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Can I argue self-defence?

In some cases, clients will tell us that they committed an offence but were merely acting in self-defence. At law, this not simply a matter of proving that you...

Justin Wong

In some cases, clients will tell us that they committed an offence but were merely acting in self-defence. At law, this not simply a matter of proving that you were protecting yourself against someone else.

Section 418 of the Crimes Act 1900 states that self-defence is available if you believe that the conduct is necessary to:

  1. Defend yourself from another person; or
  2. Prevent or terminate the unlawful deprivation of your (or another person’s) liberty; or
  3. To protect your property from unlawfully being taken, destroyed, damaged or interfered with; or
  4. To prevent criminal trespass onto land.

The court will then have to assess whether your response was reasonable in the circumstances in which the offence occurred. Here, the question is not whether you perceived your own actions to be reasonable. Instead, the judge or jury is asking themselves whether they think your actions were reasonable in the circumstances.

That means that even if you were defending yourself, your response cannot be unreasonable or excessive. The only situation in which excessive force may still be taken into account is in relation to charge of murder.  For self-defence to be applied and considered for any other offence it must be reasonable.

If this defence is raised, it is for the prosecutor to prove beyond reasonable doubt that your conduct was not necessary for any of the four reasons above, and the conduct was not a reasonable response in the circumstances.

If the judge or jury finds reasonable doubt, a full defence is available – which means if self-defence is proved, you are not criminally responsible for the alleged offence.

If you are unsure whether you can raise self-defence, talk to one of our criminal law specialists on (02) 9025 9888.

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