News over the Easter weekend reports that a Newcastle man has been charged with murder after allegedly confronting a man who had broken into his house.

Whether his actions were legally justified will ultimately be determined by a court. However when death is inflicted, the defence of self-defence in NSW is restricted.

Self Defence Generally

Generally, for an accused person to rely on self-defence, he or she must establish that they:

1. believed that their conduct was necessary to defend themselves, defend another, to prevent damage or interference with property, or trespass; and,
2. what they did was a reasonable response in the circumstances as perceived by the accused.

When a court is assessing whether a person believed their conduct was necessary, the court is concerned with the  “subjective” belief of the accused. In other words, what that person actually believed was necessary as opposed to what a reasonable person would have believed.

In contrast, when assessing whether the response was reasonable, the court undertakes an “objective assessment” and asks itself whether the accused actions were reasonable in the circumstances as perceived by the accused. The “circumstances as perceived” by the accused is subjective.

When Death is Inflicted

In the context of a case where a person dies, there are a few relevant points to note:

• When death is inflicted, section 420 of the Crimes Act 1900 provides that self defence is only available to defend self or another (not to defend property or to prevent trespass)
• If a person is charged with murder, and the force used is found to be excessive, but the person believed their actions were necessary to protect themselves or another, the person is guilty of manslaughter and not murder.

For further information, see our earlier article in 2011.

Photo by Kindel Media