Self-defence
[6-450] Introduction
Part 11 Crimes Act 1900 contains a statutory form of self-defence. It was inserted by the Crimes Amendment (Self-defence) Act 2001. The amending Act applies to offences committed before or after its commencement, other than offences in which proceedings were instituted before commencement: s 423 Crimes Act; see also R v Taylor [2002] NSWSC 610.
The declared purposes of the amending Act were to “codify” the law with respect to self-defence and to repeal the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001.
Section 418(1) provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out the circumstances where self-defence is available. The questions to be asked by the jury under s 418(2) are succinctly set out in R v Katarzynski [2002] NSWSC 613 at [22]–[23] which was approved in Abdallah v R [2016] NSWCCA 34 at [61]. Section 419 provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
Self-defence can operate in cases based on joint criminal enterprise or extended joint criminal enterprise. A joint criminal enterprise is dependent on both the formation of an agreement and participation in it. If an accused’s participation is based on a lawful justification, or partial justification, they are not liable, or wholly liable for their participation: Robertson v R [2024] NSWCCA 99 per Dhanji J at [144], [147]–[149]; see also Harrison CJ at CL at [30]–[34]; Osland v The Queen (1998) 197 CLR 316.
[6-452] Raising/leaving self-defence
In order for self-defence to be raised or left to the jury there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence: Colosimo v DPP [2006] NSWCA 293 at [19]. It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: Colosimo v DPP at [19]; but it must be raised fairly on the evidence: Mencarious v R [2008] NSWCCA 237 at [61], [78], [90]; Douglas v R [2005] NSWCCA 419 at [99]–[101]. A tactical decision not to raise self-defence does not of itself foreclose the obligation of the trial judge, in appropriate circumstances, to leave the issue to the jury: Flanagan v R [2013] NSWCCA 320 at [76].
[6-455] Essential components of self-defence direction
A direction for self-defence in cases other than murder must contain the following essential components:
- 1.
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The law recognises the right of a person to act in self-defence from an attack or threatened attack.
- 2.
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It is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused’s act was not done in self-defence.
- 3.
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The Crown may do this by proving beyond reasonable doubt either:
- (a)
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the accused did not believe at the time of the act that it was necessary to do what they did in order to defend themselves; or
- (b)
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the accused’s act was not a reasonable response in the circumstances as they perceived them.
- 4.
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In determining the issue of whether the accused personally believed that their conduct was necessary for self-defence, the jury must consider the circumstances as the accused perceived them to be at the time.
- 5.
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If the jury is not satisfied beyond reasonable doubt that the accused did not personally believe that their conduct was necessary for self-defence, it must then decide whether the Crown has proved beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by them. If the Crown fails to do so it will have failed to eliminate self-defence.
- 6.
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If the Crown fails to prove either numbers 3(a) or (b), it will have failed to eliminate self-defence. If it proves one or the other, it will have succeeded.
A direction for self-defence in cases of murder must contain all the above numbers 1–5 essential components. The difference is that they are applied to the facts in a sequential way to accommodate the offence of manslaughter by excessive self-defence.
- 1.
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The jury is instructed as to numbers 1–2 above. It must first specifically consider self-defence on the charge of murder. The jury must be instructed in terms of number 3(a) above — that if the Crown has not proved beyond reasonable doubt that the accused did not believe that it was necessary to do what they did then the appropriate verdict is one of “not guilty of murder”.
- 2.
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Number 3(b) above is then considered, that is, whether the accused’s act was not a reasonable response in the circumstances as they perceived them.
- 3.
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If the jury finds that the Crown has failed to prove beyond reasonable doubt that the accused’s act was not a reasonable response in the circumstances as they perceived them, the Crown will have completely failed to eliminate self-defence. In that situation the jury is instructed to also return a verdict of “not guilty of manslaughter”.
- 4.
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However a verdict “not guilty of murder but guilty of manslaughter” can be returned if the Crown prove beyond reasonable doubt that the conduct of the accused was not a reasonable response in the circumstances as the accused perceived them because the particular use of force by the accused was excessive or otherwise unreasonable. Such a verdict can be returned providing the jury is satisfied beyond reasonable doubt of the other elements.
See also the discussion of Hadchiti v The Queen (2016) 93 NSWLR 671 and Moore v R [2016] NSWCCA 185 at [3-603] Notes. Both cases were concerned with appropriate directions for self-defence in question trails.
[6-460] Suggested direction self defence — cases other than murder
I come now to what has been referred to during the course of the trial as “self-defence”.
As you might expect, the law recognises the right of a person to act in self-defence from an attack or threatened attack [even to the point of killing].
