Statutory self-defence

Elements of Statutory Self-defence

1.     Sections 322K(1)–(2) of the Crimes Act 1958 state:

(1) A person is not guilty of 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-

(a) the person believes that the conduct is necessary in self-defence; and

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

2.    It is not for the accused to establish that he or she held the relevant belief and that his or her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence (Crimes Act 1958 s 322I).

3.    This means that where self-defence arises on the evidence, the accused will be not guilty unless the prosecution proves either:

·       That the accused did not believe that the conduct was necessary in self-defence; or

·       That the conduct was not a reasonable response in the circumstances as the accused perceived them.

Belief in Necessity

4.    The first limb is a subjective test. The test is whether the accused believed that the conduct was necessary in self-defence. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances.

5.    For this element to be satisfied, it does not matter if the accused’s belief was mistaken, as long as it was genuinely held.

6.    If the accused was intoxicated (by alcohol, drugs or any other substances) at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary.

7.    The proportionality of the accused’s response to the harm threatened is just one factor to take into account in determining whether the accused believed that his or her actions were necessary

Reasonable Response

8.     The prosecution must prove that the conduct was not a reasonable response in the circumstances as the accused perceived them to be (Crimes Act 1958 s 322K(2)(b)).

9.    The question of whether the conduct was a ‘reasonable response’ is an objective test. Although it is an objective test, the reasonableness of the response must be considered in light of the circumstances as subjectively perceived by the accused. The relevant determination is whether there is a reasonable possibility that the accused’s conduct was a reasonable response in the circumstances as he or she perceived them.

10. The reasonableness of the response should also be assessed in terms of the objective proportionality of the conduct to the perceived situation

Intoxication

11. s 322T(2) of the Crimes Act 1958 states that:

If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.

12. This provision prevents intoxication being taken into account when determining whether the accused’s conduct was a reasonable response to the circumstances as he or she perceived them. However, it does not prevent intoxication being taken into account in determining whether the accused believed his or her actions were necessary in self-defence.

13. Section 322T(4) provides an exception for cases in which the intoxication is not self-induced. In such cases regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

Summary

14.   In summary, an accused person must be acquitted on the basis of self-defence if the prosecution has not proved that there is:

(a)           No reasonable possibility that the accused believed that his/her conduct was necessary to defend him/herself; or

(b)           No reasonable possibility that what the accused did was a reasonable response to the circumstances as s/he perceived them.