In Massey v R [2013] ACTCA 5 the appellant, convicted of murder in a street stabbing, contended that it was a misdirection for a trial judge to tell a jury that she could not rely on self-defence if she had been the original aggressor and her aggression had not ceased. Support for this was said to be drawn from obiter statements from Anandan v The Queen [2011] VSCA 413. The ACT Court of Appeal concluded that the directions to the jury on the issue were appropriate. A person confronted by the threat of violence need not wait until the threat matures into the actual use of force before taking steps to defend themselves. It follows that, where the accused is initially ‘spoiling for a fight’ this is something that the tribunal of fact will consider when deciding whether the accused did what they reasonably believed to be necessary in self-defence.

DPP v Zecevic

Generally, a person cannot claim self-defence in a fight they start. Some event must occur (ie. be found by the tribunal of fact to have occurred, or be left in doubt as to whether such an event occurred or not) to have turned the original aggressor into someone defending themselves, and vice versa. This is because it would be all too easy for an accused to say, “I did start the fight, but then once we got into it I started to lose the fight, and it was necessary for me to kill my opponent or else I genuinely feared they would do the same to me.” This cannot be the law.

Support for this proposition emerges from DPP v Zecevic (1987) 162 CLR 645. Since the High Court was aiming to definitively set out the test for self-defence in this country (and has been accepted as such ever since), it’s hard to think of weightier authority.

Here is what the High Court said about the issue, in the order that the judgments were reported:

Mason CJ [at 654]:

In the result I now consider that we should accept that the joint judgment of Wilson, Dawson and Toohey JJ correctly states the law of self-defence.

Wilson, Dawson and Toohey JJ [at 663]:

Where an accused raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.

And they continued later [at 664]:

The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist – where, eg. he is engaged in criminal behaviour of a violent kind – then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

Brennan J used some dramatic examples to illustrate the point (at 666):

Self-defence is not a charter to kill or assault those who have a duty or have a right to apply force to the accused. In the days of capital punishment, a condemned man could not have killed the hangman in self-defence. A person who is being lawfully arrested is not entitled to defend himself by using force to resist the arrest, even if he be innocent of the offence for which he is being arrested. A prisoner escaping from a gaol cannot justify or excuse shooting a warder though he believes on reasonable grounds that the warder was trying to shoot him and that it was necessary to shoot back to avoid being killed. A man who threatens deadly force to a person who attempts to rape his wife or child cannot be killed with impunity by the would-be rapist, even if he believes on reasonable grounds that he will otherwise be killed. The lawful application of force, even deadly force, does not confer on the person to whom it is applied any legal authority, justification or excuse to resist it.

Neither Deane J nor Gaudron J specifically addressed the issue.

One Lump or Two?

The emphasis in these sorts of cases has been on breaking an incident into two (or more) sub-events. If the accused was the initial aggressor but then there has been a minor break in proceedings, and the ‘fight’ resumes, the accused may then lay claim to self-defence. If the incident is one of continued aggression by the accused from go-to-whoah, there is little likelihood of a jury determining self-defence.

In Code states, self-defence is spelled out in terms similar to these (this example is lifted from the Commonwealth Criminal Code):

10.4 Self-defence

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass;

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if:

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

(Victoria, which is a bit of a half-way house – codifying some principles in relation to murder but leaving others in common law – reproduces (4)(a) and (b) in s 9AF of the Crimes Act 1958.)

Massey v R

In Massey v R [2012] ACTCA 5, an ACT case, it was argued that various errors had occurred that should vitiate the conviction. Ambitiously, the appellant asserted that willingness to fight was not continuing aggression.

Unsurprisingly, the Court of Appeal applied Zecevic. Higgins CJ [Refshauge CJ and Rares J agreeing] at 102:

The appellant argued that an original aggressor was entitled to act in self-defence even though his or her “original aggression” had not ended. She also contended that a person willingly engaged in a fight can act in self-defence.

