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
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.
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.
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
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.
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.
