SELF DEFENCE
What is self defence?
A person acts in self-defence if they believe their conduct is necessary to defend themselves (or someone else, or their property) and their conduct is a reasonable response in the circumstances as they perceive them.
There are two limbs to the defence:
- That the accused believed their conduct was necessary
- That their conduct was reasonable in the circumstances as perceived by them
The first limb is subjective and depends entirely on what the accused believed. It does not matter how unreasonable their belief may have been, so long as it was honestly held.
The second limb is partly subjective and partly objective. One must look at the circumstances as perceived by the accused, even if that perception was completely wrong, and then ask whether the accused’s conduct was objectively reasonable in those circumstances.
As an example, if an accused perceives that are about to be attacked with a knife, then they may lawfully defend themselves with significant force, even if it turns out there was no knife and they were mistaken about the intent of the other person.
It only matters what the accused’s belief was at the time of the violence. If they subsequently realise their conduct was not reasonable or necessary, that is beside the point.
Do I have to prove I acted in self defence?
No.
Once self-defence is raised the prosecution must prove, beyond a reasonable doubt, that the accused was not acting in self-defence.
To raise self-defence there needs to be some evidence capable of supporting a reasonable doubt as to whether the prosecution has excluded self-defence. The evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation. In considering whether the evidence raises self-defence it must be taken at its highest in favour of the accused: Sivaraja v R; Sivathas v R [2017] NSWCCA 236
Do I have to give evidence to raise self defence?
No.
Self-defence can be raised by virtue of other evidence. For example, from other witnesses or by the accused in an interview with police: Colosimo v ODPP (NSW) [2006] NSWCA 293
Is it self defence even if I also wanted to fight?
It can be.
A finding that an accused “wanted to fight” does not of itself exclude self-defence, but is relevant to whether the accused could have believed his or her conduct to be necessary: Colosimo v ODPP (NSW) [2006] NSWCA 293
Do I have to retreat?
No.
However, if a person believes that retreating can remove any risk of harm, then that belief would generally be inconsistent with a belief that it was necessary to act in self-defence: Colosimo v ODPP (NSW) [2006] NSWCA 293
Can I act pre-emptively?
Yes. You can throw the first punch in self-defence.
If an accused honestly believes they are about to be attacked, they are entitled to take steps to forestall that threatened attack before it begins: Morgan v Colman (1981) 27 SASR 334
What if there were other, better, options?
It can still be self-defence.
Allowance must be made for the fact that a person “cannot always weigh precisely the exact action which [they]… should take in order to avoid the threat which [they] reasonably believed that [they] faced at the time.” The matter must be considered “in a broad and practical manner, giving proper weight to the situation in which the accused found [themselves], with little (if any) opportunity… for calm deliberation or detached reflection.”: R v Dziduch (1990) 47 A Crim R 378
Can an accused’s mental health and personal history be taken into account?
Yes.
In R v Hutchison & Wilkinson [2018] NSWSC 1759 Hammil J said, “In considering whether Ms Hutchison held a genuine belief that her children were in danger, and what conduct she believed was necessary to defend them, her own (undisputed) history of being disbelieved as a child victim of sexual assault, and the psychological impact this had on her, are also important. This is likely to have informed the beliefs she had about the dangers her ex-husband posed to the children.”
Can the accused’s beliefs about the other party be taken into account?
Yes.
If an accused believes the other party has a history of violence, then that will be taken into account in determining the honesty of their belief that they needed to defend themselves, and reasonableness of their conduct: R v Castaneda [2015] NSWSC 964. It doesn’t matter if those beliefs are mistaken.
Is intoxication relevant?
Yes.
The accused’s intoxication is relevant to determining what they perceived and believed. It is not, however, relevant to determining whether their conduct was reasonable in those circumstances: R v Katarzynski [2002] NSWSC 613
Can I act in self defence to defend other people or property?
Yes.
However, in New South Wales section 420 the Crimes Act 1900 (NSW) provides that self-defence does not apply if a person recklessly kills someone merely to defend their property. The Commonwealth legislation goes a little further providing that self-defence does not apply if the accused recklessly kills or intentionally inflicts “really serious injury” merely to defend property.
What criminal charges can be defended on the basis of self defence?
Virtually all offences of violence can be defended on the basis that the accused was acting in self-defence. This includes:
- Affray
- Intimidation
- Common assault
- Assault police
- Assault occasioning actual bodily harm
- Reckless and intentional wounding and grievous bodily harm
- Manslaughter
- Murder
Self-defence can also be raised in respect of some non-violent offences. For example, a person might have an excused for driving under the influence of alcohol in order to escape an attempted assault. However, in all cases the issue of reasonableness must be carefully scrutinised.
What is “excessive self defence”?
Where the self-defence is excessive it will not be a defence to the charge, but it may significantly reduce the otherwise appropriate penalty.
