C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to store. When came back saw an opportunity and shot X and Y
Is there an air of reality to the defence of self-defence?
Air of reality – whether there is evidence on record upon which a properly instructed jury acting reasonably could acquit.
**Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury
**Both a subjective and an objective elements (no a modified test)
*Unlawful attack, (C has this, both objective and subjective)
*Reasonable apprehension of harm and death, and (C has this both ob and sub)
*Reasonable apprehension of no alternative to not be hurt or killed (this is wear it fails, on the objective part)
**It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be able to point to a reasonable ground for that belief
**The belief he had no option but to kill must be objectively reasonable
**For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds that his own safety and survival depended on killing the victim at that moment
When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at the 3 elements from the test 2 times.