This right arises where two circumstances exist. The first is that the person believes that their … [specify act, for example, stabbing] was necessary in order to defend themselves. The second is that what [the accused] did was a reasonable response in the circumstances as they perceived them.
Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that [the accused’s] … [specify act, for example, stabbing] was not done by [the accused] in self-defence. It may do this by proving beyond reasonable doubt either:
- 1.
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that [the accused] did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what they did in order to defend themselves, or
- 2.
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the [specify conduct, for example, stabbing] by [the accused] was not a reasonable response in the circumstances as they perceived them.
For the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt one or the other of these matters. It does not have to prove both of them. If you decide that the Crown has failed to prove both of them then the appropriate verdict is one of “not guilty”.
As to whether [the accused] may have believed that their conduct was necessary for self-defence, you must consider the circumstances as [the accused] perceived them to be at the time of that conduct. You must take into consideration any extraordinary attribute of [the accused] which bears on their perception of those circumstances and which had a bearing on any such belief they may have formed. … [deal with evidence as to intoxication, mental state etc of the accused].
It is their perception which must be considered and not what someone else might have perceived. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as [the accused] found themselves to be in. In hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what they did but that does not matter.
If the Crown establishes beyond reasonable doubt that [the accused] did not personally believe that their conduct was necessary for their defence, then the Crown will have succeeded in eliminating self-defence.
If the Crown has failed to prove beyond reasonable doubt the first aspect, then you should consider whether, the Crown has nevertheless proved beyond reasonable doubt that the conduct of [the accused] was not a reasonable response to the circumstances as perceived by [the accused].
The issue for you to consider is, having regard to the circumstances as they were perceived by [the accused], whether their response was unreasonable or excessive. Whether it was or was not a reasonable one in those circumstances is a matter for your judgment. It is not a matter of whether [the accused] thought their response was reasonable; it is a matter for you to consider whether it was or was not. In considering this question you should consider all aspects of [the accused’s] response including the nature, degree and means by which, force was used by them. The critical question is: has the Crown proved beyond reasonable doubt that it was not a reasonable response?
The Crown will only succeed in relation to this second part of self-defence if it satisfies you beyond reasonable doubt that the conduct of [the accused] was not a reasonable response in the circumstances as [the accused] perceived them to be at the time of the conduct in question.
… [It may be necessary to give directions on such matters as arise on the evidence relating to, for example, the imminence of a threatened attack or the availability of other remedies to the accused, such as retreat. It should, however, be made emphatically clear to the jury that it is the accused’s perception of the circumstances which must be considered.]
To summarise, there are two parts to self-defence and in relation to both of them the Crown bears the burden of proof. It is not for the accused to prove that they were acting in self-defence. It is for the Crown to prove that they were not. This involves you considering two questions:
- 1.
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Has the Crown proved beyond reasonable doubt that the accused did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what they did in order to defend themselves?
- 2.
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Has the Crown proved beyond reasonable doubt that the [specify conduct, for example, stabbing] by [the accused] was not a reasonable response in the circumstances as they perceived them?
If the answer to one or both of those questions is “Yes”, then the Crown will have succeeded in proving that the accused was not acting in self-defence.
If the answer to both of those questions is “No”, then the Crown will have failed to eliminate self-defence and the accused must be found not guilty.
[6-465] Suggested direction self defence — murder cases
I come now to what has been referred to during the course of the trial as “self-defence”.
As you might expect, the law recognises the right of a person to act in self-defence from an attack or threatened attack even to the point of killing.
This right arises where two circumstances exist. The first is that the person believes that their … [specify act, for example, stabbing] was necessary in order to defend themselves. The second is that what [the accused] did was a reasonable response in the circumstances as they perceived them.
Although “self-defence” is referred to as a defence, on a charge of murder it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that [the accused’s] … [specify act, for example, stabbing] was not done by [the accused] in self-defence. It may do this by proving beyond reasonable doubt that [the accused] did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what they did in order to defend themselves.
If you decide that the Crown has failed to prove that the accused did not have such a belief, then the appropriate verdict is one of “not guilty of murder”. If that is the case it will be necessary for you to consider manslaughter. I shall return to that.
As to whether [the accused] may have personally believed that their conduct was necessary for self-defence, you must consider the circumstances as [the accused] perceived them to be at the time of that conduct. You must take into consideration any extraordinary attribute of [the accused] which bears on their perception of those circumstances and which had a bearing on any such belief they may have formed … [deal with evidence as to intoxication, mental state, etc, of the accused].
It is their perception which must be considered and not what someone else might have perceived. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as [the accused] found themselves to be in. In hindsight, it might be thought that the accused was mistaken in believing that it was necessary to do what they did but that does not matter.
