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Gallagher and Corbell say it’s ok to use deadly force in self defence

By bundah - 5 August 2013 22

I came across a recent judgement by Justice Refshauge in a case where the accused,Joseph Shelvin was on trial for recklessly inflicting grievous bodily harm and assault occasioning actual bodily harm on Wayne Maloney. Shelvin was acquitted on the basis that the Crown had not disproved self-defence beyond reasonable doubt.

The incident occurred on 24 August 2008 at the Holy Grail Kingston where Shelvin was drinking with friends and was approached by Maloney who placed his arms around him in a friendly gesture hugging him.One of Shelvin’s friends,Damon Smith, reacted to the situation by grabbing Maloney by the back of his jacket and forcefully pulled Maloney and inadvertently Shelvin onto the floor.Shelvin then got up and assisted Maloney to his feet.Maloney then remonstrated in a ostensibly non-threatening manner with his hands at waist height to the front and side questioning why Smith was so aggressive. Shelvin then responded by forcefully pushing Maloney in the chest and immediately thereafter punched Maloney in the head with substantial force. Maloney fell backwards and his head impacted with the tiled floor causing significant injury which later required the insertion of a metal plate in his skull.

The decision by Refshauge to find Shelvin not guilty of the charges prompted me to email Attorney General Corbell drawing to his attention that had Maloney died as a result of the assault then based on Refshauge’s reasoning Shelvin would have been entitled to be acquitted of a potential murder charge. I referred to the decisions in James Cook, Mauricio Rao, Russell Field and Cameron Anderson’s killer which had similarities to case studies where excessive self-defence was judged to have occurred.Corbell’s response was to claim that if the conduct of a defendant was not a reasonable response to the circumstances they found themselves in then they may be found guilty of murder. My response to Corbell was to point to the High Court decision in Zecevic(1987) which Chief Justice Higgins applied in his judgements in Rao,Field and Anderson’s killer.I then received a response from Chief Minister Gallagher who said that it was her understanding that the introduction of excessive self defence would not have addressed my concerns and that the ACT was not considering adopting the partial defence to murder at this time.

Obviously, I strongly disagree and here’s why: In the High Court decision in Zecevic(1987) which became common law in self defence, the majority by 5 to 2 said that the question to be asked in the end is quite simple, it is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what they did. If they had that belief and there were reasonable grounds for it then they were entitled to an acquittal. Further to this they also indicated that the issue of self defence should be approached in a practical manner and without undue nicety,giving proper weight to the predicament of the accused which may have afforded little,if any,opportunity for calm deliberation or detached reflection.The new formulation effectively abolished the partial defence of excessive self defence and it’s worth noting that Deane J strongly dissented in Zecevic believing that the abolition of the partial defence was unjust and that it was wrong to retrospectively abolish a defence. The backflip from the previous decision in Viro(1978), which was considered too complicated, meant that Higgins and Crispin,in applying the new formulation, could justifiably acquit those I refer to above. The simple reality is that the Crown didn’t stand a chance of disproving self defence given the new formulation.

In 1997 South Australia amended their self defence laws to include excessive self defence. In 2002 NSW also reintroduced excessive self defence. The provision is as follows: if a person uses force that involves the infliction of death, and the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary to defend themselves then they are guilty of manslaughter.Victoria introduced defensive homicide in 2005,which while similar to excessive self defence,was introduced to reduce the offence of murder to manslaughter in cases where women were subjected to continued physical abuse from their partners who they killed fearing for their lives. Unfortunately since it was introduced only two of the 19 convictions for defensive homicide have involved female defendants which has prompted the AG to introduce amendments to the legislation.In 2008 Western Australia removed provocation as a partial defence and introduced excessive self defence.

For the benefit of Gallagher and Corbell I will briefly detail what occurred in R v Cook and why he was IMO guilty of excessive self defence. I should firstly point out that Cook was arraigned before Gray J on a single count of murder and entered a plea of manslaughter which the Crown, rightfully, accepted. The proceedings were listed before Higgins for sentencing who rejected the plea finding the facts didn’t support manslaughter ie. he realised that under the new formulation Cook would be acquitted on the basis of self defence so he disqualified himself and handed the baton to Crispin.

The brief facts are as follows: In December 2003 James Cook who lived opposite Daniel Beck at the Southside Caravan Park socialised with Beck during which time they consumed a significant amount of alcohol. Shortly after their drinking session Beck provoked Cook into a physical confrontation during which time Cook got the upper hand while they were wrestling and then strangled Beck to death. Cook actually said that he continued to choke Beck for almost 30 seconds after Beck went limp. There is absolutely no doubt in my mind that while it’s clear that Cook was defending himself he simply took it too far and his response was excessive. Unsurprisingly Crispin determined that the Crown did not disprove that he acted in self defence, beyond reasonable doubt, so he was acquitted.

