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18TH CENTURY LIVING HISTORY IN AUSTRALIA.

Sunday, 30 December 2012

Self Defense Laws NSW.

I was told many years ago by the police that in order to defend myself with a gun, I must already have been shot. This meant that (a) I was defending myself against an aggressor using a gun, and (b) he had already fired at me and hit me. Their reasoning was that I needed proof that my life was in danger, and that I had no alternative but to use a gun in my defense. I was about 30 years of age then, so my age may have had some bearing in a self-defense issue. I am no longer a young man, and it seems this does carry some weight when defending yourself in court regarding the shooting of a person in self-defense. I here enclose information on the legality of self-defense in NSW Australia. 


Self defence law NSW
In any assault type offence you can raise self defence as an issue in your case. If the court accepts that you were acting in self defence, the court will dismiss the charge against you. If you are going to defend a case relying on self defence you need to know the law relating to self defence. The self defence laws in NSW are  found in Part 11 Division 3 of the Crimes Act 1900.
Section 418 of the Crimes Act 1900 outlines when self defence is available.
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only 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.
Raising self defence and who has to prove what
An accused only needs to raise self defence as an issue in their case. The prosecution then has to prove that the accused was not acting in self defence beyond a reasonable doubt.
The prosecution must show either:
·         That the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or;
·         That what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
More detailed information about the self defence laws in NSW
The information contained below involves complex legal principles. If you do not have a good knowledge of the law you may have difficulty understanding the principles. If you need assistance, please call or email us.
R v Kirstain William Katarzynski
Facts for a defence of self defence
The deceased was shot by the accused three times to the torso at a Hotel in Liverpool. There was no issue that the accused committed the act which caused the death of the deceased. The prosecution conceded that there was a real possibility that when the accused shot the deceased he was acting in his own self defence.
Principles for a defence of self defence
There are two questions to be answered by the Court when self defence is raised.
·         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.
The first question is determined by a completely subjective point of view considering the personal characteristics of the accused at the time they carried out the conduct.
The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed they faced.
The accused need not have reasonable grounds for their belief that it was necessary to act in the way they did in order to defend themselves as the common law required. It is sufficient if the accused genuinely holds that belief.
The jury is not assessing the response of the reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury.
Intoxication is only relevant to an assessment of the belief held by the accused as to what conduct was necessary in his self defence and as to the circumstances perceived by the accused (The first question)
One matter that must be irrelevant to an assessment of the reasonableness of the accused's response (second question) is his or her state of sobriety.


1 comment:

A traveller in time said...

Good public service information Keith!