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Section 418 of the Crimes Act 1900 outlines when self defence is available.
(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:
and the conduct is a reasonable response in the circumstances as he or she perceives them.
An accused only needs to raise self defence as an issue in their case. The prosecution then has to prove that the accused was not acting in self defence beyond a reasonable doubt.
The prosecution must show either:
The information contained below involves complex legal principles. If you do not have a good knowledge of the law you may have difficulty understanding the principles. If you need assistance, please call or email us.
R v Kirstain William Katarzynski
The deceased was shot by the accused three times to the torso at a Hotel in Liverpool. There was no issue that the accused committed the act which caused the death of the deceased. The prosecution conceded that there was a real possibility that when the accused shot the deceased he was acting in his own self defence.
There are two questions to be answered by the Court when self defence is raised.
The first question is determined by a completely subjective point of view considering the personal characteristics of the accused at the time they carried out the conduct.
The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed they faced.
The accused need not have reasonable grounds for their belief that it was necessary to act in the way they did in order to defend themselves as the common law required. It is sufficient if the accused genuinely holds that belief.
The jury is not assessing the response of the reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury.
Intoxication is only relevant to an assessment of the belief held by the accused as to what conduct was necessary in his self defence and as to the circumstances perceived by the accused (The first question)
One matter that must be irrelevant to an assessment of the reasonableness of the accused's response (second question) is his or her state of sobriety.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.