In NSW, self-defence may be available as a defence to certain charges under section 418 of the Crimes Act 1900 (NSW).
A person is not criminally responsible for an offence if they carry out the conduct constituting the offence in self-defence.
Legal Elements of Self-Defence
A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
- to defend themselves or another person; or
- to prevent or terminate the unlawful deprivation of their 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 circumstances as they perceive them.
Proving 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 protection. Specifically, the prosecution has the burden to prove either:
- The accused did not believe at the time of the conduct that what they were engaging in was necessary to defend themselves; or
- The conduct of the accused was not a reasonable response to the circumstances as they perceived them.
The standard of proof for the self-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 they perceived them.
Essentially, if the person claiming this self-defence claim had a reasonable basis for feeling as if their life or general safety was being threatened, their actions can qualify as lawful protection. In other words, the conduct in question was a reasonable response to the circumstances as perceived by the individual.
Case Example: R v Katarzynski [2002] NSWSC 613
Facts of the Case
The deceased was shot by the accused following several altercations between them in a hotel in Liverpool in the early hours of a morning in 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. However, it was a matter for the jury to determine whether the accused’s 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.
In that case the Court found that on the evidence led in the trial it was 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 protection.
Legal Principles for Self-Defence Claims
There are 2 questions to be answered by the Court when this defence is raised:
Question 1: Subjective Belief
Is there a reasonable possibility that the accused believed that their conduct was necessary in order to defend themselves?
This question is 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. The actions are only relevant to an assessment of the belief held by the accused as to what conduct was necessary to act defensively under the circumstances perceived by the accused.
Question 2: Objective Reasonableness
If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as they perceived them?
This question is determined from an objective viewpoint concerning the proportionality of the accused’s response to the situation the accused subjectively believed they faced. The accused’s state of mind is not relevant in assessing the reasonableness of the accused’s response.
Applicable Offences
Self-defence may be raised in defending against:
- Assault charges, including common assault, assault occasioning actual bodily harm, and more serious assaults involving wounding or grievous bodily harm
- Murder and manslaughter charges
- Other violent offences such as affray, intimidation, and other offences involving the unlawful use of force
Self-Defence and Affray Charges
In New South Wales, affray involves the use or threat of unlawful violence that would cause a person of reasonable firmness to fear for their safety, in public or private places, pursuant to section 93C of the Crimes Act 1900 (NSW). The maximum penalty for affray is 10 years imprisonment.
Applying Protection Defence to Affray
Applying this defence to affray requires that the subjective belief about the perceived threat is established, including:
Perceived Threats:
- Aggressor’s weapons
- Verbal threats
- Prior violence
Contextual Factors:
- Location and time
- Prior interactions with aggressors
- Environmental circumstances
Your belief need not be factually correct, only honest and reasonable based on your perception at the time. For example, if an assailant shouted, “I am going to stab you,” your defensive violence stands even if no knife existed.
Court Evaluation
The court will evaluate force “in the circumstances as you perceived them.” This means the assessment focuses on whether your response was proportionate to the threat as you genuinely believed it to exist, not necessarily as it objectively was.
Key Considerations for Self-Defence Claims
Timing of Response
The defensive conduct must occur during or immediately after the perceived threat. Delayed retaliation typically cannot be justified as protective action.
Proportionality Requirements
While the response need not be perfectly calibrated, it must be proportionate to the threat perceived. Using excessive force beyond what was reasonably necessary may negate the defence.
Burden of Proof
Remember that once this defence is raised, the prosecution must disprove it beyond reasonable doubt. You do not need to prove you acted in protection; rather, the prosecution must prove you did not.
NEED LEGAL ADVICE?
Self-defence claims involve complex legal principles requiring careful application of both subjective and objective tests. The distinction between genuine belief and reasonable response requires thorough legal analysis and strategic presentation of evidence.
For more information and legal advice regarding criminal matters, call our solicitors. Prepare to bring all documentation provided to you by the police; medical records where injuries were sustained during the incident (if any); and any witness contact details.
