Self Defence

Self Defence 

The law protects individuals who believe, on reasonable grounds, that their actions were necessary in self defence.

Therefore, there are 2 elements to the defence of self defence:

  • ‘belief’ (subjective); and
  • ‘reasonable’ (objective).

In order to examine these elements, the jury must look at the circumstances of the offending as a whole.

If this defence is raised, it is up to the Prosecution to disprove one or both of the elements of self defence. 

Because of the 2-stage test, self defence can be a difficult defence to run at trial. It requires a thorough examination of all the facts of the case.

The Crimes (Homicide) Act 2005, has introduced two statutory self-defence provisions into the Crimes Act 1958. These provisions cover:

Murder cases (s9AC):

‘A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.’

Manslaughter cases (s9AE):

‘A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary—

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

(b)     to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person— and he or she had reasonable grounds for that belief.’

The defence of self defence can also be used when the Accused is charged with assault charges e.g. recklessly or intentionally causing serious injury, recklessly or intentionally causing injury and/or unlawful assault.