Is self-defence in Flames?... A matter of perspective

<p dir="ltr">Criminal self-defence in New South Wales and Australian Federal law is decided by a legislated, two limbed test.¹ This test requires an assessment by a trier of fact, firstly, of whether a defendant believed their conduct was necessary to protect people or property and, secondly, whether the conduct of the defendant was reasonable in the circumstances as they perceived them.² This thesis analyses the application of that test in the context of the extreme example of 2020 Supreme Court case of <i>R v Flame</i>, a murder trial involving a self-defence argument by a defendant who believed he was fighting a demon.³ Doctrinal analysis of historical and contemporary common law and legislation as well as Parliamentary explanatory material is used to examine several ‘challenging questions about the objective intention of Parliament with regard to s 418 and following of the <i>Crimes Act 1900 </i>(NSW)’ that arose in <i>R v Flame </i>around the use of self-defence by people who hold unreasonable and even absurd beliefs.⁴ This thesis makes three main findings: firstly, the current legislated self-defence test taking the subjective perspective of the defendant in both limbs of the test is historically anomalous.⁵ Secondly, there is a paucity of explanation and rationality in Parliamentary explanatory material for this anomalous approach. Lastly, the current legislated self-defence test leaves open the potential for defendants who act based on unreasonable beliefs, even to the extreme level seen in <i>R v Flame</i>, to be acquitted on the grounds of self-defence.⁶ These findings provide evidence that the common law self-defence test in <i>Zecevic v Director of Public Prosecutions (DPP) (Vic) </i>(1987) (‘<i>Zecevic</i>’) may more effectively fulfill the important historical role of self-defence than the legislated test.⁷</p>