O'Connell v McMennemin

[2014] ACTSC 112

Supreme Court of the ACT

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › Appeal from Magistrates Court
3. › Criminal conviction
4. › Appeal by way of rehearing
5. › Adequacy of reasons
6. › Whether magistrate gave sufficient reasons for decision
7. › Whether failure to make required factual findings
8. › Magistrates Court Act 1930 (ACT), s 208(1), Pt 3.10
1. Criminal Law
2. › Defences
3. › Self-defence
4. › Test for self-defence
5. › Whether accused believed upon reasonable grounds that it was necessary in self-defence to do what he did
6. › Whether prosecution required to negative self-defence
7. › Relevance of failure to retreat
8. › Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
1. Appeal
2. › Interference with findings of fact
3. › Whether verdict unsafe or unsatisfactory
4. › Whether acquittal inevitable
5. › M v The Queen (1994) 181 CLR 487

Quick Take

A magistrate must make factual findings about the circumstances at the time of the alleged defensive act and address the defendant's evidence about their belief when self-defence is raised. Failure to retreat is not determinative of self-defence and must be assessed as part of the overall reasonableness of the belief at the time of the act. A statement that self-defence is 'not made out' may suggest an impermissible reversal of the onus of proof, which requires the prosecution to negative self-defence.