Self-defence

Question 1

Legislation

Answer 1

The justification for using force in defence of oneself and other people is set
out in s48 of the Crimes Act 1961:

48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.

Question 2

Initial need to use force

Answer 2

The test is subjective as to the initial need to use force in self-defence. Force
may possibly be used before any actual bodily harm or threat is received,
merely to escape from or break out of a threatening or dangerous situation

Question 3

Subjective objective test

Answer 3

Once the defendant has decided that use of force was required (a subjective
view of the circumstances as the defendant believed them), Section 48 then
introduces a test of reasonableness which involves an objective view as to
the degree and manner of the force used.

Question 4

Degree of force used

Answer 4

The degree of force permitted is tested initially under the following
subjective criteria:

• What are the circumstances that the defendant genuinely believes exist
  (whether or not it is a mistaken belief)?
• Do you accept that the defendant genuinely believes those facts?
• Is the force used reasonable in the circumstances believed to exist?

Question 5

Force must be used for defence only

Answer 5

It is important that the force was used for the purpose of defending the
defendant or another person. If the force used is clearly unreasonable, then
the liability of excessive force may arise under s62 of the Crimes Act 1961.

Question 6

Judge to decide evidential threshold

Answer 6

The judge decides whether evidence that could be the basis for self-defence
under s48 of the Crimes Act 1961 is fit to be left to the jury. Self-defence
should be put to the jury unless it would be impossible for the jury to
entertain a reasonable doubt that the defendant had acted in the defence of
him or herself or another within the terms of s48.

Question 7

Pre-emptive strike

Answer 7

It is possible for self-defence to be raised as a defence, even if the defendant
has used a pre-emptive strike against the victim.

In the case R v Ranger42 the defendant had stabbed her de facto in the
shoulder with sufficient force to kill him. She said at her trial that they had
an argument, he had hit her and then threatened to kill her and her son, and
had reached under the bed where he kept his guns.

She escaped from the bedroom and went to the kitchen. She returned with a
knife and then stabbed him in the bedroom. At this stage he did not have a
gun in his possession. However there was evidence that he did store his guns
under the bed.

The Court found that “if this defendant did really think that the lives of
herself and her son were in peril because of the deceased, enraged after the
struggle, might attempt to shoot them with a rifle near at hand, then it would
be going too far, we think, to say that the jury could not entertain a
reasonable doubt as to whether a pre-emptive strike with a knife would be
reasonable force in all the circumstances.”