T A S M A N I A LAW REFORM I N S T I T U T E

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Timothy Freeman
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1 T A S M A N I A LAW REFORM I N S T I T U T E Submission Template Review of the Law Relating to Self-defence The Template contains a series of case scenarios, which are used to provide you with an opportunity express your view as to whether the defence of self-defence should be available in the circumstances of the case or whether particular characteristics of the defendant should be taken into account for the purposes of self-defence. It would be helpful if you could explain the reason for coming to your conclusion. Each case study is based on a real case. The names of the parties have been changed. The case studies contain details of the offences, which may be distressing to some readers. The Template can be filled in electronically and sent by or printed out and filled in manually and posted. The form is designed to be completed electronically by entering responses. The space provided for your answer will expand (if necessary) as you type. You are invited to include as much or as little information as you choose. Alternatively, you may print out the form and either fill it in manually or use a separate answer sheet (if you use a separate answer sheet, please ensure that you clearly number your answers to correspond with the questions in this form). Again, you are invited to include as much or as little information as you choose. After you have completed your submission please either or post the document to the Institute: law.reform@utas.edu.au Post: Tasmania Law Reform Institute Private Bag 89 Hobart TAS

2 Name: Organisation (if any): Address: Phone number: Personal information Publication of submissions Please tick the applicable box: I agree to the publication and use of my submission I agree to the anonymous publication and use of my submission I do not agree to the publication or use of my submission 2

3 The Law of Self-defence In Tasmania, the law of self-defence is contained in section 46 of the Criminal Code and is formulated in one broad principle: A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use. Self-defence is not restricted to homicide. It is a defence of general application applying to crimes such as assault, wounding and causing grievous bodily harm, as well as homicide. A successful claim of self-defence is a complete defence and the defendant is acquitted. It is well settled in Tasmania that, in assessing self-defence, there are two matters for the consideration of the jury: (1) the belief of the defendant in the need to use defensive force and; (2) the determination of whether the force used was reasonable in the circumstances as the defendant believed them to be. The Tasmania Law Reform Institute is examining whether the current law of self-defence in Tasmania should be retained or whether any amendments should be made to the existing law. As part of this review, the Institute is considering the circumstances in which a person is lawfully entitled to use force (including lethal force) in defence of themselves or another person. In addition, the Institute is considering the characteristics or attributes of the defendant that can be taken into account for the purposes of determining the reasonableness of the defendant s response in the circumstances as the defendant believed them to be. The Chapter of the Criminal Code which deals with self-defence also contains separate defences relating to defence of property. Section 40 deals with the use of force to prevent forcible entry into a dwelling-house with intent to commit any crime. The defence is couched in objective terms and requires the existence of reasonable grounds both for the belief in the need to use force and for the belief that the intruder intends to commit a crime. In relation to this defence, the Institute is considering whether the requirement of reasonable grounds should be retained or whether a more subjective assessment of the accused householder s conduct should be adopted. In addition, in relation to the degree of force used against an intruder, the Institute is examining whether the defence should sanction the use of even lethal force. 3

4 Case study one Gary was a returned soldier from Korea. On the night of the killing, Gary had been drinking at a party with Henry. There was no hostility between the two men (who were not well known to each) and they made a plan to go shooting wallabies. On their way, they arranged to drop another man (Craig) home and it was here that the shooting occurred. Henry had his dogs on the back of the ute and Gary warned Henry about keeping the dogs on the ute. After the ute stopped at Craig s house, Henry s dogs were barking and running around. Gary asked Henry to get his dogs under control. Gary had his gun resting on his lap and got out of the ute. He then saw Henry coming towards him and shot him. At his trial, medical evidence was given that at the time of the killing Gary was suffering from post-traumatic stress disorder which caused a hallucinatory belief that he was in Korea defending himself from an enemy soldier. Question 1: Should evidence of Gary s hallucinatory belief be relevant to his claim that he acted in selfdefence? For example, should the jury be allowed to take it into account in determining whether the force used was reasonable in the circumstances as Gary believed them to be? 4

5 Case study two Richard was a returned soldier from Afghanistan and had been out drinking with friends. He was tipsy but not drunk. On his way home, he went with one of his friends to a burger vendor stall. Two other men (Paul and Andrew) approached the van and Richard said that the men acted aggressively towards him. Richard had said to his friend that he was going to buy a pint of chips and Andrew said if you think that is funny, you can buy us all chips. Andrew then thrust a burger towards Richard s face and Richard knocked it to ground. Andrew then puffed up his chest and clenched his fists. Richard then hit and kicked Andrew causing serious injury. At the trial, medical evidence was given that Richard suffered posttraumatic stress disorder (PTSD) as a result of his service in Afghanistan and that his PTSD would have made him hyper-vigilant and would have a heighted awareness of potential threats. Question 2: Should evidence of Richard s PTSD be relevant to his claim that he acted in self-defence? For example, should the jury be allowed to take it into account in determining whether the force used was reasonable in the circumstances as Richard believed them to be? 5

6 Case study three Angus had been drinking alcohol at a hotel. By about 2.00am Angus was heavily intoxicated and at that time he and Matt first came into conflict. Matt had been at the hotel with his brother and was also quite intoxicated. Angus made some comments about a group of females (including Matt s aunt) who walked past his table. Matt took offence and confronted Angus during which he threatened violence. The confrontation defused and Matt attempted to shake Angus hand. Some time later, Matt again approached Angus with his anger reignited. Matt violently pushed or head-butted Angus into the hotel wall. Bouncers intervened and Angus left the hotel. Angus claimed that as he walked away, he was again confronted by Matt. Angus said that he got out a gun that he had in his waist belt and pointed it at Matt. He said that Matt then lunged at him and he shot him three times. Question 3: Should evidence of Angus intoxication be relevant to his claim that he acted in self-defence? For example, should the jury be allowed to take it into account in determining whether the force used was reasonable in the circumstances as Angus believed them to be? 6

