The Law, Elements and Exceptions to Self Defence in NSW

The defence of self defence is a complete defence. This means that if self-defence is successfully raised by an accused, an accused person will not be criminally responsible and will be acquitted of an offence. The defence of self-defence however, is not straight forward and questions of whether a person believed that their conduct was necessary to defend themselves, other persons, property or criminal trespass and whether their conduct was a reasonable response in the circumstances which the person perceived them needs to be carefully explored within the circumstances of each particular case where such a defence may be available.

What is the Law of Self Defence in NSW?

Part 11 of the Crimes Act 1900 (NSW) contains the defence of self-defence. In particular, Section 418(1) of the Crimes Act states that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out that self-defence is available if and only if a person believes that the conduct is necessary to:

(a)  to defend themselves or another person, or

(b)  to prevent or terminate the unlawful deprivation a person’s liberty or the liberty of another person, or

(c)  to protect property from unlawful taking, destruction, damage or interference, or

(d)  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances the person perceives them.

What are the Elements of Self-Defence?

There are two elements of self-defence which both need to be satisfied for the defence to be made out. The first, that a person believes that the conduct is necessary to defend themselves, another person, property or criminal trespass. This is known as the subjective test as it focuses on the belief of the person claiming self-defence. The second is an objective test in that the conduct must be a reasonable response in the circumstances as a person perceives them. This is a question for the court to determine, whether by a Magistrate in the Local Court or a Judge or Jury in the District or Supreme Court. For example, a person who was pushed by an alleged victim acting aggressively toward them in a pub before striking the victim with a glass bottle causing major injuries to the alleged victim may have believed that their conduct was necessary to defend themselves however, a court will likely conclude that their response was not reasonable in the circumstances which they perceived them. In those circumstances, the defence of self-defence is not likely to succeed.

What are the Exceptions to the Law of Self-Defence?

Section 420 of the Crimes Act 1900 (NSW) states that self-defence does not apply if a person uses force that involves the intentional or reckless infliction of death merely to protect property or prevent criminal trespass or to remove a person committing criminal trespass.

Section 421 of the Act states that if a person uses force that involves the infliction of death and that the conduct is not a reasonable response in the circumstances as he or she perceives them but believes that the conduct is necessary to defend themselves or another person or to prevent or terminate the unlawful deprivation of their liberty or the liberty of another person, that person is not criminally responsible for murder, but is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.

How is Self-Defence Raised?

Self-defence can be raised by an accused, or it may arise in the evidence of a particular case generally. There is no need for an accused to give evidence to raise self-defence however the circumstances and tactical approaches of each case need to be carefully considered when considering the defence of self-defence. Once the defence of self-defence is raised, the prosecution has the onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence by either disproving that the accused believed that their conduct was necessary to defend themselves, others, property or trespass or by proving that the accused’s response was not reasonable in the circumstances as they perceived them.

Considerations of the Law of Self-Defence

The law and defence of self-defence is not straight forward, and each case needs to be carefully examined to determine whether self-defence can be raised, and an assessment made as to the likelihood of the defence being established. There are many contextual matters which may arise and the distinction between a person acting in self-defence and a person being found not to have acted in self-defence can be very fine indeed. Courts carefully examine all of the circumstances of the offence when assessing an accused’s belief and the reasonableness of their response. Prosecutors will often seek to disprove self-defence on the basis that an accused could have taken an alternative course of action in response to the circumstances which he or she perceives. It is therefore very important to seek legal advice and representation from one of our experienced lawyers to assess whether a defence of self-defence can be raised.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.

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