determining that the doctrine is limited to cases in which the actor made a mistake. In the language of the court:
[E]xercises more force than a reasonable man would consider necessary in the circum- stances, but no more force than he honestly believes to be necessary.1155
Additional doubt was raised by scholars, who argued that the doctrine is only applicable for a mistake with regard to the necessity of using the means chosen by the actor, and not with respect to a mistake regarding the very existence of an attack. However, this distinction is unpersuasive. Although in the absence of an attack the actor harms an innocent person, the issue is not the guilt of the victim
1152 For detailed discussions of this Australian doctrine see Lanham, n 228 above; Yeo, n 733 above;
AJ Ashworth, (editorial) ‘Counter-Revolution in the Law of Self-Defence’ (1988) Crim LR 1; Howard, n 756 above; at 89–94; NC O’Brien, ‘Excessive Self-Defence: A Need for Legislation’ (1982–83) 25 Criminal Law Quarterly441, at 443–56.
1153 See R v McKay (1957) VR 560 (Australia) at 563.
1154 See R v Howe (1958) 100 CLR 448 (Australia).
1155 R v Howe(1958) SAAR 95 (Australia) (This holding, which was decided by the Appeals Court, was later upheld by the High Court in the above-mentioned ruling R v Howe (1958) 100 CLR 448 (Australia)).
but the guilt of the actor.1156In the final analysis, in both cases the guilt of the defender is identical in the sense that he made a wrong assessment of the situation in which he found himself and did not act as a reasonable person given the cir- cumstances of the case. In both of them he mistakenly believed that according to the state of things he had no other way in which to save his life except to kill the aggressor.1157This conclusion is strengthened in light of the theoretical founda- tion provided by the Australian court for its doctrine—the non-existence of the special mental element that is required within the framework of the offence of murder—‘malice aforethought’ (pre-meditation) given the special situation and the fact that the purpose of the actor was to defend or protect. For the required special mental element is a subjective factor, and it would appear that it does not exist to the same extent in both cases. An additional interpretation that was given to the Australian rule is that the mistake required for the application of the doc- trine is in fact a mistake of law that concerns the requirement of proportional- ity.1158 In light of my opinion, that the framework for deviation from the conditions of private defence must relate to all unreasonable mistakes—of fact and law alike—and not even only to them, the attempt to be precise with regard to the Australian rulings by searching for the judges’ (somewhat hidden) intentions is unnecessary.
Reviewing the development of Australian court rulings also necessitates a glance at English case law. Both the Court of Appeals (in the case of McInnes(1971)) and the Privy Council (in the case of Palmer (1971)) considered the Australian doctrine of ‘excessive self-defence’ and unambiguously and explicitly rejected it.1159As a result, and given the assumption that was then accepted, that the Privy Council rul- ings also bind the Australian courts, these courts tended to abandon the doctrine that they had developed.1160This temporary regression ceased with the important and leading ruling of the Australian High Court in the case of Viro(1978).1161This ruling confirmed the Howerule in a six to one decision. In later rulings, the appli- cation of the doctrine was even expanded to extend beyond the offence of murder to additional offences that require an ‘intent to murder’.1162This limited expansion is understandable against the background of the above-mentioned foundation that
1156 Although when justification of actual private defence is involved, the attack of a responsible aggressor is very relevant—both for the matter of the guilt of the aggressor and for the social-legal order—nevertheless, here (putative defence) the justification of private defence is not involved, but rather, the provision of an excuse for an actor based on his low or non-existent guilt.
1157 Enker, n 89 above, at 133. For a survey of the Australian case law in this matter—ibid, at 132–39;
and see also the above-mentioned references in n 1152.
1158 See, eg, Howard, n 756 above; at 90–91.
1159 See (correspondingly) the rulings R v McInnes (1971) 1 WLR 1600, 3 All ER 295; and Palmer v R (1971) 55 Cr App R 223, 2 WLR 831. See also, eg, the observation by Smith, n 820 above, on the McInnesruling; and JC Smith, ‘Commentary:Palmer v. R.; Irving v. R.’ (1971) Crim LR 649.
