Self-Defence in the Northern Territory

In the Northern Territory, self-defence is a full defence to any offence that involves the unlawful use of force. The defence is set out in section 43BD of the Criminal Code 1983. This page deals with self-defence in the NT.

What is self-defence?

A person acts in self-defence if they believe their actions are necessary:

  • To defend themselves or another person;
  • To prevent or terminate unlawful imprisonment;
  • To protect property;
  • To prevent criminal trespass;
  • To remove a person who is committing criminal trespass

AND their actions are a reasonable response in the circumstances as they perceive them.

What is not self-defence?

A person does not have a defence if they inflict death or serious harm in defence of property or in response to criminal trespass.

A person does not have a defence if they use force to defend themselves against a lawful action. For example, if a person is being lawfully arrested, they may not use self-defence.

When is the defence available?

Self-defence is a legal defence to the following offences:

  • Assault
  • Aggravated assault
  • Serious harm
  • Manslaughter
  • Murder
  • Violent act causing death

Self-defence must be proportionate

A person relying on the defence of self-defence will only be acquitted if the level of force they used was proportionate to the threat they perceived they were facing.

Lethal force can only be used in self-defence when the accused was facing a threat of death or serious harm. Lesser levels of force may be used in response to less serious threats.

The law recognises that a person must be allowed to defend themselves when faced with a physical threat, but only to the extent that is reasonable. A person who is faced with a threat is not expected to ‘weigh their response on a knife’s edge’ to assess the exact level of force that is justifiable. However, their response must not be out of all proportion to the threat faced.  

Burden of proof

The defence of self-defence has a reverse onus. This means that once an accused person has raised self-defence, it is up to the prosecution to prove that the accused was not acting in self-defence. The accused does not have to prove that they were acting in self-defence.  

Subjective and objective test for self-defence

The test for whether a person acted in self-defence has both an objective and a subjective element.

First, the court must consider whether the accused person had a reasonable belief that their actions were necessary in the circumstances. This is an objective test because it is based on the accused’s perceptions at the time of the alleged offence.

In assessing an accused person’s perceptions, their age, gender, background, mental health and intoxication may all be relevant. It is irrelevant what another person would have perceived or what the accused is able to see in hindsight.

Second, the court must consider whether the accused person’s actions were a reasonable response to the circumstances as the accused person perceived them. This is an objective test (whether the accused’s conduct was reasonable). The court must consider whether the force used was proportionate to the threat the accused perceived.  

If the accused’s actions were not a reasonable response to the threat they perceived, the defence of self-defence fails.

Zecevic v DPP

In Australia, the leading case on the defence of self-defence is the 1987 High Court decision of Zecevic v DPP. In that case, the accused was charged with murder after shooting his neighbour dead after an argument. The accused successfully argued that he believed that the neighbour had a knife and a shotgun in his possession and that he shot him in self-defence.

Dawson and Toohey JJ set out the requirements for self-defence as follows:

“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.”

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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