Crim Lecture 1 Week 6

SELF – DEFENCE

 Rationale of defence
 Analysis of the legislation – ss418 – 423

Rationale of the defence

 The law accepts someone acting with violence or extreme violence in certain
circumstances and are not guilty if they are acting in self-defence but only when the
violence is ‘reasonably necessary’ depending on the facts and circumstances of the
case at issue – Position of common law
 Position in NSW – law re self-defence is entirely codified. NSW Bench Book is that
the judge is to explain to the jury that “as you might aspect the law recognises the
right of a person to act in self-defence”. Note the word “right”.
 Traditionally characterised as a justification because it is about an individual
responding to an external pressure. On the other hand, mental impairment is
characterised as an excuse, because that person is reacting to an ‘internal issue’.
Procedurally if a person is successful in arguing a justification, it will lead to a total
acquittal.
 Test of Self-Defence at Common Law
o Zecevic is NOT the law in NSW but important to relate to the common law
position
o At common law, hybrid test of a ‘subjective belief’ that was based on an
objective ‘reasonable grounds’
 Test of Self Defence in NSW (statute)
o NSW provisions were only inserted in 2001, and came into effect in 2002.
Relatively new provisions. These provisions reflect 10.4(2) of the
commonwealth criminal code provisions on self-defence.
o So the Zecevic test is NO LONGER the law in NSW – it has been replaced by
s418
Section 418 – Self-defence – when available

 It is a complete defence beyond murder (contrast to provocation – partial defence

with regards to murder to manslaughter)
 “if and only if” – the limits placed by (a) to (d). if it doesn’t fall under any of the limits
then it is not self–defence

Contrast between Common Law and new NSW provisions

 Both under common law and NSW provisions, it is usually raised as a defence
involving use of force or threat of force. But theoretically it is important to
remember that it is an available defence for ANY offence
 S418(2) – hybrid subjective and objective test
 Onus and std of proof contrast between common law and NSW statute
o Common law : D with evidential burden, P with legal burden to disprove
o S419 of NSW provisions specify that prosecution must negate self-defence
without reasonable doubt.
o In terms of evidence, balance of probabilities.

Breadth of understanding of “self” under s418 (2)

 To defend oneself including to end an unlawful detention

 Also extends to the protection of others, can be defending another person or
seeking to end another person’s detention.
 Also can believe that it is necessary to act to protect property
 Or to prevent trespass or removing a person committing criminal trespass
 BUT there are limits to those grounds
o Limits revolve around situation where death results
o Provisions provide that one can’t argue self-defence if a person is killed
because you were only protecting property or preventing trespass – because
essentially the person have acted disproportionate.