Raising self-defence in criminal cases
RAISING SELF-DEFENCE IN CRIMINAL CASES
Have you been the subject of an assault in a pub and all you did was defend yourself? Or even maybe your girlfriend from the attack? Perhaps it may be that someone damaged your property and you felt the need to defend your property? In the circumstances of defending yourself, the real “offender” came out second best and sustained injuries and during police investigation you were the one who was charged with a criminal offence?
Often it is the case that a police alleged one party is the aggressor but it turns out they were not, and they merely were acting in self defence.
Don’t be disheartened. You may raise a defence of self-defence at law.
But what exactly is the law in relation to the self-defence? How does it apply in NSW Courts? Let’s face though, it if you’re not a lawyer you should first get a legal opinion before you exclude self-defence as an option for a defence in your criminal case.
Self-defence is often misunderstood by society, and often lawyers.
In NSW, a person is not responsible for a criminal offence if the person carries out the conduct constituting the offence in “self-defence”.
WHAT IS SELF-DEFENCE IN NSW?
Self-defence laws in NSW are found in Part 11 Division 3 of the Crimes Act 1900 persuant to Section 418 and can be summarised as follows;
A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment or protect property).
In other words, the defence can only be established if the conduct was both “reasonable” and “necessary”. These terms have been referred to in a number of case law. For example, in R v Katarzynksi  NSWC 613 the Court found that the Finder of fact needs to determine two questions:
Is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself?; and
If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?
If a defendant raises a defence under section 418 on the balance of possibilities, the defence is taken to have been established unless the prosecution disproves it.
SCOPES/LIMITS ON SELF-DEFENCE
What is oftentimes misunderstood by clients is the scope of when self-defence can be raised. For example, most people believe self-defence stops with the defence of themselves against an attack however this is not always the case. For example, self-defence may apply when you come to the defence of another by way of rescue, or for the purposes of protecting property or for the purposes of prevention of crime, and even against arrest (if it is believed to be unlawful at the time).
Another misunderstood fact about self-defence are the limits on what can be characterised as self-defence. For example, so long as the defence used is reasonable and proportionate there is “No duty to retreat” and one “may stand their ground” and at times there is lawful authority which states that even “pre-emptive force” can be argued as self-defence (if the right circumstances exist).
THE NO DUTY TO RETREAT
The “stand your ground” and “pre-emptive use of force” approach to self-defence is one in NSW which has been influenced by the US. In particular the “Stand your ground form of self-defence” generally sanctions “self-help” by removing any requirement of retreat. It permits a person who is threatened or attacked to stand their ground and claim self-defence even where an avenue of retreat or other means of avoiding the conflict was safely available. The basis is that different types of people respond to the flight or fight syndrome in different ways.
For more information on self-defence please visit our dedicated defences page.
CASE STUDY 1
Our client, a former boxer, was acquitted of Affray having punched and kicked the victim in the early hours of the morning in Kings Cross. CCTV evidence showed numerous individuals involved in an attack on the victim.
Our client was clearly seen to assault the victim, knocking him out in the process. In terms of the case, our Principal Lawyer Michael Moussa was able to raise self-defence. This was done by successfully leading evidence from three witnesses (as well as cross examining the alleged victim and police officers at the scene). Through proper examination of the testimonies of these eye witnesses it was discovered that the CCTV footage did not tell the whole story. In particular the part missing was how the altercation began and the conduct of the alleged victim. In arguing self-defence requires “no duty of retreat” and even that “pre-emptive use of force can amount to self-defence” our client was acquitted of the charge. In particular, it was found that the victim was extremely drunk and abusive to several women in the vicinity and although not shown on CCTV the witnesses all pointed to the victim as being the one who started the fight, and whilst during the fight the one who made continual attempts and advances to keep the fight going oftentimes following and grabbing at our client and his body and legs. The Court held that our client did use proportional self-defence, came to the rescue of the girls and it was reasonable and proportionate what he did even though the CCTV did not show it. As such he was acquitted of the Affray charge.
CASE STUDY 2
Mr Michael Moussa, Principal Lawyer of National Criminal Lawyers appeared for the brother who was charged with reckless wounding. Reckless wounding carries a maximum penalty of 7 years imprisonment.
The facts presented by the police were as follows:
On 29 May 2017, the victim and the accused were present in their residential home. The victim let the family cats into the house where they have entered the accused’s bedroom and urinated on his bed.
The accused confronted the victim about the cats whilst the victim was in the kitchen washing dishes.
The accused then took hold of a red coloured swiss army knife that was located on the shelf within the accused’s bedroom and in a downward swinging motion, has cut the victim causing a 10cm wound to the victim’s right forearm.
Mr Moussa conferenced the Accused and it became apparent that the police omitted a very important piece to the puzzle. Prior to the Accused pulling out a knife and striking the complainant, it was said that the complainant first came at the Accused with a sharpening Stone.
Further inquiries were made with the parents and siblings of the accused who advised Mr Moussa that the victim had a history of violence against family members. Further, they stated the accused was a gentle and well-nurtured fellow who had never been in trouble or a fight. He was also in his final year of a law degree which meant serious consequences to his career and his future. The family told Mr Moussa that they did not want either brother to get in trouble and they were certain the wounding occurred when the accused was in fear for his life.
Armed with this knowledge, Mr Moussa wrote to the police requesting a photo of the stone. The stone is described (a knife sharpening stone), approximately 30cm in width and weighs approximately 10kg was a weapon that could inflict serious injury if used against the accused.
This piece of evidence, now available to the defence, combined with the information provided by family members meant Mr Moussa could raise self-defence.
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 and the conduct is a reasonable response in the circumstances as he perceives them.
The test for self-defence poses a two-limb test. The first limb of the test is involves considering what the Accused person was actually thinking. The second limb of the test is determined by whether the conduct of the Accused person is a reasonable response to the circumstances as he perceived them. The second limb was the most difficult as it involved a stabbing. Most judicial officers would argue that this conduct may be an “unreasonable” response, or disproportionate. Mr Moussa thought it was necessary to subpoena further material about the complainant’s medical record which showed he was aggressive and at times unable to control his actions.
After months of fierce advocacy by Mr Moussa on behalf of the family, police agreed to withdraw the charges. The family rejoiced at the news and are looking forward to moving on with their lives after a very difficult year.