Self Defence

6th Jun 2019

NOT GUILTY when acting in self-defence

Be peaceful, be courteous, obey the law, respect everyone; but if someone puts his hand on you, send him to the cemetery – Malcolm X

Sending someone to the cemetery in self-defence can legitimately occur in NSW but not under the circumstances described by Malcolm X.

You are entitled to defend yourself or another person and protect property. A person may prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. You are entitled to prevent others entering or remaining upon your land or premises who have no right to be there.

To successfully raise self-defence, you must believe your conduct is necessary and objectively amounts to a reasonable response to the circumstances confronting the person who seeks to avoid criminal responsibility by raising self-defence.

Raising self-defence generally avoids criminal responsibility unless the prosecution proves beyond reasonable doubt that the conduct was in breach of the criminal law and not in self-defence. Self-defence does not permit a person to kill another in defence of property or in the course of removing someone from your property or premises.

Shooting an intruder during a home invasion may constitute excessive force which cancels out self defence. Shooting and killing an armed intruder who threatened you or your family may well be a justified response satisfying self-defence requirements. A farmer who shoots and kills a thief in the course of loading his prize Angus bull onto a truck would not avoid criminal responsibility. A less drastic response such as preventing the truck from leaving is the legally preferred option.

The safe course is to avoid responding in a way which causes death or serious injury. The best option is always to call the police and let them deal with the problem.

Chris Leahy

General Counsel Liston Legal