What is Self-Defence?
Self-defence is a common defence that can raised as an issue within many criminal cases.
For example, self-defence is a complete defence to murder and manslaughter in all jurisdictions. This entitles the accused to an acquittal when successfully proven. However, excessive self-defence is only able to reduce murder to manslaughter in the New South Wales jurisdiction due to the nature of the offence
What is the law for Self-Defence?
In NSW, Section 418 of the Crimes Act (1900) outlines when self-defence is available.
- A person is not criminally responsible for an offence if he carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
- To defend himself or herself or another person, or
- To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- To protect property from unlawful taking, destruction, damage or interference, or
- To prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstance as he or she perceives them.
How do you prove Self-Defence?
It is the prosecution’s duty to prove beyond a reasonable doubt that the conduct in question was not carried out as a means of self-defence. Specifically, the prosecution has the burden to prove either:
- The accused did not believe at the time of the conduct that he/she was doing what was necessary to defend his/herself; or
- The conduct of the accused was not a reasonable response to the circumstances as he/she perceived them.
The standard of proof for the defence is “reasonable possibility”. This refers to whether there was a reasonable possibility that the conduct of the accused was a reasonable response to the circumstances as he perceived them.
Essentially, if the person claiming self-defence had a reasonable basis for feeling as if their life or general safety was being threatened, their actions can qualify as self-defence. In other words, the conduct in question was a reasonable response to the circumstances as perceived by the individual.
An example of Self-Defence
R v Katarzynski 
Facts of the case
The deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although, it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder.
The Crown has conceded that on the evidence led in the trial it is open for the jury to find that there was a real possibility that when the accused shot the deceased he was acting in his own self defence. – Howie J
Principles applied for a defence of Self-Defence
There are 2 questions to be answered by the Court when self defence is raised.
- Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and
- If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as her or she perceived them.
The first question must be determined from a subjective viewpoint considering all personal characteristics of the accused. The accused is not required to have reasonable grounds for their belief that it was necessary to act in this way in order to defend themselves, it is sufficient if the accused genuinely holds that belief. Therefore, intoxication is only relevant to an assessment of the belief held by the accused as to what conduct was necessary to act in self defence under the circumstances perceived by the accused.
The second question is determined from an objective viewpoint concerning the proportionality of the accused’s response to the situation the accused subjectively believed they faced. Therefore, in relation to this question the accused’s state of sobriety is irrelevant in assessing the reasonableness of the accused’s response.
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