The question, therefore, that the Chief Minister and the Attorney General need to ask themselves is whether they still consider excessive self defence unnecessary given the abovementioned circumstances and the potential for this type of scenario to rear its ugly head, yet again. While anyone accused of murder would now be tried by a judge and jury if the accused claimed that he or she acted in self defence the jury would still be bound to consider its verdict according to the principles in the Zecevic formulation.

There is, of course, the other issue whereby it has taken almost 5 years to get a decision in the Shevlin case. So I think it’s appropriate to leave you with the rather extraordinary language used by recently retired High Court Justice Dyson Heydon “A party which has a duty to assist the court in achieving certain objectives fails to do so. A court which has a duty to achieve those objectives does not achieve them. The torpid languor of one hand washes the drowsy procrastination of the other.”

Rather damning, don’t you think Attorney General?

http://www.austlii.edu.au/au/cases/cth/HCA/1987/26.html

http://www.courts.act.gov.au/supreme/judgment/view/6661/title/r-v-shevlin

http://www.courts.act.gov.au/supreme/judgment/view/2805/title/r-v-cook

What’s Your opinion?


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22 Responses to
Gallagher and Corbell say it’s ok to use deadly force in self defence
1
harvyk1 11:13 am
05 Aug 13
#

So just so I’m clear, Person 1 comes up to Person 2 and does a friendly gesture, Person 3 then overreacts and takes down Person 1 and accidentally Person 2. Person 2 then helps Person 1 up. Person 1 then acts like a dick so Person 2 pushes Person 1 over again. Is this what happened?

Now the way I see it is the attacker has made an conscious decision to infringe on my safety. On making that decision they should no longer be protected by any law until the threat which they pose has been removed. Now thanks to years of martial arts training I could easy do a side kick a punch or one of the numerous other techniques which I have learnt over the years to neutralise the attacker. Should the attacker suffer any permanent injury or be killed in my response well they where the one to make the active decisions to put us into that dangerous position.

In my mind the self defense argument ends as soon as the attacker is on the ground and is no longer a threat to me in any way. So if for instance, my response say a side kick to the abdomen is enough to knock someone down and wind them, then they are no longer a threat, any further action on my part is no longer self defense.

So the question becomes is simply acting like a dick enough to warrant self defense? Whilst it depends on context In some ways yes. I know a few people who get all upperty about been pushed over but that’s it, I also know a few people who are likely to get really aggressive, and in those instances sometimes the best defense is a good offense. Whilst I don’t expect that anyone was expecting the outcome of a head injury, I would be happy to put that down as an accident of the situation rather than the intent.

Of course the moral of the story is don’t be a dick whilst drinking.

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2
DrKoresh 12:47 pm
05 Aug 13
#

harvyk1 said :

So just so I’m clear, Person 1 comes up to Person 2 and does a friendly gesture, Person 3 then overreacts and takes down Person 1 and accidentally Person 2. Person 2 then helps Person 1 up. Person 1 then acts like a dick so Person 2 pushes Person 1 over again. Is this what happened?

Now the way I see it is the attacker has made an conscious decision to infringe on my safety. On making that decision they should no longer be protected by any law until the threat which they pose has been removed. Now thanks to years of martial arts training I could easy do a side kick a punch or one of the numerous other techniques which I have learnt over the years to neutralise the attacker. Should the attacker suffer any permanent injury or be killed in my response well they where the one to make the active decisions to put us into that dangerous position.

In my mind the self defense argument ends as soon as the attacker is on the ground and is no longer a threat to me in any way. So if for instance, my response say a side kick to the abdomen is enough to knock someone down and wind them, then they are no longer a threat, any further action on my part is no longer self defense.

So the question becomes is simply acting like a dick enough to warrant self defense? Whilst it depends on context In some ways yes. I know a few people who get all upperty about been pushed over but that’s it, I also know a few people who are likely to get really aggressive, and in those instances sometimes the best defense is a good offense. Whilst I don’t expect that anyone was expecting the outcome of a head injury, I would be happy to put that down as an accident of the situation rather than the intent.

Of course the moral of the story is don’t be a dick whilst drinking.

lol. Well hello, Mr. Bruce Lee :O

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3
bundah 2:36 pm
05 Aug 13
#

harvyk1 said :

So just so I’m clear, Person 1 comes up to Person 2 and does a friendly gesture, Person 3 then overreacts and takes down Person 1 and accidentally Person 2. Person 2 then helps Person 1 up. Person 1 then acts like a dick so Person 2 pushes Person 1 over again. Is this what happened?

