Self-Defence in Tasmania

In Tasmania, the law permits a person to physically defend themselves or another person from harm to the extent that it is reasonable to do in the circumstances. This defence, which is derived from the common law, is codified in section 24 of the Criminal Code Act 1924. The Criminal Code also contains provisions relating to the defence of property. This article deals with the defence of self-defence in Tasmania.

Legislation on self-defence in Tasmania

Under section 24, a person acts in self-defence if they defend a person using no more force than it is reasonable to do in the circumstances as the accused perceives them to be. If an accused person perceives an attack to be more serious than it actually is, it is still their perception, rather than the reality that is relevant here.

The level of force that is reasonable to use is to be assessed objectively, based on the accused’s subjective perception of the circumstances. The test is therefore partly subjective and partly objective.

Burden of proof

The defence of self-defence carries a reverse onus. This means that once the defence raises self-defence, it is up to the prosecution to prove that the accused was not acting in self-defence. The defence does not have to prove that the accused was acting in self-defence. If the possibility that the accused was acting in self-defence cannot be excluded, the accused must be acquitted.

Rationale for self-defence

The defence of self-defence is based on the idea that people are entitled to defend themselves and others against physical attacks. The law does not expect a person to remain passive when their safety is threatened. If a person takes reasonable action to defend themselves, they will not be punished for this, even if the other person comes off worse than the person acting defensively.

If a person acts in self-defence at a time when they fear being hurt or killed, they are not expected to ‘weigh their response on a knife’s edge’ to determine exactly the right level of force to use. However, the response must not be out of proportion to the threat faced.

Murder and manslaughter

A person can be found not guilty of murder or manslaughter on the basis of self-defence if they believed on reasonable grounds that it was necessary in the circumstance to act as they did in self-defence. In order to find an accused person guilty of murder, a jury must be satisfied beyond a reasonable doubt that their actions were not reasonable in self-defence.

Zecevic v DPP

The leading case on the defence of self-defence is the 1987 High Court of Australia decision of Zecevic v DPP. In that case, the accused had killed his neighbour and relied on self-defence. He maintained his actions were necessary as he believed that his neighbour had a gun and a knife in his possession. The accused had retrieved his gun and shot the man dead.

The court expressed the following formula for determining whether self-defence applies in any case:

‘The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.’

Defence of property in Tasmania

The Act also provides that a person is justified in using reasonable force to defend property in the following circumstances.

• to prevent the breaking and entering of a house with intent to commit a crime, or to eject a person who has unlawfully entered (section 40).
• To prevent a person from trespassing or to remove a trespasser (section 41).
• Where the person is in peaceful possession of real property (section 42).
• Where the person is in peaceful possession of moveable property (section 43) or to retake moveable property form a person who does not have a right to it (section 44).

It is not justifiable to use lethal force (that is, force that is likely to cause death or serious harm) in defence of property.

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