How Does the Defence of Self Defence Work in a Criminal Case?

How does the defence of self defence work in a criminal case? We explain how it works in the Australian Capital Territory and New South Wales.

The defence of self-defence in court can be difficult for a number of reasons. For one, by raising self defence, you are hoping that the trier of fact (Judge, Magistrate, or jury, depending on the Court your case is being heard in) will accept your account of events and will view the actions you took as being reasonable. Failing to successfully raise that your actions were reasonably  necessary and proportionate in response to the situation could result in major repercussions that could disrupt your life.

In a criminal case, the ultimate responsibility in proving a case rests with the prosecution. The prosecution must prove that an accused person is guilty of the offence (and each of the elements or ingredients of an offence) beyond a reasonable doubt. Since the trier of fact must treat the accused person as innocent until proven beyond a reasonable doubt otherwise, an accused person can potentially succesfully defend themselves by simply “putting the prosecution to proof” and without giving evidence at all.

However, if you wish to raise that you acted in self-defence of yourself, of somebody else, or of property, it may be that the accused person may need to give evidence if no other witness saw the accused person’s actions and could testify about the actions of the accused person. If you are thinking of raising self-defence, make sure you obtain legal advice about whether you should give evidence or not.

That being said, once self-defence is raised, the ultimate onus of proof regarding self-defence does not rest on the accused person. Once self-defence is raised, a burden falls upon the prosecution to disprove that fact in order to prove beyond a reasonable doubt that the accused person’s acts were not in self-defence. This principle derives from an important criminal case, Zecevic v DPP (Vic) (1987) 162 CLR 645 (“Zecevic”). 

While the burden of proof does fall upon the prosecution, it’s crucial for a person accused of a criminal offence to obtain legal advice about whether they may be able to raise self-defence in their case. Raising self defence successfully may protect an accused person from receiving punishment and a criminal conviction they don’t deserve. 

What qualifies as an act of self-defence?

In Zecevic, the High Court of Australia explained as follows:

“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.”

In the Australian Capital Territory, Section 42 of the Criminal Code 2002 provides:

(1)    A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.

   (2)    A person carries out conduct in self-defence only if—

     (a)    the person believes the conduct is necessary—

        (i)    to defend himself or herself or someone else; or

(ii)    to prevent or end the unlawful imprisonment of himself or herself or someone else; or

(iii)    to protect property from unlawful appropriation, destruction, damage or interference; or

        (iv)    to prevent criminal trespass to land or premises; or

        (v)    to remove from land or premises a person committing criminal trespass; and

(b)    the conduct is a reasonable response in the circumstances as the person perceives  them.

   (3)    However, the person does not carry out conduct in self-defence if—

     (a)    the person uses force that involves the intentional infliction of death or serious harm—

        (i)    to protect property; or

        (ii)    to prevent criminal trespass; or

        (iii)    to remove a person committing criminal trespass; or

     (b)    the person is responding to lawful conduct that the person knows is lawful.

   (4)    Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.

In New South Wales, the test for self-defence is very similar. Section 418 of the Crimes Act 1900 (NSW) provides that:

1. A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
2. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
3. to defend himself or herself or another person, or
4. to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
5. to protect property from unlawful taking, destruction, damage or interference, or
6. 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.

Breaking it down, there are really two things the Court has to consider:

1. Did the accused person reasonable believe their conduct was necessary to defend themselves, their property, or another person; and
2. Was the response reasonable in the circumstances as the accused person perceives them?

What does the prosecution have to prove?

As explained above, the ultimate onus of proof in relation to self-defence falls to the prosecution rather than the defendant. This means that the prosecutor must prove the defendant’s guilt beyond a reasonable doubt. When someone is being charged with physical violence and is looking to raise self-defence, they may be admitting the physical act but raising a defence to establish that they should not be criminally responsible for their actions.

In the process of disproving a defendant’s claim of self-defence, the prosecution must prove that either (1) the accused did not believe that their conduct was necessary to defend themselves, their property, or another person, or (2) the accused’s actions were not a reasonable response to the threat as they perceived it to be.

Conclusion

Raising self-defence isn’t always a guarantee that you will be found not guilty. While we’ve discussed some basic principles in the Australian Capital Territory and New South Wales in this article, every case is unique and will require a criminal defence lawyer’s expertise in order for you to have a chance of getting the best possible outcome. Remember— when criminal convictions and punishments are on the line, the stakes are high.

Andrew Byrnes Law Group is highly experienced in criminal law and criminal defence, and we serve Canberra and the surrounding areas including Queanbeyan, Goulburn, Yass, Cooma and Wollongong. We are ready to help you to try to avoid the worst case scenario and can assist in putting together a defence in your case.

If you’re looking for a lawyer to represent you in your criminal case, get in touch today.