Self-defence is a well-established common law defence to any charge that involves the unlawful use of force. It is based on the principle that individuals cannot be expected to remain passive in the face of a violent assault or a threatened violent assault. The law recognizes that people should not be held criminally responsible for defending themselves provided their response was reasonable. This page outlines the defence of self-defence in the Northern Territory.
Legislation
In the NT, the defence of self-defence has been codified in section 43BD of the Criminal Code 1983.
Under that provision, a person is not guilty of an offence if they did an act while believing that the act was necessary:
- in defence of themselves or of another person
- for the prevention or termination of the unlawful imprisonment of a person
- for the protection of property
- for the prevention of criminal trespass
- to remove a person who is committing criminal trespass
AND the accused person’s conduct is a reasonable response to the situation as they perceive it.
Proportionality
A person will only be found not guilty on the basis of self-defence if their actions were proportionate to the extent of the threat as they perceived it. Lethal force is only permitted in self-defence if the threat is of death or serious harm. Lesser force can be used in response to lower-level threats.
However, a person who is physically attacked is not expected to ‘weigh on a knife’s edge’ the exact level of force that is justified.
Subjecting and objective test
The test for whether the defence of self-defence is made out is partly objective and partly subjective.
The subjective part of the test is the question of whether the accused perceived that their actions were necessary in self-defence. This is a subjective question because it is based on what the accused perceived to be the case at the time of the alleged offence rather than what was actually the case. For example, if a person is threatened with what appears to be a gun and acts in self-defence, they have a defence available to them even if their attacker did not in fact have possession of a gun.
The objective part of the test is the question of whether the accused’s response was reasonable in the circumstances as they perceived them. This is an objective question because it is based on an outsider’s assessment of the accused’s conduct. For example, if an accused person believed they were being threatened with a knife and acted defensively, their behaviour would be assessed against what a reasonable person would do in self-defence if facing that threat in the same circumstances.
If the accused’s actions were not a reasonable response to the circumstances they perceived, they will not be acquitted on the basis of self-defence.
When can self-defence be relied on?
The defence can be relied on when a person is charged with an offence involving the unlawful use of force. This includes assaults and aggravated assaults, murder, manslaughter, causing serious harm and committing a violent act causing death.
When can the defence not be relied on?
A person does not have a legal defence if their conduct causes death or serious harm, and they were acting in response to trespass or in defence of property only.
A person does not have a legal defence if they act in self-defence in response to a lawful action – such as a lawful arrest.
Reverse onus
Self-defence has what is known as a ‘reverse onus’ of proof. This means that after the defence has raised the issue of self-defence, the burden of proof shifts to the prosecution to prove that the offence was not committed in self-defence.
Zecevic v DPP
The leading Australian case on self-defence is the 1987 High Court decision of Zecevic v DPP. Zecevic was charged with murder after an argument with a neighbour ended in him shooting the man dead.
The defendant was acquitted on the basis that he acted in self-defence as he believed that the neighbour had a knife and a shotgun.
In that case, the court expressed the test for self-defence thus:
“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.”
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