If the Crown establishes beyond reasonable doubt that [the accused] did not personally believe that their conduct was necessary for their defence, then the Crown will have succeeded in eliminating self-defence. Provided all of the other essential elements have been proved, you should find the accused “guilty of murder”.
On the other hand, if you are not satisfied that the Crown has proved beyond reasonable doubt the first aspect of self-defence you must find the accused “not guilty of murder”. You will then have to consider the second aspect of self-defence; namely, whether the Crown has satisfied you beyond reasonable doubt that the conduct of [the accused] was not a reasonable response to the circumstances as perceived by [the accused].
The issue for you to consider is, having regard to the circumstances as they were perceived by [the accused], whether their response was unreasonable or excessive. Whether it was or was not a reasonable one in those circumstances is a matter for your judgment. It is not a matter of whether [the accused] thought their response was reasonable; it is a matter for you to consider whether it was or was not. In considering this question you should consider all aspects of [the accused’s] response including the nature, degree and means by which force was used by them. The critical question is: has the Crown proved beyond reasonable doubt that it was not a reasonable response?
The Crown will only succeed if it satisfies you beyond reasonable doubt that the conduct of [the accused] was not a reasonable response in the circumstances as [the accused] perceived them to be at the time of the conduct in question. If you are satisfied of that, and provided you are satisfied beyond reasonable doubt of the other elements, your verdict should be “not guilty of murder but guilty of manslaughter”.
… [It may still be necessary to give directions on such matters as arise on the evidence relating to, for example, the imminence of a threatened attack or the availability of other remedies to the accused, such as retreat. It should, however, be made emphatically clear to the jury that it is the accused’s perception of the circumstances which must be considered.]
To summarise, there are two parts to self-defence and in relation to both of them the Crown bears the burden of proof. It is not for the accused to prove that they were acting in self-defence. It is for the Crown to prove that they were not. This involves two questions:
- 1.
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Has the Crown proved beyond reasonable doubt that the accused did not believe at the time of the [specify act, for example, stabbing] that it was necessary to do what they did in order to defend themselves?
- 2.
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Has the Crown proved beyond reasonable doubt that the [specify conduct, for example, stabbing] by [the accused] was not a reasonable response in the circumstances as they perceived them?
If the answer to the first question is “Yes”, then, provided all of the other elements have been proved, your verdict should be “guilty of murder”.
If the answer to the first question is “No”, but the answer to the second question is “Yes”, provided all of the other elements have been proved, your verdict should be “not guilty of murder but guilty of manslaughter”.
If the answers to the first and second questions are both “No”, then your verdicts should be “not guilty of murder” and “not guilty of manslaughter”.
[6-470] Suggested directions where intoxication is raised
The jury must be directed that they must take into account the accused’s self induced intoxication when considering whether the accused might have believed that it was necessary to act as they did in self-defence and when considering the circumstances as the accused perceived them: R v Katarzynski [2002] NSWSC 613 at [28]. However, the accused’s self induced intoxication is not taken into account when assessing whether the accused’s response to those circumstances was reasonable: R v Katarzynski at [28].
The following directions at [6-480] and [6-490] relating intoxication to self-defence may be appropriately adapted to the case. In a murder case, the adaptation should maintain the distinction in the relevance of the first limb as to whether the accused is guilty of murder and of the second limb as to whether the accused is guilty of manslaughter.
[6-480] Suggested written direction — intoxication
[The accused’s] intoxicated state —
- 1.
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must be taken into account in determining whether [the accused] believed that their conduct was necessary to defend themselves;
- 2.
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must be taken into account in determining the circumstances as [the accused] perceived them to be;
- 3.
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must not be taken into account in determining whether their response to those circumstances was reasonable.
[6-490] Suggested oral direction — intoxication
You should fully understand that the law provides (in substance) that a person who genuinely thought that they were in danger, even if they were wrong about that perception because … [specify, for example, their perception was affected by alcohol], may still be regarded as having acted in lawful self-defence provided that the person’s response was reasonable, based on the circumstances as they perceived them to be.
You need to look at the case through the eyes of [the accused] in its context, [taking into account their intoxicated state] and by reference to the actual situation in which they found themselves, and as they perceived it to be.
So you determine what [the accused] [in their intoxicated state] actually perceived was the danger they faced, and then determine whether what they did in response to that danger was reasonable. In determining whether what they did was reasonable, you stand back and consider the response from an objective viewpoint, disregarding any effects of alcohol upon them.
You are considering what would have been a reasonable response by a sober person in the circumstances as [the accused] drunkenly perceived them.