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A person is not criminally responsible for their conduct if the person carries out the conduct constituting the offence in self-defence. A person will be held to have carried out the conduct in self-defence if the person believes the conduct is necessary:

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

And the conduct is a reasonable response in the circumstances as he or she perceives them.

The test for self-defence poses a two-limb test to judicial officers and jurors.

The Two-Limb Test

The first limb of the test is whether there is a reasonable possibility that the Accused person believed that his or her conduct was necessary in order to defend himself or herself.

This is what is known as a subjective test. It is determined from a completely subjective point of view considering the personal characteristics of the accused at the time they carried out the conduct. In other words, it involves considering what the Accused person was actually thinking.

The second limb of the test is determined by an entirely objective assessment of the proportionality of the Accused Person’s response to the situation the accused subjectively believed they faced.

In other words was the conduct of the Accused person a reasonable response in the circumstances as he or she perceived them.

The test relates to whether the Accused person’s actions were reasonable, not to whether a reasonable man would have done the same thing.

In considering whether or not the response of the Accused person was reasonable to the situation as he or her perceived it, some factors particular to the Accused person may be taken into account.

These include the surrounding physical circumstances in which the accused acted as well as age, gender and health. Intoxication is only relevant to an assessment of the Accused person’s subjective belief as per the first limb of the test.

Once an Accused person raises self-defence, the prosecution must prove that the accused was not acting in self-defence beyond a reasonable doubt.

Other defences

Our client was charged with affray after a late night fight he was involved in outside a nightclub in Sydney City. The whole incident was captured on CCTV that was provided to the us by the police as part of the brief of evidence.

Our client insisted that he only got involved in the fight after fearing for his friend’s safety. After analysing the case thoroughly, stringently viewing every view of the CCTV footage, obtaining statements from our client’s friends, we took the case to a defended hearing at the Downing Centre Local Court in February 2011.

Our argument was that our client’s actions were lawful, in that he acted the way he did only in self defence of his friend.

After a long hearing, our client gave evidence. Ultimately Magistrate Favretto agreed that the charge should be dismissed.

Our client appeared at Camden Local Court in September 2013, before Magistrate Holdsworth.

Our client allegedly committed an unprovoked and violent attack on his father-in-law that hospitalized him for 5 days. Our client disputed that the attack had occurred in the manner that his father-in-law described it to the police . Our client’s wife gave a statement to the police which supported our client’s version of events but the police believed the victim.

Prior to court, we obtained by subpoena a Triple 0 call made by our client’s wife and obtained photos of her and our client’s injuries. The father-in-law was grilled by our senior criminal solicitor over two days in court. Our client gave his version of what occurred, claiming self defence against the charges.

The court had accepted that our client was a person of good character who was unlikely to lie or commit such a violent attack.

The Magistrate ultimately found the father-in-law was an unreliable witness. In accepting the client only struck the father-in-law twice the Magistrate found him to have held a genuine fear that he, his wife and unborn child were in danger.

As such the charge was dismissed on the basis our client acted in self-defence.