Now the way I see it is the attacker has made an conscious decision to infringe on my safety. On making that decision they should no longer be protected by any law until the threat which they pose has been removed. Now thanks to years of martial arts training I could easy do a side kick a punch or one of the numerous other techniques which I have learnt over the years to neutralise the attacker. Should the attacker suffer any permanent injury or be killed in my response well they where the one to make the active decisions to put us into that dangerous position.

In my mind the self defense argument ends as soon as the attacker is on the ground and is no longer a threat to me in any way. So if for instance, my response say a side kick to the abdomen is enough to knock someone down and wind them, then they are no longer a threat, any further action on my part is no longer self defense.

So the question becomes is simply acting like a dick enough to warrant self defense? Whilst it depends on context In some ways yes. I know a few people who get all upperty about been pushed over but that’s it, I also know a few people who are likely to get really aggressive, and in those instances sometimes the best defense is a good offense. Whilst I don’t expect that anyone was expecting the outcome of a head injury, I would be happy to put that down as an accident of the situation rather than the intent.

Of course the moral of the story is don’t be a dick whilst drinking.

There’s no question that consuming excessive amounts of alcohol turns many into obnoxious farktards. The question here is about proportion and there is no evidence that Maloney had any intention of swinging punches so going on the offensive as Shelvin did by punching Maloney in the head with substantial force was imo excessive and premature.

When i practised martial arts, many moons ago, the very clear message that was taught was discipline and restraint and only respond with force if one was being physically attacked.

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4
bundah 8:45 am
06 Aug 13
#

Do rioters have an opinion they wish to express?

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5
caf 9:29 am
06 Aug 13
#

I thought that self-defence was an affirmative defence – that the onus was on the defendant to prove beyond a reasonable doubt that they had used reasonable and appropriate force to defend themselves or another.

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6
bundah 9:35 am
06 Aug 13
#

caf said :

I thought that self-defence was an affirmative defence – that the onus was on the defendant to prove beyond a reasonable doubt that they had used reasonable and appropriate force to defend themselves or another.

Alas no, the onus is on the Crown to prove beyond reasonable doubt that the accused didn’t act in self defence and proportionality is only one aspect that needs to be considered.

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7
chewy14 9:49 am
06 Aug 13
#

caf said :

I thought that self-defence was an affirmative defence – that the onus was on the defendant to prove beyond a reasonable doubt that they had used reasonable and appropriate force to defend themselves or another.

Not a lawyer but I thought self defence was simply a person reasonably believing what they did was necessary to prevent injury or death to themselves.

Considering that there have been a number of similar not guilty verdicts from our courts over the last few years, this result doesn’t surprise me. In fact it would be at the lower end (less controversial) when comparing the facts of some of the other cases IMO.

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8
bundah 10:10 am
06 Aug 13
#

chewy14 said :

caf said :

I thought that self-defence was an affirmative defence – that the onus was on the defendant to prove beyond a reasonable doubt that they had used reasonable and appropriate force to defend themselves or another.

Not a lawyer but I thought self defence was simply a person reasonably believing what they did was necessary to prevent injury or death to themselves.

Considering that there have been a number of similar not guilty verdicts from our courts over the last few years, this result doesn’t surprise me. In fact it would be at the lower end (less controversial) when comparing the facts of some of the other cases IMO.

Except that those who killed others in self defence would have been found guilty of manslaughter in NSW,SA,VIC,WA on the basis of excessive self defence whereas they were acquitted in the ACT.

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9
DrKoresh 10:30 am
06 Aug 13
#

bundah said :

chewy14 said :

caf said :

I thought that self-defence was an affirmative defence – that the onus was on the defendant to prove beyond a reasonable doubt that they had used reasonable and appropriate force to defend themselves or another.

Not a lawyer but I thought self defence was simply a person reasonably believing what they did was necessary to prevent injury or death to themselves.

Considering that there have been a number of similar not guilty verdicts from our courts over the last few years, this result doesn’t surprise me. In fact it would be at the lower end (less controversial) when comparing the facts of some of the other cases IMO.

Except that those who killed others in self defence would have been found guilty of manslaughter in NSW,SA,VIC,WA on the basis of excessive self defence whereas they were acquitted in the ACT.

Why does that upset you so much? I like the idea of self-defense, and wouldn’t want to go down on manslaughter charges for defending myself against an attacker. Does this all go back to the Anderson case for you? Did you know the guy?

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10
vg 11:02 am
06 Aug 13
#

You can’t have excessive self-defence. No such animal. You are either found to have acted in self-defence or you are found to have exceeded reasonableness and committed an assault, murder or manslaughter, whatever the end result the charge justifies.

