What Amounts to Self-Defence in New South Wales?

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Self Defence

Self-defence is a ‘complete defence’ to a criminal charge, which means you are entitled to a verdict of not guilty if it applies in your case.

Where is the defence contained in the law?

The defence is contained in section 418 of the Crimes Act 1900 which makes clear that you are not criminally responsible for an offence if:

  1. You believed your conduct was necessary:
  • To defend yourself or another person, or
  • To prevent the unlawful deprivation of your liberty or another person’s, or
  • To protect your property from being taken, destroyed, damaged or interfered with, or
  • to prevent criminal trespass to your land, or remove a person criminally trespassing, and
  1. Your conduct was a reasonable response in the circumstances as you perceived them.

Requirements of proof

To rely on self-defence, there must be evidence capable of supporting a reasonable inference that you acted in accordance with the section.

Once that evidence is raised, the onus then shifts to the prosecution to disprove beyond reasonable doubt that it does not apply in your case.

If the prosecution is unable to do this, you are entitled to an acquittal; in other words, a verdict of not guilty.

Examples of what may amount to self-defence 

Examples of conduct likely to amount to self-defence include:

  • Punching a person back after being punched,
  • Slamming a door on someone while having a genuine and reasonable belief the pursuer is seeking to assault you,
  • Holding an assailant down or locking them up to await authorities, and
  • Grabbing an implement and pointing it at another when holding a genuine and reasonable belief that he or she is about to assault you.

Examples of what may not amount to self-defence

Examples of conduct likely not to amount to self-defence include:

  • Continuing to punch someone who has punched you after the assailant has been subdued,
  • Punching a person who is swearing at you when you do not have a genuine or reasonable belief he or she is about to physically assault you, and
  • Using a weapon against another in circumstances where this is disproportionate to the perceived or actual threat.

Is the defence always available?

Self-defence is not available if you used force that led to the reckless or intentional infliction of death in circumstances where your conduct was solely to protect property, or to prevent or remove a criminal trespass

Excessive self-defence

charge of murder will be reduced to manslaughter if your conduct amounted to ‘excessive self-defence’.

This is where you used force that inflicted death while genuinely believing your conduct was necessary to defend yourself or another person, or to prevent the unlawful deprivation of your liberty or that of another person, but your conduct was not a reasonable response to the circumstances as you perceived them.

Seeking legal advice about whether you have a legal defence?

If you have been charged with a criminal offence and believe a defence such as self-defence, necessity or duress may apply to you, contact Sydney Criminal Lawyers anytime on (02) 9261 8881 to receive case-specific advice from a an experienced, specialist defence lawyer with a track record of consistently having charges withdrawn or achieving acquittals due to the availability of a legal defence. 

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Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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