There have been several events making the news recently about a person entering another’s home and that person being assaulted or even killed by the home-owner, with the home-owner claiming they were acting in self-defence – that is, in defence of their loved ones and their home. While on an emotional level it is perhaps understandable that someone could act in a manner that causes harm to another in defence of themselves, their family or their property. But it is vital to understand the legal consequences of such an act, and the issue of how far is too far when it comes to raising self-defence as a defence. Should you be charged with an offence relating to use of force on another such as assault or murder?
What is self-defence?
The Crimes Act NSW (1900) states that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. So this leads to the question – what is self-defence? Section 418 Crimes Act defines carrying out conduct in self-defence
“if and only if the person believes the conduct is necessary:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage or interference, or
- 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 as he or she perceives them.”
Essentially there are two questions the court will need to consider are:
- Whether you thought that the act was necessary to protect yourself, property or another person; and
- Whether the conduct was actually a reasonable response to the threat as you perceived it to be.
If you are charged with a relevant offence such as assault, you only need to raise the issue of self-defence. The other side will need to prove beyond a reasonable doubt either that you did not genuinely believe the act was necessary in self-defence; or that what you did was not a reasonable response to the danger as you perceived it to be.
When can self-defence not be used as a defence?
Section 420 of the Crimes Act states that self-defence will not be available in cases where a person “uses force that involves the intentional or reckless infliction of death” in defence of property or to prevent a party from defending their property. Thus, it is evident there are definitely limitations on the use of self-defence and that it is always best to seek legal advice for information on these kinds of matters rather than news and other media, which may often provide inaccurate assumptions about when self-defence and other defences may be used.
If you have any questions relating to the use of self-defence or for any advice on your criminal law matter, call our solicitors on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.