7 Case study four Sarah was married to Carl for 20 years. During their marriage, Carl was physically and sexually abusive to Sarah. He also controlled her employment, finances and relationships with family and friends. During that time, he had killed nine of the 12 dogs that the family owned. He was a large man compared to Sarah. Carl owned a gun. Sarah was frightened of Carl and had tried to contact the police but found them unhelpful. At one point, Sarah left the marriage but returned when he promised to change. On her return, the violence escalated and Carl was also violent and threatening towards the children. Carl didn t want Sarah s mother to visit and threatened to kill one of the children if she did. Sarah s mother visited and Carl forced Sarah to pick a child s name from a hat. A child was picked and Carl indicated that he would kill the child on Sarah s mother s birthday. Sarah obtained a gun and four days before the nominated date, she put sedatives in Carl s meal and waited for him to pass out before shooting him. Question 4: Should Sarah be able to rely on defence of another in the circumstances of this case? 7

8 Case study five Frances was in a de facto relationship with James for 25 years. During their relationship, James was physically and sexually abusive to Frances. Frances was subjected to a multitude of humiliating and repulsive acts, threats of violence and threats to kill and actual violence. Frances had previously left James and had moved interstate. However, he tracked her down and the relationship (and the violence) resumed. In the month before the killing, James would not let Frances out of his sight. In the week before the killing, he told Frances that he had hidden cartridges around the house but would not tell her where. On the morning of the shooting, James demanded breakfast in bed, then refused to allow Frances back to bed. He called her a dog (which means the lowest of the low ). James then fell asleep and Frances shot and killed him. She said that she believed that James would kill her. Question 5: Should Frances be able to rely on self-defence in the circumstances of this case? 8

9 Case study six Paul was 55 years old. He lived alone in a remote farmhouse. One night, Michael and Brendan broke into the farmhouse by breaking a window on the ground floor. They were wearing gloves and carrying a torch and a large overnight bag. Paul heard the men approaching and armed himself with a shotgun and went downstairs. He shot Michael and Brendan. Paul s house had been broken into on several occasions and he was very dissatisfied that the police had not been able to catch the culprits. Paul said that because of past experience he believed that his house was vulnerable to burglary and that he was in genuine fear for his safety. Medical evidence was given at trial that Paul suffered from a paranoid personality disorder, which meant that he would have perceived a much greater danger to his physical safety than the average person. Question 6: Should evidence of Paul s state of mind be relevant to his claim that he acted in self-defence? For example, should the jury be allowed to take his prior experience of burglary into account in determining whether the force used was reasonable in the circumstances as Paul believed them to be? And/or should the jury be allowed to take his paranoid personality disorder into account? 9

10 Case study seven Aaron lived in an isolated farmhouse. He had been out cutting timber and then returned home to sit by the fire and watch television. During this time, Aaron was drinking whisky for five to six hours and smoking marijuana. At about 11pm, his dog started to bark at something near the back door where he was growing 10 or so plants of marijuana. He went to investigate and found that one of his plants had been taken and discovered two men hiding in the bushes. When Aaron shone his torch on the men, they stood up and came at him. Aaron turned and ran back into the farmhouse. The men followed him inside to the hall where Aaron hit one of the men with his torch. The other man jumped on him and both men fell to the floor. The intruders hit Aaron over the head with a heavy plate, which shattered and then kicked him repeatedly while he was lying on the ground. Aaron managed to escape to the lounge room where he kept a loaded rifle. He then shot the two men. In his police interview, it was apparent that Aaron was intoxicated and that the overwhelming emotion that he described in relation to the incident was one of fear. Question 7: Should evidence of Aaron s intoxication be relevant to his claim that he acted in self-defence? For example, should the jury be allowed to take it into account in determining whether the force used was reasonable in the circumstances as Aaron believed them to be? 10

11 Case study 8 Howard discovered three masked intruders ransacking his house when he and his sons returned home one evening. The burglars tied up and threatened to kill Howard and his sons. One son managed to escape and alert a neighbour. When help arrived, the intruders fled, but the men gave chase and caught one of them. They beat him, striking him with a cricket bat with such force that it broke in three places. The intruder was left with a permanent brain injury and Howard and his sons were charged with causing grievous bodily harm. In his police interview, Howard explained that his family feared for their lives and had acted in the heat of the moment in extreme circumstances of stress. Question 8: Should Howard and his sons be able to rely on self-defence? Should they be able to rely on a separate defence of defence of a dwelling house? Do different considerations apply where force is used to protect against intrusion into a dwelling house? For example, should the special status the home enjoys as a place of sanctuary justify the use of excessive force? Should the use of even lethal force be justified in appropriate circumstances? 11

OFFICER INVOLVED SHOOTING, Muskogee, Oklahoma, Jan. 17, 2015

OFFICER INVOLVED SHOOTING, Muskogee, Oklahoma, Jan. 17, 2015 Prepared for the debriefing of this incident, presented on January 22, 2015, at the City of Muskogee. Officer Chansey McMillin Officer Chansey