The Institute comments that
In September 2011, the Director of Public Prosecutions wrote to the Attorney-General to raise concerns that the current Tasmanian law on self-defence, as contained in s 46 of the Criminal Code (Tas), was too lenient and was out of step with modern standards. In November 2012, the Attorney- General requested that the Tasmania Law Reform Institute conduct a far-reaching examination of the law in Tasmania relating to self-defence and provide advice as to whether the law should be amended.
In relation to self-defence, this Issues Paper considers whether the current law of self-defence in Tasmania should be retained or whether any amendments should be made to the existing law. It considers the circumstances in which a person is lawfully entitled to use force (including lethal force) in defence of themselves or another person. In cases where the accused’s perception of the situation corresponds with the actual situation, this may appear a relatively intuitive and straightforward assessment. However, greater difficulties arise when there is a difference between the actual circumstances and the circumstances as the accused saw them. There is scope for considerable debate about the extent to which a person can rely on a mistaken belief for the purposes of self-defence, and whether the reason for the mistake has a role to play in making this assessment.
This is the particular concern addressed in this Paper. It considers whether a person should be able to rely on:
- a mistake that results from a delusion arising from a mental illness;
- a mistake that was a result of psychological factors personal to the accused that meant that they were more sensitive to threats of danger than the normal person; or
- a mistake that arises from self-induced intoxication.
The Paper also considers whether it is desirable to ensure consistency between the defence of selfdefence and other defences such as prevention of certain crimes and defence of dwelling-house. To this end, it examines issues that arise in relation to defence of property, and the special status the home enjoys as a place of sanctuary. It considers whether the defences of prevention of crime in s 39 and defence of dwelling-house in s 40 of the Criminal Code might more appropriately be dealt with in a consolidated defence provision or whether the defences involve unique considerations that warrant a stand-alone provision.The Institute's questions are
Q1 Should the current law of self-defence contained in the Criminal Code (Tas) s 46 be amended to introduce an additional/different requirement of reasonableness or should the current formulation be retained? Please provide reasons.
Q2 If the current test for self-defence is retained, should the Criminal Code s 46 be amended to reflect the wording of the Model Criminal Code or should the current wording be retained? Please provide reasons.
Q3 If the Criminal Code (Tas) s 46 is amended to include a requirement that the accused’s perception of the circumstances be based on reasonable grounds, which model should be adopted:
(a) a model based on the common law position;
(b) a model based on the Northern Territory (non-Schedule 1 offences) position;
(c) a model based on the Western Australian position;
(d) a model based on the Queensland and former Tasmanian position;
(e) another model?
Q4 Should all evidence of any abnormality in an accused’s mental condition be excluded from consideration in cases of self-defence under the Criminal Code (Tas) s 46?
Q5 Should the Criminal Code (Tas) be amended to provide that evidence of delusions insufficient to support the insanity cannot be relied on for the purposes of self-defence?
Q6 Should the Criminal Code (Tas) be amended to provide that evidence of delusions can be relied on for the purposes of self-defence, with a successful argument of self-defence resulting in a qualified acquittal under s 16(3) (that is, not guilty on the grounds of insanity)?
Q7 Should evidence of mental illness be admissible for the purposes of self-defence and, if successful, result in a complete acquittal? In the case of delusions, should evidence of delusions insufficient to support the insanity defence go the issue of self-defence?
Q8 Should evidence of intoxication be considered for the purposes of self-defence? In particular should it be considered:
(a) for the purpose of assessing the accused’s belief in the need for self-defence? This would mean that the accused’s state of intoxication could be taken into account for the purposes of determining whether the accused had a belief in the need for self-defence.
(b) for the purpose of determining the circumstances as the accused believes them to be? This would mean that the accused’s use of force would be assessed on the basis of the circumstances as the accused believed them to be, even if the accused’s perception of circumstances arose from a drunken or drug-induced mistake.
(c) as a physical characteristic of the accused in determining whether the response was reasonable? This would mean that the accused could rely on their reduced capacity to respond attributable to intoxication in assessing whether the response was reasonable.
(d) if a requirement of reasonableness is inserted in relation to the accused’s belief in the need to use defensive force (see Q1), for the purposes of assessing whether there were reasonable grounds for the accused’s belief or for the purposes of assessing if the accused’s belief was reasonable in the circumstances?
This would mean that the assessment of the reasonableness of the accused’s belief in relation to the necessity of using defensive force or the assessment of whether there were reasonable grounds for the accused’s belief would be made on the basis of the circumstances of the particular accused, including the accused’s state of intoxication.
Q9 Should intoxication (including drug induced psychosis that does not amount to a mental illness) that is caused by methamphetamine use be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from intoxication arising from other causes?
Q10 Should drug-induced psychosis that falls within the definition of a mental disease be treated differently for the purposes of self-defence in the Criminal Code (Tas) s 46 from mental illness arising from other causes?
Q11 If restrictions are placed on reliance by an offender on an intoxicated mistake for the purposes of self-defence, should an exception be made for offenders in the case of intoxication that is not self-induced?
Q12 Should reforms be made to the criminal law in Tasmania to facilitate the reception of evidence of family violence in relation to the defence of self-defence?
Q13 Should reforms be made to the criminal law in Tasmania to specify that imminence is not necessary where self-defence is raised in the context of family violence?
Q14 Should reforms be made to the criminal law in Tasmania to provide for jury direction where self-defence is raised in the context of family violence?
Q15 Should a partial defence of mistaken self-defence be introduced in Tasmania if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is mistaken self-defence a matter that can be appropriately dealt with as part of the sentencing process?
Q16 Should a partial defence of excessive self-defence be introduced in Tasmania? If so, should it be introduced only if the Criminal Code (Tas) s 46 is amended by the insertion of a requirement of reasonableness in relation to the accused’s perception of the circumstances? Or is excessive self-defence a matter that can be appropriately dealt with as part of the sentencing process?
Q17 Should a partial defence of killing for self-preservation in a domestic relationship be introduced in Tasmania? If so, how should the defence be formulated?
Q18 Should a partial defence of diminished responsibility be introduced in Tasmania? Or should diminished responsibility be a matter that is taken into account in sentencing?
Q19 Should the defences of prevention of crime (Criminal Code (Tas) s 39) and/or defence of dwelling-house (Criminal Code (Tas) s 40) be made consistent with the defence of self-defence so as to contain the same mix of subjective and objective requirements?
Q20 If consistency is desirable, how should this be achieved? Should the defence be consolidated in a single provision or should separate provisions be retained?
Q21 Should the defence of defence of dwelling house sanction the use of even lethal force?
