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Module 7 · Defences

Self-defence is examined every year from 2022 to 2025, in both directions. Duress appears in 2023 and 2025, emergency in 2021, intoxication throughout to 2024. The examined skills are defence selection and a clean statement of the onus. Every defence is a twist on the offence: the offence stands unless the defence untwists it, and s 322I fixes who must untwist and to what standard.

The three defences are confused with each other more than any other doctrines in the subject. This is because all three respond to pressure. Hold three signatures. Self defence wards off an unjust threat with defensive force against the attacker. Duress answers a human demand backed by a threat of harm by committing the demanded offence. Emergency answers a peril arising from circumstances rather than from a demand, usually by harming an innocent person or their property.

Cases at a glance

Selection and onus

Really serious injury in these murder thresholds includes serious sexual assault (s 322H), so a threatened serious sexual assault opens all three defences on a murder charge.

The three signatures on the facts

Ask first at whom the conduct was directed and why. The demand is the tell for duress, and danger without a demand or an attacker is emergency. Selection comes first: if the structure points to self defence, running emergency earns nothing however well its elements are argued.

Onus discipline

State the onus in the same words every time (s 322I). The evidential burden is not a burden of proof: the accused proves nothing and merely points to evidence capable of raising the defence, which may come from the prosecution case itself. Disproof of any one element beyond reasonable doubt defeats the defence, so identify the element the prosecution will attack. Writing that the accused must prove self defence on the balance of probabilities inverts s 322I. The one exception is mental impairment, which the accused proves (M8).

Self-defence

• Proportionality is no longer a separate requirement and failure to retreat is not a bar; both are factors in the two limbs (Zecevic).
• The scope is wider than defence of the person. The note to s 322K includes defence of the accused or another person, preventing or stopping the unlawful deprivation of the liberty of the accused or another person, and protection of property. For murder the defence remains available only where the accused believed the threat was of death or really serious injury (s 322K(3)), so force used to protect property alone cannot answer a murder charge.
• Family violence: s 322M(1) provides that, without limiting s 322K, in the context of family violence an accused may be acting in self-defence even if they are ‘responding to harm that is not immediate’ or their ‘response involves the use of force in excess of the force involved in the harm or threatened harm’ (s 322M(1), quoted W&W 14.23 n2). Sections 322J and 322M(2) direct that evidence to both limbs of s 322K, the belief in necessity and the reasonableness of the response (charge book 8.1 [48], [72]). Family violence is not a separate defence, and these provisions ‘do not amount to a statutory defence of “battered woman syndrome”’ (W&W 14.23 n2); the argument runs inside the elements of self-defence.

Limb one, the belief in necessity

The first limb is subjective. A genuine belief that the conduct was necessary satisfies it even if mistaken or formed while intoxicated (s 322K(2)(a)), departing from the common law, which required the belief to be held on reasonable grounds (Zecevic). An accused grabbed from behind in the dark who strikes a person who was in fact harmless can still satisfy the limb. This is because it asks what the accused believed rather than what was true. The limb is fought by testing the belief against the specific acts done rather than the decision to act: believing that some intervention was necessary is not the same as believing that this blow or the third stamp was necessary (s 322K(2)(a)).

Limb two, the reasonable response

The second limb is objective but judged on the circumstances as the accused perceived them (s 322K(2)(b); Katarzynski (NSW)). Stand in the accused's shoes and ask whether the response was reasonable, without judging it too finely (Zecevic). Proportionality is no longer a separate requirement and failure to retreat is not a bar; both are factors inside the limbs (Zecevic). The usual battleground is continuation: force that was reasonable while the threat was live becomes unreasonable once the attacker is down.

Aggressors and known lawful conduct

Being the original aggressor is not an automatic bar (Zecevic; Edmunds at [203]–[206]), but nor does starting the fight license everything that follows: continuing aggression makes belief and reasonableness hard to sustain, so the argument runs inside the two limbs rather than as a threshold rule. The cleanest frame is two separate attacks. Ask whether the original aggression had ceased before the response now being judged, looking for something that ended it, such as declining further conflict or quitting the use of force. If it had, and the other side began a fresh attack, the defence runs on ordinary terms; if not, the accused acts as an aggressor in pursuit of the original design (Zecevic). Section 322L is answered before the two limbs, and its two conditions are cumulative. Self defence is excluded only where the conduct responded to was lawful and the accused knew it was lawful, so a reasonable possibility on either limb leaves s 322L unengaged (s 322L; charge book 8.1 [49]–[52]; Edmunds at [177], [179]–[181]). An accused who did not know the conduct was lawful, as where a plain clothes officer grabs them without a word, is outside s 322L; so is an accused who responded to conduct that was not in fact lawful, whatever the accused believed about it.

