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Justifiable Force (NT)

Under the NT Criminal Code 1983, there are a number of situations where a person is permitted to use physical force and where doing so does not amount to an offence. If a person is charged with an offence involving violence and they were acting defensively or for some other reason that is excused or justified at law, they may be able to rely on this as a defence, depending on the level of force used and the surrounding circumstances. This article outlines the situation where the use of force is justified under NT law.

Domestic discipline

In the NT as in many other jurisdictions, the law recognises a parent’s right to discipline a child through the use of force. The force used in this situation must be reasonable with respect to the age and size of the child and the context in which they are being punished.

A parent may delegate their right to discipline their child to another person who is looking after the child. This may be done expressly or by implication. A schoolteacher of the child is presumed to have had this power delegated to them unless it has been expressly withheld.

This right is set out in section 11 of the Criminal Code.

A parent or a person acting in loco parentis would generally be found to be acting within the ambit of this provision if they were to smack a child who was misbehaving or physically confine a child for a short period as a punishment.

In cases where a parent or carer uses excessive force to discipline a child, such as hitting a child with a closed fist, choking a child or in some way causing bodily harm to a child, they are likely to be found to have been acting outside the ambit of the justifiable force provided for under this section. In such a case, a prosecution for assault or another offence may be successful.

Defensive conduct

The law does not expect a person to remain passive when their life, safety or property are threatened. They are allowed to use reasonable force to defend themselves. This general criminal law principle has been enshrined in the NT in section 29 of the Criminal Code.

Under section 29, a person in the NT is justified in using force when they believe doing so is necessary:

  • To defend themselves or another person;
  • To prevent the unlawful deprivation of a person’s liberty;
  • To protect property from destruction, appropriation, damage or interference;
  • To prevent trespass to land or remove a trespasser from land;

AND the defensive conduct is a reasonable response to the situation as the person perceives it.

What is reasonable in self-defence depends on the extent of the threat the person believed they were facing. Their response must be proportionate to the threat faced, but a person is not required to ‘weigh their response on a knife’s edge’ at the moment they face the threat.

It is important to note that a person is not permitted to inflict death or serious harm in defence of property or to prevent trespass. If a person is defending property against an intruder and believes that the intruder intends to steal or damage property, lethal force may not

When the defence raises the defence of self-defence, the prosecution bears the burden of disproving it. In other words, the prosecution must prove that the accused was not acting in self-defence.

Justifiable force

The Criminal Code also authorises persons in the NT to use force (provided the force is not intended and is not likely to cause serious harm) in order to:

  • process a sentence, make an arrest or execute a warrant;
  • prevent a person from escaping lawful custody;
  • to prevent a breach of the peace;
  • to suppress a riot;
  • to prevent the commission of an offence;
  • prevent a person from committing suicide;
  • to maintain order and discipline on a ship or aircraft.

A person using physical force in these situations is not committing an offence.

Justifiable force by police and others in authority

Police are allowed to use reasonable force in a range of situations, including carrying out an arrest or preventing a crime from occurring.

Under section 28 of the Criminal Code, police are also allowed to use a level of force that is likely to kill or cause serious harm in some circumstances. This is permitted when a police officer is arresting a person who they reasonably believe:

  • Will commit an offence punishable by life imprisonment if not arrested;
  • Has taken flight to avoid arrest;
  • Has been called on to surrender by the police and has been given a reasonable opportunity to do so;

It is also permissible when:

  • a police officer or correctional officer is trying to prevent someone from escaping from lawful custody if the person is likely to commit an offence punishable by life imprisonment;
  • the police are attempting to suppress a riot;
  • to prevent a person from committing an offence that is likely to result in serious harm or death;
  •  a person in command of a ship or aircraft if trying to prevent a person from committing an offence that is likely to result in death or serious harm.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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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