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SELF-DEFENCE

The law recognises the right of a person to act in self-defence from an attack or threatened attack to their person, another person or their property. Section 418(1) of the Crimes Act 1900 provides 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) details the circumstances where self-defence is available. This subsection provides “A person carries out conduct in self-defence if and only if the person believes the conduct is necessary--

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her 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 as he or she perceives them.”

Once self-defence is raised, the issue is whether the Crown has established that the accused was not acting in self-defence.

If you are considering raising self-defence to a criminal charge, the test that must be satisfied can be summarised as follows:

  1. Your actions were necessary for one of the following purposes:

  1. To defend yourself or another person;

  2. To prevent or end the unlawful deprivation of liberty;

  3. To protect property;

  4. To prevent criminal trespass to land or premises

AND

 

The conduct was a reasonable response to the circumstances as you perceived them.

The first limb of the self-defence test requires the Court to accept that your conduct was essential to an immediate threat to yourself and there were not other options. The second limb requires the Court to accept that your conduct was reasonable in the circumstances as perceived by you, requiring a subjective and objective assessment of the situation you faced.

If you have been charged with a criminal offence and you think you might have the defence of self-defence available to you, please contact KF Lawyers for a free consultation.

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