Duress and emergency

• Duress is available on a murder charge only where the accused believes the threat is to inflict death or really serious injury. The threshold is purely subjective: what matters is the accused's belief about the threat, not the threat's objective character (s 322O(4); charge book 8.9 [13], [87]–[89]; W&W 14.55 n1). Characteristics such as sex, maturity, the history of the relationship and family violence enter the three reasonable-belief elements (DPP v Parker (a Pseudonym) [2016] VSCA 101; Rowan v The King [2022] VSCA 236 (Vic CA); s 322P; charge book 8.9 [19], [21]–[23]), and self-induced intoxication never does (s 322T). None of them enters element (4).

The duress checklist walked

Duress has five elements and each can be fought. Elements one and two are reasonable beliefs that a threat of harm has been made and that it will be carried out unless an offence is committed (s 322O(2)(a)(i)). That standard is stricter than the genuine belief that opens self defence, so an honest but unreasonable fear does not carry it. The threat may be directed at a person other than the accused: at common law it extended to any human being, and nothing in s 322O narrows the class (charge book 8.9 [36], citing R v Hurley [1967] VR 526 at 543 and R v Harding [1976] VR 129 at 169). In DPP v Parker (a Pseudonym) the threat was to kill the accused and members of her family, so it shows a threat aimed at the accused and at others together, not at a third party alone (W&W 14.55 n2). The element is the belief, so a reasonable belief suffices even if no threat was made (s 322O(2)(a)). A threat may be unstated and inferred from the whole of the circumstances, including the history of the relationship: a pattern of pervasive violence, intimidation, control and abuse can raise a reasonable possibility that an express or implicit demand carried with it the implication that serious violence would follow a refusal (The King v Anna Rowan (A Pseudonym) (2024) 278 CLR 470; R v Rowan [2024] HCA 9 at [62]; charge book 8.9 [31]–[33]), though that reasoning imports no principle of duress of circumstances. Whether the threatener must have nominated the particular offence is contested, and neither view may be stated as settled. W&W 14.26 reads the reference to an offence rather than the offence as removing any stipulation requirement; the Charge Book takes the change in wording not to depart from the common-law nomination requirement (8.9 [41]); Edelman J in Rowan at [97]–[111] would treat any demand as going only to reasonable response, which the plurality did not adopt (8.9 [42]). Flag the contest; do not resolve it. Element three is that committing the offence was the only reasonable way to avoid the harm (s 322O(2)(a)(ii)). Test any alternative against the threat, not in the abstract: an escape or a report to police defeats the element only where it would actually nullify the threat, and in family violence contexts a continuing threat can survive both (s 322P; charge book 8.9 [47]). Element four is that the conduct in fact was a reasonable response (s 322O(2)(b)), and it is entirely objective: the question is not whether the accused reasonably believed the response was reasonable, but whether it was, on an entirely objective assessment (W&W 14.55 n1; charge book 8.9 [54], [57]–[58]). Element five is the voluntary association bar (s 322O(3)), on which the Charge Book records that Victorian courts have not yet ruled (8.9 [86]). The reasonable belief standard has a set formulation: ask whether a reasonable person possessing the personal characteristics of the accused that might have affected the accused's appreciation of the circumstances might have held the belief (DPP v Parker (a Pseudonym) [2016] VSCA 101, applied to s 322O by analogy from the repealed s 9AG(2): charge book 8.9 [18]–[19]). It governs elements one to three only, not element four. The Charge Book sets Parker [40] against Parker [53] as difficult to reconcile on whether family violence evidence bears on reasonableness of response, resolving it so that evidence going to the accused's perception of the threat is relevant while the effect of family violence on the accused's own capacity to resist is not (8.9 [75]–[79]).