His Honour correctly directed the jury to consider whether the appellant’s original aggression had ceased at the time she stabbed the deceased so as to enable her to form the belief, based on reasonable grounds, that her actions were necessary in self-defence: Zecevic at 663. Here, the initial phase of the confrontation involved either the appellant being seen as the initial aggressor or as a willing participant in the interaction she had with the deceased prior to the stabbing. The factual question was whether that aggression by the appellant (and willing participation in a fight is also aggression) had ceased before she decided to stab the deceased.

In R v Nguyen (1995) 36 NSWLR 397 at 407 Priestley JA, with whom Smart and Ireland JJ agreed, said that self-defence, as a justification or excuse, for killing had a starting point of a person who, not wanting to fight, was attacked or threatened with attack in a way that lead him or her to believe that self-defence was necessary to protect him or her from harm. He continued:

Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case. (emphasis added)

Nor did the need for such a qualification arise at the trial here. Here, there was a wide variety of accounts about the course of the altercation and whether it, indeed, had two phases, as the appellant suggested. The trial judge, accordingly, was concerned to ensure that, through his directions, the jury understood that they needed to consider whether the prosecution had proved, beyond reasonable doubt, that at the point in time and the stage of the fight, when she stabbed the deceased, the appellant did not act in self-defence. His Honour emphasised that the prosecution had to prove beyond reasonable doubt that the appellant’s aggression had not ended at the time of the stabbing. He directed the jury that the issue was whether the appellant had ended her aggression, and was defending herself against a new attack at the time she stabbed the deceased.

Anandan v R

The appellant had bolstered her argument using Anandan v The Queen. But interstate courts of appeal aren’t shying away from saying when they think the Victorian Court of Appeal is in error, it seems.

Higgins CJ [at 95, Refshauge ACJ and Rares J agreeing] repeated the contentious quote from the plurality in Zecevic:

Their Honours then addressed one particular evidentiary matter relevant to the answer to the question of self-defence, noting that in the Code States this matter was treated as raising a question of law, saying (at 663):

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe (1958) 100 CLR at 462–464 per Dixon CJ; Viro (1978) 141 CLR at 115–116 per Gibbs J. (emphasis added)

In Anandan v The Queen [2011] VSCA 413 at [18] Nettle JA said that in this paragraph, Wilson, Dawson and Toohey JJ spoke of a person being the “original aggressor” only in the sense of aggression involving the use of force, not other aggressive behaviour. Coghlan AJA, with whom Lasry AJA agreed on this aspect (at [93]), found that the summing up there created difficulty for the jury in evaluating what the trial judge had meant by her qualification that self-defence was not available to the accused there “unless their original aggression had ended”: Anandan v The Queen at [71]–[81]. Coghlan AJA appeared to accept that the initial aggression could consist of aggressive behaviour, such as occurred there, being the taking of two chairs from a table in a pub occupied by the victim and his friend. He held that the judge there needed to explain what she meant, in the factual context, by the impugned expression.

To the extent that Nettle JA held that the original aggression had to involve the use of force, we are of opinion that his Honour was wrong. A person confronted by the threat of violence need not wait until the threat matures into the actual use of force before taking steps to defend himself or herself. For example, a person confronted by another who, after saying that “I am going to kill you”, then reaches into his pocket, may well apprehend that the hand in the pocket will not be looking for a handkerchief but rather will be searching for a weapon. It is the threat of violence, not its actuality, that is necessary, although very often both will be perceived by the accused. Wilson, Dawson and Toohey JJ explained that the use of deadly force, if justifiable or excusable as self-defence, requires a threat that the user perceives calls for that response: Zecevic 162 CLR at 662. Indeed, as they explained in the first emphasised portion of their reasons quoted in [94] above, the original aggression can induce or provoke the assault from which the accused will claim the right to act in self-defence arises, even though no physical force occurred in the inducement or provocation.