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Self-Defence in Canberra

Self-defence can be relied on as a defence to a offence, including assault, murder and manslaughter. If a person is charged with a violent offence and the court accepts that they were acting in self-defence or in defence of another person, it will dismiss the charge. Once the defence of self-defence has been raised by the accused, the onus is on the prosecution to disprove the defence beyond a reasonable doubt.

Legislation

Section 42 of the Criminal Code Act 2002 outlines the defence of self-defence in Canberra and the rest of the ACT which provides that a person is not criminally responsible for an act if they carry it out in self-defence. A person is acting in self-defence only if they commit an act because:

  • they believe it is necessary to defend themselves or someone else; or
  • to prevent or end the unlawful imprisonment of a person; or
  • to protect property from unlawful appropriation, destruction, damage or interference by another person; or
  • to prevent criminal trespass to land or premises; or
  • to remove a person who is committing criminal trespass to land or premises.

The conduct has to be a reasonable response to the threat as the person perceived it.  

A person does not carry out conduct in self-defence if:

  • they use force that involves the intentional infliction of death or serious harm to in the defence of property, or to prevent criminal trespass or to remove a person committing criminal trespass; or
  • they are responding to lawful conduct that they know is lawful.

Burden of proof

The onus of proof in relation to the defence of self-defence does not ultimately rest on the accused. In Zecevic v DPP (1987) 162 CLR 645, Justices Wilson, Dawson and Toohey said:

“It has been clearly established that once the evidence discloses the possibility that the … act was done in self-defence , a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the … act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused.”

The prosecution must show either:

  • that the accused person did not genuinely believe that it was necessary to act as they did in their own defence; or
  • that what the accused person did was not a reasonable response to the danger, as they perceived it.

Principles

There are two questions that must be answered by a court when self-defence is raised. 

These are:

  • Is there a reasonable possibility that the person believed that their conduct was necessary in order to defend themself? and
  • If there is, is there also a reasonable possibility that what they did was a reasonable response to the circumstances as the accused perceived them?

The first question is determined subjectively, considering the accused’s personal characteristics at the time they carried out the conduct forming the basis of the alleged offence.

The second question is determined objectively, assessing the proportionality of the accused person’s response to the situation they believed they were facing.

The accused must have genuinely believed that they needed to act in the way they did to defend themselves against a threat.

The court is not assessing the response of the reasonable person but the response of the accused taking into account matters such as their age, gender, or health can be regarded by the court.

Pre-emptive strike, retreat and defence of another

The defence of self-defence can be relied on even where the accused made a pre-emptive strike to an attack. Courts in Australia have generally found that the belief that the accused is in danger needs to be reasonable, as objectively viewed.

A person is entitled to use the same degree of force in defending another person against imminent attack as they may use if they personally were under attack. This applies regardless of whether the other person is a “relative, friend or stranger”: R v Portelli (2004) 10 VR 259 per Ormiston, JA.

If you require legal advice or representation in relation to self-defence in Canberra or in any other legal matter, please contact Go To Court Lawyers.  

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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