lc290 Partial Defences to Murder report - Law Commission

matter of principle, from the way the law had developed in Australia 6 but also
stated that the draft clause avoided the complexity and difficulty which was
thought to have influenced the High Court of Australia when, in DPP v. Zecevic, 7
it overruled its previous decision in Howe. 8
4.4 For the reasons set out below we do not recommend that there should be a
separate partial defence of excessive force in circumstances, respectively: where
it was lawful for the defendant to use some force but not as much as was, in fact,
used; or where there has been pre-emptive use of force where the threat of force
was insufficiently imminent potentially to attract the defence of self-defence. In
our view, insofar as there is a need for such a partial defence, it is sufficiently
catered for within our recommendations for reform of the law of provocation. 9
THE DEFENCE OF SELF-DEFENCE
4.5 Self-defence, at common law, provides a complete defence to any charge of fatal
or non-fatal violence. A person (D) whose conduct and state of mind falls within
the parameters of the defence does not act unlawfully and so is not guilty of any
offence. Conversely, a person whose conduct and/or state of mind does not fall
within the defence acts unlawfully and therefore stands to be convicted.
4.6 The basis of the present common law of self-defence is that D has a complete
defence to a charge of assault (of whatever seriousness, including murder) if two
requirements are met. The first is that D performs the external element of such an
offence in defence of himself or herself, or another, from what he perceives as an
actual or imminent unlawful assault. The second is that the steps that he takes
are reasonable in the circumstances as D believes them to be. Thus, D is to be
judged on the facts as he or she believes them to be. 10 The question of whether
the force used was reasonable in those circumstances is, however, an objective
one to be answered by the jury. The tests were succinctly described in Owino as
(c ) to protect himself or another from unlawful force or unlawful personal
harm;
(d) to prevent or terminate the unlawful detention of himself or another;
(e) to protect property (whether belonging to himself or another) from
unlawful appropriation, destruction or damage; or
(f) to prevent or terminate a trespass to his person or property.
6 Law Com No 177, vol 2, para 14.19, citing Howe (1958) 100 CLR 448.
7 (1987) 162 CLR 645.
8 (1958) 100 CLR 448.
9 As we explain in Part 3.
10 Williams (Gladstone) [1987] 3 All ER 411 where it was held that if a defendant was
labouring under a mistake of fact as to the circumstances when he committed an alleged
offence, he was to be judged according to his mistaken view of the facts regardless of
whether his mistake was reasonable or unreasonable. The reasonableness or otherwise of
the defendant’s belief was only material to the question of whether the belief was in fact
held by the defendant at all. See also Beckford [1988] AC 130.
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