Case: Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26 ; (1987) 162 CLR 645
Outcome: discussed
Zecevic v Director of Public Prosecutions (Vict.) [1987] HCA 26 ; (1987) 162 CLR 645 Wilson, Dawson and Toohey JJ discussed the origins of the modern law of self defence. They observed that such defence arose out of a context in which two kinds of defence to homicide, a defence of 'justification' and one of 'excuse', were available. The consequences of each defence were distinct, as their Honours considered at 657-658: Justifiable homicide carried with it commendation rather than blame and accordingly entitled the accused to total acquittal, entailing no forfeiture and requiring no pardon... Excusable homicide, on the other hand, was not entirely without blame and merely excused rather than acquitted, requiring, at first, a pardon and involving, for a somewhat longer period, forfeiture. Such distinctions no longer exist, but this context led their honours to find (at 658) that self defence, ' as we now know it, was essentially exculpatory in origin '. The difference between the defences considered above demonstrates that, at the common law at least, one might be said to a have contravened the law even if a defence to a charge were available. There can be no doubt that the Criminal Code was intended to provide a principled and logical analytical regime for Commonwealth criminal law and thus substantially remove inconsistencies found in the common law. For example, the defence of necessity at common law did not apply to murder: see R v Dudley and Stephens (1884) 14 QBD 273. However, the defence of sudden or extraordinary emergency is not so limited in the Criminal Code and it applies to all Commonwealth offences. The Criminal Code codified a basis for criminal responsibility distinct from that at common law as discussed in R v Oblach [2005] NSWCCA 440 ; (2005) 65 NSWLR 75. Spigelman CJ said of the structure of the Criminal Code (at [28]): Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 [General Principles of Criminal Responsibility] and the absence or failure of the elements in Pt 2.3 [Circumstances in which there is no Criminal Responsibility]. This structure differs from the position at common law in which it is appropriate to treat certain matters as "defences", for example, self defence is "exculpatory". ( Zecevic (at 658-659)). [Emphasis added] In an article published in Judicial Review entitled ' The Commonwealth Criminal Code : An Introduction to the General Principle s' the author Ian Leader-Elliot wrote:- Proof of the necessary physical and fault elements does not, of itself, establish guilt. Though all elements of an offence are established against a defendant, guilt may be defeated by reliance on a defence. Chapter 2 [of the Criminal Code ] adopts a binary structure in which "responsibility" is a compound resulting from proof of all elements of the offence, combined with disproof or failure of all defences that are open on the evidence... There are, it should be said, significant departures from the common law in the articulation of a number of offences. [(2002) 5 Judicial Review 4 at 301] On such analysis, if the requirements of s 10.3 are satisfied it must follow that there can be no criminal responsibility and therefore no offence.