The emergency checklist walked

Emergency mirrors duress with a circumstance in place of a threatener, and its usual battleground is the only reasonable way element (s 322R). A genuine emergency does not excuse whatever response followed, but nor does it fail automatically. The nearest authorities are interstate decisions on common law necessity, abolished in Victoria in 2014, so they are persuasive only. In Re Appeal of White (1987) 9 NSWLR 427 (NSW) the defence succeeded on facts of speeding while taking a sick son to a doctor, Shadbolt DCJ holding the breach was not so gross as to create another danger together with the existing one (W&W 14.36 n3). In Bayley v Police (SA) (2007) 49 MVR 376 (SA) it was available in principle on dangerous driving charges, but the accused's actions were reckless, extreme and disproportionate (W&W 14.36 n4). By way of hypothetical, an accused speeding a sick child to hospital who passed open hospitals and waved away an offer to call an ambulance had reasonable alternatives, so the element would fail even though the emergency was real; that is a hypothetical, not a decided case. The reasonable belief standard carries the duress formulation (DPP v Parker (a Pseudonym) [2016] VSCA 101). No Victorian appellate decision applying s 322R is carried by either governing source.

The three defences compared

The murder thresholds and the s 322I onus sit in the selection table above.

Intoxication

Routing the intoxication

Intoxication is a modifier rather than a defence, and the whole skill is routing it. If it is said to show that the accused did not act voluntarily or did not form the intention, the route is the common law in O'Connor, inside the offence elements under the prosecution's ordinary burden. If it is said to explain a mistake or a reaction inside self defence, duress or emergency, the route is s 322T. Section 322T has no work where no defence is raised, and O'Connor none on the reasonableness limbs. Modest drinking rarely raises a real doubt that intent was formed, and a drunken intent is still an intent (O'Connor).

When intoxication is not self induced

Section 322T(5) gives the full list. Intoxication is not self induced where it came about involuntarily, or because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or from a prescription drug used in accordance with the directions of the person who prescribed it, or from a legal non prescription drug used for a purpose, and at the dosage level, recommended by the manufacturer (s 322T(5)). Where it is not self induced the standard changes rather than disappears: regard must be had to a reasonable person intoxicated to the same extent as the accused (s 322T(4)). One rule then closes the compliant use routes. Even prescription compliant or dosage compliant use is self induced where the person knew, or had reason to believe, that the drug would significantly impair their judgment or control (s 322T(6)). Taking triple the prescribed dose to get high is not compliant use, so the intoxication is self induced whatever the label on the bottle said.

How the examiners mark it

Defences are step four of the problem method. They come after a prima facie offence is established, so never open an answer with a defence, and when one arises the burden sentence comes first. Triage the elements: where one is obviously satisfied, say so briefly with the fact that shows it and spend the length on the element genuinely contested, killing a doomed defence in a line rather than omitting it. Conclude in likelihood language rather than verdicts because that calibrated register is rewarded separately from issue coverage. The predictable losses are selecting the wrong defence, inverting the onus, and arguing the belief limb without testing the specific acts.

Critical pitfalls and counter-arguments

Counter-arguments both ways

Each defence has a standard prosecution attack and a standard defence answer, and the marks sit in running both before concluding.

• Disproportion. The prosecution says the response went far beyond the threat; the defence answers that it is not judged too finely and is measured on the circumstances as perceived (Zecevic; s 322K(2)(b)). Resolve it on timing because force after the threat has ended is where the objective limb genuinely fails.
• The stale threat. The prosecution says nothing was threatened on the day; the defence answers that a threat may be unstated and inferred from the whole of the circumstances, including the history of the relationship (Rowan (2024) 278 CLR 470 at [62]). Resolve it on whether the standing threat was still live.
• The original aggressor. The prosecution says the accused started it; the defence answers that an original aggressor may still rely on self defence (Zecevic; Edmunds at [203]–[206]). Resolve it inside the limbs, since continuing aggression makes belief and reasonableness hard to sustain.
• The prescription pills. The defence says the drugs were prescribed so the intoxication was not self induced; the prosecution answers that the carve out covers only use in accordance with the prescription or the relevant dosage level, so exceeding the dose returns the intoxication to the self induced rule (s 322T).

Take it to the practice bank

This module is drilled in the Criminal Law practice bank. Every problem there carries a Pass answer, an H1 model answer, and an examiner's comment on the decisive fact and where the marks are lost.

Practice prompts

1. Select the defence by structure on a set of facts, and say why the attractive wrong one does not fit.
2. Write the onus sentence once, and use exactly the same words every time you raise a defence.
3. Argue both limbs of self defence, and test the belief against the specific act the accused did.
4. Take an intoxicated accused and route the intoxication correctly, to the defence or to the fault element.
5. Explain how evidence of family violence works inside self defence rather than as a defence of its own.