The law of self-defence can be difficult to apply to a set of facts. Whilst I make every endeavor to convey the precise nature of the common law as it currently stands, the purpose of this article is to give a useful overview.
Section 418 of the Crimes Act 1900 (NSW) states when self-defence is available. However when considering the statutory provision, it is incumbent to gain a thorough understanding of the common law and what the authorities tell us.
Self-defence is generally thought of as a ‘defence’ to a charge, but the reality is, once an accused person has raised ‘self-defence’ as an issue, it is for the Crown or Police to negative it. Put another way, the Crown bear the responsibility of proving beyond a reasonable doubt that the acts of the accused do not give rise to a reasonable possibility that the acts were done in self defence. They must cancel it out. The accused person does not need to prove anything (See the case of, ‘Viro’ at CLR 95).
The authorities tell us that assessing the accused’s subjective belief is critical. A fundamental question in relation to the issue of self-defence is whether the Crown has established that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he or she did.
The Crown may establish either that the accused had no such belief or that there were no reasonable grounds for such a belief and if the Crown fails to establish one or other of those two alternatives, the accused is entitled to be acquitted of the charge.
When assessing whether the Crown have discharged their duty, it is important to look at the surrounding circumstances of the event and identify the relevant factor that may assist a Magistrate, Judge or Jury to reach their decision. The degree of force is only one consideration and should be assessed alongside the whole of the circumstances of the incident (See: Zecevic at CLR 662-3).
When sitting down with a client who may seek to raise self defence as an issue, it is important to obtain in depth instructions relating to that client’s state of mind. If the client instructs that they believed that they needed to do what they did in order to defend themselves, it is prudent to ask why. This may go without saying, but it is important to gain an understanding as to what the client knew (at the time of the incident) about the complainant/s in order to understand how/why they held such a belief. Cross-examining the complainant in relation to their criminal history or violent past can be effective in not only establishing your client’s state of mind at the time of the incident, but also showing the tribunal of fact the type of complainant that we are dealing with (without dropping your character shield).
Some noteworthy principles/quotes are as follows:
– A tribunal of fact should recognise that a person defending him/herself cannot weigh to a nicety the exact measure of his necessary defensive action: Palmer at 832.
– The Crown has to establish (as one of the relevant circumstances) that the force in fact used by the accused was out of all proportion to the attack which he said that he thought was being made upon him: Dziduch at 379.
– The law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did: Zecevic v DPP (1987) 162 CLR 645
– The common law recognizes that there are many circumstances in which a person may inflict violence on another without committing a crime: Beckford v R  AC 130 at 144
– An irrational fear or a belief formed without reasonable ground for it, does not justify violent activity: R v Portelli (2004) 10 VR 259
– It is not for a Judge, Jury or Magistrate to consider what they would have done in the same position: R v Portelli (2004) 10 VR 259;
Leon Apostle is an experienced criminal law barrister. As a Sydney barrister he has defended countless matters in which self-defence has been raise as an issue. Please do not hesitate to contact Leon on 0410 808 885 to discuss your matter.