If you say you are going to slap me with an open hand and I shoot you that is not self-defence. If you say you’re going to slap me with an open hand and I push you away while you’re in the process of it, on a simplistic basis, that’s self-defence. Anything other than self-defence is an assault. The defences to assault can be expressed in a simple abbreviation….CAMELS

Consent
Amicable contest
Misadventure or accident
Execution of duty
Lawful correction; and
Self-Defence

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11
chewy14 11:34 am
06 Aug 13
#

vg said :

You can’t have excessive self-defence. No such animal. You are either found to have acted in self-defence or you are found to have exceeded reasonableness and committed an assault, murder or manslaughter, whatever the end result the charge justifies.

If you say you are going to slap me with an open hand and I shoot you that is not self-defence. If you say you’re going to slap me with an open hand and I push you away while you’re in the process of it, on a simplistic basis, that’s self-defence. Anything other than self-defence is an assault. The defences to assault can be expressed in a simple abbreviation….CAMELS

Consent
Amicable contest
Misadventure or accident
Execution of duty
Lawful correction; and
Self-Defence

But isn’t that the OP’s point?

If you raise your hand to slap me and I shoot you because I was in reasonable fear then I would be acquitted as per the recent cases. (i’ll admit that i’m still not sure about this but that seems to be the way the law is being interpreted.)

Is my shooting you a proportional response to the actual danger presented and should I be found guilty of something?

For me it seems to come down to the fact that it is only the defendant’s belief of danger that is taken into account rather than the actual danger.

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12
caf 1:24 pm
06 Aug 13
#

DrKoresh said :

bundah said :

Except that those who killed others in self defence would have been found guilty of manslaughter in NSW,SA,VIC,WA on the basis of excessive self defence whereas they were acquitted in the ACT.

Why does that upset you so much? I like the idea of self-defense, and wouldn’t want to go down on manslaughter charges for defending myself against an attacker. Does this all go back to the Anderson case for you? Did you know the guy?

Well, you’d only go down for manslaughter if your response was excessive.

This works both ways, you know – if someone attacked you and you responded with a counter-attack, then they would also be able to claim self-defence from that point. If they then escalated to lethal force, would you be happy that if they could only be done for the initial assault?

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13
p1 2:00 pm
06 Aug 13
#

caf said :

DrKoresh said :

bundah said :

Except that those who killed others in self defence would have been found guilty of manslaughter in NSW,SA,VIC,WA on the basis of excessive self defence whereas they were acquitted in the ACT.

Why does that upset you so much? I like the idea of self-defense, and wouldn’t want to go down on manslaughter charges for defending myself against an attacker. Does this all go back to the Anderson case for you? Did you know the guy?

Well, you’d only go down for manslaughter if your response was excessive.

This works both ways, you know – if someone attacked you and you responded with a counter-attack, then they would also be able to claim self-defence from that point. If they then escalated to lethal force, would you be happy that if they could only be done for the initial assault?

The OP seems to be at odds with you here vg – suggesting that if you can prove that self defence caused you to act (or rather, that the Crown can’t disprove it), then you would be acquitted regardless of what action your self defence might take (ie, they slap you, you shoot them).

Seems to me like the OP has detected something of a loop hole in the current law. I would like to think that people qualified to discuss this will, and if changes need to happen they will. Although I won’t hold my breath either way.

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14
p1 2:03 pm
06 Aug 13
#

p1 said :

The OP seems to be at odds with you here vg….

Dahh! Caf, I meant, obviously.

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15
caf 3:06 pm
06 Aug 13
#

p1 said :

caf said :

DrKoresh said :

bundah said :

Except that those who killed others in self defence would have been found guilty of manslaughter in NSW,SA,VIC,WA on the basis of excessive self defence whereas they were acquitted in the ACT.

Why does that upset you so much? I like the idea of self-defense, and wouldn’t want to go down on manslaughter charges for defending myself against an attacker. Does this all go back to the Anderson case for you? Did you know the guy?

Well, you’d only go down for manslaughter if your response was excessive.

This works both ways, you know – if someone attacked you and you responded with a counter-attack, then they would also be able to claim self-defence from that point. If they then escalated to lethal force, would you be happy that if they could only be done for the initial assault?

The OP seems to be at odds with you here vg – suggesting that if you can prove that self defence caused you to act (or rather, that the Crown can’t disprove it), then you would be acquitted regardless of what action your self defence might take (ie, they slap you, you shoot them).

Seems to me like the OP has detected something of a loop hole in the current law. I would like to think that people qualified to discuss this will, and if changes need to happen they will. Although I won’t hold my breath either way.

Dr K and I were discussing the hypothetical where the “excessive self-defence” doctrine was adopted here, I believe. It was vg who mentioned the slap scenario, perhaps you meant to respond to him.

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