1160 See, eg, Yeo, n 733 above; at 349, and the references presented there.
1161 See R v Viro (1978) 141 CLR 88. For a detailed discussion of this ruling see, eg, Yeo, n 733 above.
1162 See Yeo, n 733 above; at 349, and the references that are presented there.
was provided for the doctrine—the special mental element that is required for the offence of murder. After the Virorule and its subsequent implementation by the courts, the doctrine of ‘excessive self-defence’ was viewed by all as an integral part of Australian law.1163
Against this background, the ruling of the High Court of Australia in the case of Zecevic (1987)1164was very surprising and even disappointing,1165for it adopted the English Palmer rule and rejected the Australian doctrine. It is interesting to note that the majority justices (five to two) in the Zecevicruling agreed that con- siderations regarding guilt actually supported the doctrine, and even expressed a certain regret regarding its abrogation.1166The main reason for the rejection of the doctrine was the complexity that was attributed to it, and accordingly the argu- ment regarding the heavy burden that it would impose on judges and especially on jurors. This argument was based on the Viroruling, within whose framework the court determined no less than six detailed instructions1167that must be provided to the jurors when a question of private defence arises. Indeed, these are compli- cated instructions, two of which (the latter) stem from the doctrine under discus- sion. However, several considerations should be noted. Firstly, a significant part of the complication stems from the combination of evidence law with the substantive law. Secondly, the rules of private defence are by nature complex—even without consideration of the doctrine—and the attempt to present them as simple, as was
1163 See Yeo, n 733 above; at 349, and the references that are presented there.
1164 See Zecevic v D.P.P. (1987) 71 ALR 641.
1165 Thus, eg, Ashworth wrote that the flower that was planted in the common law by the Australian courts and nurtured for 30 years was now uprooted and thrown away by the Australian High Court—
see Ashworth, n 1152 above, at 1.
1166 See Lanham’s discussion, n 228 above, at 239ff.
1167 1. (a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.
(b) 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.
2. If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.
3. If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was rea- sonably proportionate to the danger which he believed he faced.
4. If the jury is not satisfied beyond reasonable doubt that more force was used than was rea- sonably proportionate it should acquit.
5. If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder depending on the answer to the final question for the jury—did the accused believe that the force which he used was reasonably proportion- ate to the danger which he believed he faced?
6. If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter. (See R v Viro (1978) 141 CLR 88, at 146–47).
done, for example, by the Privy Council in the case of Palmer,1168is doomed to failure. Thirdly, it is nevertheless possible to set forth the rules in a less complicated manner—as was indeed suggested by the minority justices in the Zecevic1169rul- ing. Fourthly, the principal difficulty stems from the jury system, so that similar conclusions are not compulsory in a legal system in which the fact-finder is a professional judge. Fifthly—and this is perhaps the most important point—the substantive law should not be determined according to considerations of this kind.
The main consideration should be the guilt of the actor, and if this is slight (and very significantly so) despite his deviation from the conditions of private defence, his responsibility and punishment should faithfully reflect this. It should also be remembered that if the legislator overlooks the guilt factor, this may not only lead to the growth of a case law doctrine in order to fill the gap, but also may even cre- ate heavy pressure on the court to completely exculpate a person who actually deserves a certain punishment, an acquittal that stems from the total incompati- bility between the heavy criminal responsibility for the offence of murder and the limited guilt of the actor.
An additional argument that was raised by the majority justices in the Zecevic case for the negation of the doctrine is the inconsistency that it introduces into the law, since it applies only to the offence of murder (or at most, to the few offences in which the special mental element established in the definition of the offence of murder is required)1170. However, this difficulty can be and should be solved in the opposite direction: not by means of the doctrine’s abrogation, but by expand- ing it so that it constitutes a mitigating circumstance (or perhaps even an excuse) that applies to all criminal offences. Yet even if the doctrine is restricted to mur- der, it can be supported, based on several factors. Firstly, in other offences, which do not carry a mandatory punishment, the court is authorised to mitigate the punishment, and it is reasonable to assume that when the actor had a defensive or protective purpose, it will indeed incline to do so. Secondly, it is possible—as indeed was done in Australian case law—to support the distinction between the offence of murder and other offences based on the special mental element that is required for the offence of murder.
It is also argued that it is actually the lack of the doctrine that creates inconsis- tency, stemming from the fact that the punishment of an actor who kills a person intentionally but because of provocation—who has no right to use force of any sort—is mitigated, but there is no such leniency for an actor who has a right to use
1168 See Lanham, n 228 above, at 247–49.
1169 See Zecevic v D.P.P. (1987) 71 ALR 641, at 668ff; 660ff; see also the discussion by Yeo, n 733 above; at 355. In this spirit he also notes that during the not insignificant number of years of the doctrine’s implementation that preceded the Viroruling, jurors did not encounter the difficulties anticipated by the Viroinstructions.
1170 See Zecevic v D.P.P. (1987) 71 ALR 641 at 654. See also the consideration of this argument in Lanham, n 228 above, at 239ff.
a certain force but deviates from the conditions for the exercise of the force under circumstances in which it is difficult for him to assess the necessary and propor- tionate force.1171
The irony is that one of the reasons for the abrogation of the Australian doctrine of ‘excessive self-defence’ in the Zecevicruling was the desire to achieve a compat- ibility between the Australian rule and the English rule,1172and yet in England at that same time the legislation committee actually reached the conclusion that a similar doctrine should be established in the new English law.1173It should also be noted that the Australian doctrine greatly influenced similar rules which were established in other legal systems.1174