Zecevic v Director of Public Prosecutions (Vic)
High Court of Australia · 1987
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
He believed he had to do it. Was that belief enough, or did he need a reason for it?
In Victoria, where Zecevic itself was decided, the common law has been abolished and replaced. Section 322N of the Crimes Act 1958 (Vic) provides that "[s]elf-defence at common law is abolished", and s 322K supplies the test: a person acts in self-defence if "(a) the person believes that the conduct is necessary in self-defence; and (b) the conduct is a reasonable response in the circumstances as the person perceives them", with s 322K(3) adding, for murder, that the belief must be that the conduct is necessary to defend against death or really serious injury. The statutory formulation differs from Zecevic in a way worth noticing: the belief limb has no express reasonable-grounds requirement, and the objective work is done at limb (b), by asking whether the response was reasonable in the circumstances as perceived. Zecevic is not spent there: Emerton P, Taylor JA and Kidd AJA hold that the common-law principles about an original aggressor "remain relevant" and "apply with the same or similar force having regard to the terms of the statutory provisions". Other jurisdictions have their own provisions; check the local Act before applying the common law.
What happened?
Zecevic and his family had built a block of units at Ascot Vale and lived in them. The deceased rented the adjoining unit. The relationship deteriorated, largely over his repeated failure to shut the security gates to the courtyard and to garage his car. On the day of the killing there was a confrontation; Zecevic's account was that the deceased stabbed him in the chest, and that he then went and got a gun and shot him.
The question for the High Court was how self-defence should be put to a jury — in particular whether the elaborate direction required by Viro v The Queen should survive, given the difficulty it had caused. Viro had itself been a compromise: only three members of that Court thought the law had been correctly stated in Howe, and three others accepted it only to give trial courts workable guidance.
What did the Court decide?
The Viro formulation was discarded. Wilson, Dawson and Toohey JJ took up the Privy Council's observation in Palmer that "an explanation of the law of self-defence requires no set words or formula", and reduced it to a single question ([16]).
Two elaborations matter for homicide. A person who kills intending to kill or do serious harm "can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response", and "[a] threat does not ordinarily call for that response unless it causes a reasonable apprehension ... of death or serious bodily harm" ([17]). And their Honours warned against turning evidence into rules: proportionality of force "may be only part" of the circumstances, and "[t]here is no rule which dictates the use which the jury must make of the evidence" ([18]).
Proposition
What is the principle?
At common law the question is "whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal" (Wilson, Dawson and Toohey JJ at 661, [16]).
Reasonable grounds are part of the test, not a gloss on it: "[i]f the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence" ([17]).
Why does this case matter?
Because of what it removed and what it changed. Viro had produced a six-proposition direction that trial judges had to deliver and appellate courts then had to police, and the difficulties in applying it are what drove the Court to start again. On the form of a direction the judgment is emphatic — the Palmer observation their Honours took up settles it — and attempting to identify the relevant considerations in the abstract carries "a danger of appearing to elevate matters of evidence to rules of law" ([18]).
But do not read it as a case about jury directions only. Their Honours identify two departures from Viro that are changes in the substantive law, and say so at [20]: in Viro "self-defence is confined to a response to an unlawful attack, whereas the law as we have explained it is not so confined" — so self-defence may be available against an attack that is not itself unlawful, though "only in an unusual situation" will such an attack give reasonable grounds. And at [21], "the use of excessive force in the belief that it was necessary in self-defence will not automatically result in a verdict of manslaughter". Where the belief had no reasonable grounds the plea simply fails, and the case is then considered "without reference to that plea". The qualified-self-defence route from murder to manslaughter that Howe and Viro had built went with it.
That has a direct consequence for how you read the cases. Statements in the authorities about retreat, about proportionality, about the accused having been the original aggressor, are matters a jury may consider — not elements to be worked through. Treating them as elements is the error Zecevic was decided to stop.
Exam and application relevance
Check the jurisdiction first. In Victoria the common law has been abolished outright by s 322N of the Crimes Act 1958, and s 322K substitutes a differently worded test; several other jurisdictions have their own statutory provisions. In a Victorian problem, apply the statutory test — but do not put Zecevic away, because it may still inform how that test is applied, as the Court of Appeal has held of the principles governing an original aggressor.
Where the common law does apply, state both halves of the belief limb. The accused must have believed the conduct necessary in self-defence and there must have been reasonable grounds for that belief. An answer that establishes a genuine belief and stops has answered half the question, and an answer that tests the response against the accused's perception without asking whether that perception had reasonable grounds has quietly dropped the objective element altogether.
Then work the circumstances without turning them into a checklist. Proportionality, the opportunity to retreat, who started it — each may bear on whether the belief was held and whether there were reasonable grounds for it, and none is a separate hurdle.
Check your understanding
Your client genuinely believed he was about to be killed, and on the facts nobody else would have thought so. At common law, where does that leave the defence?