SELF DEFENCE
02-Jul-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 2/7/2010Self defence no longer relies upon the common law as it has been codified as per Division 3, Part 11A of the Crimes Act 1900 (NSW).
A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) 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 he or she perceives them[1].
Hence, the test imports both subjective and objective elements as to the assessment of the accused’s response.
Once self defence is raised - the onus of proof in a criminal prosecution to negative self defence falls upon the prosecution (s419 – for this reason self-defence is not a true defence) to establish either that:
(1) the accused did not genuinely believe that what he or she did was in self-defence,
or
(2) what the accused did was not a reasonable response to the danger as he or she perceived it to be (Katarzynski [2002] NSWSC 613 at para 23 and Dziduch (1990) 47 A Crim R 378).
The defence is not limited to situations where death or serious bodily injury is threatened: Honeysett (1987) 34 A Crim R 277. Before self-defence can be left to a jury there must be a threat of immediate harm: PRFN [2000] NSWCCA 230.
The first leg of the test is completely subjective. It is insufficient for the Crown to prove that the belief of the accused was unreasonable: Katarzynski [2002] NSWSC 613. The second leg of the test is whether the conduct of the defendant was a reasonable response in the circumstances as he or she perceived them. The test relates to whether the defendant's actions were reasonable, not to whether a reasonable man would have done the same thing: Conlon (1993) 69 A Crim R 92. As a result s428F Crimes Act does not apply and the court can take into account characteristics of the defendant such as intoxication (Conlon (1993) 69 A Crim R 92) and possibly delusional beliefs (Kurtic (1996) 85 A Crim R 57). However, in Katarzynski [2002] NSWSC 613 Howie J, held that Conlon did not apply to s418 and that whilst intoxication could be taken into account when considering whether the accused might have believed that it was necessary to act as he/she did in self defence and when considering the circumstances as he/she perceived them, but not when assessing whether his/her response to those circumstances was reasonable.
Once self defence is raised in the evidence - the Crown must satisfy the court that the defendant was not acting in self-defence beyond reasonable doubt: s 419 Crimes Act (NSW). Even if self-defence is raised in the Crown case, the issue may only be determined by the jury: DPP Ref (No. 1) (1992) 60 A Crim R 43.
Self defence is not excluded because the conduct that the defendant was responding to was lawful, or because the person carrying out the conduct to which the defendant responds was not criminally responsible for it: s422 Crimes Act - Thomas (1993) 65 A Crim R 269. Thus the defence can be raised even if the alleged victim was lawfully in the execution of his/her duty such as a police officer arresting an accused: Crawford v Regina [2008] NSWCCA 166.
Self defence will not apply where a person willingly engages in a fight: R v Nguyen (1995) 36 NSWLR 397. Nor will self defence arise in circumstance of retaliation – where a person is no longer reacting to the circumstances in order for them to defend themselves: Morgan v Coleman (1981) 27 SASR 334. However, an important consideration in regards to assessing the accused’s response to the circumstances - is that if the person is responding to imminent danger that they cannot be expected to weigh precisely the exact measure of self defence: R v Conlon (1993) 69 A Crim R 92 at 98.
CRIMES ACT 1900 - SECT 418
Self-defence-when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) 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 he or she perceives them.
CRIMES ACT 1900 - SECT 419
Self-defence-onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
CRIMES ACT 1900 - SECT 420
Self-defence-not available if death inflicted to protect property or trespass to property
This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass.
CRIMES ACT 1900 - SECT 421
Self-defence-excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
CRIMES ACT 1900 - SECT 422
Self-defence-response to lawful conduct
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or
(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.
CRIMES ACT 1900 - SECT 423
Offences to which Division applies
(1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section
(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.
[1] See s 418 Crimes Act 1900 (NSW) and s10.4 Commonwealth Criminal Code 1995 (Cth).
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