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When a person is charged with a violent offence such as assault, murder or manslaughter in New South Wales, they can rely on the defence of self-defence. If a court accepts that an accused acted in self-defence or in defence of another, it will acquit them of the offence. Successfully arguing the defence of self-defence in Sydney or elsewhere in NSW requires an accused to demonstrate that at the time of the act they believed that their actions were necessary and reasonable in the circumstances. Part 11 Division 3 of the Crimes Act 1900 sets out the defence of self-defence.
Self-defence in Sydney: legislation
Section 418 of the Crimes Act 1900 sets out when the defence of self-defence is available in NSW. That provision states that accused is not criminally responsible for an offence if they acted in self-defence.
A person carries out an act in self-defence if they believe their actions were necessary for any of the following purposes:
- to defend themselves or someone else; or
- to prevent or terminate the unlawful deprivation of a person’s liberty;
- to protect property from being unlawfully taken, destroyed, damaged or interfered with; or
- to prevent criminal trespass or to remove someone who is committing such criminal trespass;
AND the conduct is a reasonable response to the circumstances as the person perceived them at the time.
Who bears the onus of proof when raising self-defence in Sydney?
If a person charged with a violent offence wants to advance the defence of self-defence, the onus is on them to raise the defence. The prosecution must then prove beyond a reasonable doubt that they were not acting in self-defence. To do this it must show either:
- That the accused did not genuinely believe that it was necessary to act as he or she did in their defence or in defence of another person; or
- That what the accused did was not a reasonable response to the danger, as he or she perceived it to be at the time.
What must the court consider?
There are two questions that a court must ask when self-defence is raised in a person’s defence. These are:
- is there is a reasonable possibility that the person believed that their conduct was necessary in order to defend themselves; and,
- if so, is there also a reasonable possibility that the accused’s actions were a reasonable response to the circumstances as they perceived them.
The court will determine the first question by considering the accused's personal characteristics and the situation as they perceived it at the time of the alleged offence. It is, an entirely subjective test.
The second question is determined by an objective assessment of the proportionality of the accused’s response to the situation as they perceived it. The accused does need to have had reasonable grounds for their belief that it was necessary to act as they did in self-defence. It is required only that the accused genuinely held that belief.
The court must assess the response of the accused. In making that assessment, some of the personal attributes of the accused will be relevant as will some of the surrounding physical circumstances in which they acted. Therefore, matters such as the accused’s age, gender, and the state of their health may be taken into account.
What if the accused was intoxicated?
If the accused was intoxicated at the time they committed the acts, the court will take their intoxication into account when assessing their defence. However, their intoxication will only be relevant when assessing their belief as to what conduct was necessary in their self-defence. A person who is drunk may perceive a situation differently to person who is sober. However, their intoxication will not be taken into account when assessing whether the reasonableness of their response in the circumstances.
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