Self Defence Laws Complete Guide

“A man’s home is his castle.” This sentiment is rooted deep in Australian culture, which reflects the sanctity of someone’s own residence, and therefore, their right to defend it at all costs. After all, our own home is perhaps the most private and intimate place in our lives. So, most Australians assume that the law would be on their side if they had to seriously injure an intruder, or worse.

However, a recent incident in northern NSW has highlighted this common misconception and has outlined the very strict and methodical tests for examining whether self-defence is lawful.

The Recent Incident

The debate around self-defence has been incited by an alleged home invasion in Torrington, a small town roughly 65 kilometres south-west of Tenterfield in northern NSW.

In June, 34-year-old Joshua Trethewey allegedly broke into Keith and Di Blessing’s property and stabbed them in the process. However, Mr Blessing retaliated and shot Mr Trethewey, resulting in severe injuries that led to an induced coma being required.

Mr Trethewey has been charged with two counts of wounding with intent to murder and one count of aggravated break and enter and commit an indictable offence. This is uncontroversial.

The controversy arises when considering whether Mr Blessing, the homeowner, may also face charges.

Despite his clear victimhood in this situation and the fact that he suffered serious injury himself, legal authorities think charges may actually be likely. This possibility has caused public outrage, and stems from a widespread misunderstanding of the limitations surrounding self-defence.

How Self-Defence Works For Criminal Charges in NSW

The relevant self-defence laws are enshrined in sections 418 to 423 of the Crimes Act 1900 (NSW). Unlike a partial defence which only reduces the sentence imposed, self-defence is a complete defence, which means that the accused is completely acquitted if self-defence is proven.

Since self-defence has this absolute power of entirely absolving criminal responsibility, there are two important and strict steps – often called “limbs” – that must be satisfied. There are two limbs, namely the first and second limb of self-defence.

The First Limb of Self-defence

The first limb concerns whether the accused person thought their conduct was necessary only for one or mor of the following four reasons:

1. To defend himself or herself or another person,
2. To prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person,
3. To protect property from unlawful taking, destruction, damage or interference, or
4. To prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

This test is subjective, which means the courts will look at what the accused thought themselves at the relevant time of using self-defence, considering their perspective based on circumstances as perceived by them. Self-induced intoxication can be taken into account when considering this limb of self-defence.

As such, a person can be wrong about the factual severity of a threat, but still think their conduct was necessary, which would satisfy this limb. This limb is usually quite uncontroversial in self-defence cases.

When considering whether the accused believed their conduct was necessary based on what he or she perceived at the time would require considering personal attributes of the accused including, age, health, gender and past experiences which may inform his or her belief about what conduct was necessary, including mental illness. Further relevant to the issue of belief is the accused’s belief that the alleged victim is violent, erratic, powerful, and/or prone to carry arms. Such matters have been considered and acknowledged by the court, including the case of Elias v R [2006] NSWCCA 365.

The Second Limb of Self-defence

The second limb is usually more difficult to prove, and concerns whether the accused’s conduct was reasonable in the circumstances as he or she perceived them at the time, and not that of the hypothetical reasonable person.

Relevant to the reasonableness of his or her response is personal circumstances of the accused, including age, health and strength.

This second self-defence limb is an objective test, and centres around the concept of a hypothetical ‘reasonable person’. This is a legal fiction used by courts and is meant to reflect what a logical and ‘normal’ person would do in the accused circumstances. The reliability and consistency of this test have been debated since its inception, but regardless, it remains the standard assessment.

So, if the accused subjectively thought that their conduct was necessary, and their conduct was objectively reasonable, self-defence will be made out, thus resulting in an acquittal of criminal charge(s).

Importantly, the burden of proof falls on the prosecution to disprove self-defence beyond reasonable doubt once self-defence has been raised on the evidence. Self-defence must be raised by evidence-there must be some evidence capable of supporting a reasonable doubt in relation to both limbs of self-defence. The evidence should be taken at its highest in favour of the accused. Once raised, the prosecution is required to negate any reasonable possibility of it.

When considering the second limb to self-defence, any self-induced intoxication is not relevant to assessing whether the response to those circumstances perceived by the accused was reasonable.

The leading case on self-defence commonly referred to by courts is R v Katarzynski [002] NSWSC 613.

Self-defence for Murder Charges

While self-defence is available for almost all criminal offences, there are strict limitations where it causes death. When defending your property, self-defence is not available where the accused’s conduct causes death, and its sole purpose was to:

• Protect property, or
• Prevent criminal trespass or remove a trespasser

Basically, you cannot lawfully kill someone to defend your possessions, or to throw out an intruder.

Further, there are special considerations for where an accused kills someone and thought their conduct was necessary to defend their (or someone else’s) life or liberty, but the conduct is found to be objectively unreasonable. Instead of being found guilty of murder here, they will be convicted for manslaughter by excessive self-defence pursuant to section 421 of the Crimes Act 1900 (NSW).

The legislation provides a final instruction: self-defence is not automatically excluded just because the accused is responding to lawful conduct, or the person carrying out the conduct is not criminally responsible (for example, a child, or a mentally impaired person).

This self-defence schema is elaborate and comprehensive, and contrary to popular belief, does not give unlimited power to people to defend themselves. In reality, even victims of violence are held to strict standards, and if they breach them, they can be held liable for their conduct.

In the Torrington invasion, despite the injuries suffered by the innocent Mr Blessing, his conduct may fail the self-defence second limb of reasonableness, making him potentially criminally responsible for the intruder’s death if he shot the intruder to prevent criminal trespass or to remove him committing criminal trespass.

Objections and Commentary

The prospect of Mr Blessing being charged has deeply offended a lot of the public, who think he acted completely reasonably to defend himself from an intruder violating the sanctity of his home. Many Australians are proponents of “castle law”, coined in 17^th century England, and think Mr Blessing should be afforded complete authority over defending his own home: his “castle”.

This widespread notion is only amplified by the American legal example, which takes “castle law” to its extreme. In the USA, there is a presumption that an intruder poses a lethal threat, homeowners have no duty to retreat and are sometimes even given civil or criminal immunity. Portrayals of this law through American media and television have therefore given Australians the mistaken understanding that the same principles apply here.

In line with “castle law”, the Honourable Mark Banasiak proposed a bill that provides “protection and immunity” for people defending themselves or others from intruders, which is yet to be decided on.

However, it’s resolution seems unlikely. Brendan Moylan, Nationals member for Northern Tablelands, similarly proposed a looser self-defence law, but it was declined. He suggested that NSW build on the UK’s “castle law” approach, where a householder is protected unless the force used was “grossly disproportionate” – not just unreasonable – but the Government essentially stated that existing laws were already sufficient.

These decisions are supported by the critics of ‘castle law’, who cite how most break-and-enter offenders are young people that eventually leave crime behind as they mature. As such, they are concerned that ‘castle law’ would make it legal to kill an intruding child before they ever have a chance to turn things around, as statistics prove they likely may.

The debate around self-defence and ‘castle law’ will surely develop as home invasion continues occurring across Australia, and the legal landscape may develop alongside it.