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In the criminal law of Australia, self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive. For the general theory, see the theory of self-defence.
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In the South Australian Court of Criminal Appeal in R v Howe (1958) SASR 95, Mason J formulated six propositions on the law of self-defence were accepted as a model direction on self-defence in murder trials. Thus, a full acquittal was achieved if the jury found that the accused had reasonably believed they were threatened with death or serious bodily harm and, if so, that the force used was reasonably proportionate to the perceived danger. In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 the victim rented a unit from the defendant. The defendant became increasingly annoyed with the victim who kept leaving the security gates of the unit unlocked. After one heated exchange, the defendant was stabbed by the tenant. The defendant, fearing that the tenant was about to get a gun from his car, rushed off and got his shotgun. The defendant returned, and shot and killed the tenant. The majority of the High Court said at 661:
In Conlon (1993) BFW 709 the accused used a shotgun to repel two trespassers whom he believed were stealing his cannabis plants. His belief was affected by drunkenness and a schizoid personality disorder which were relevant to determine whether the Crown had proved that he had not acted in self defence: specifically whether he believed that it was necessary to do what he did and whether that was a reasonable belief. This question seems advantageous to the defence because it tests whether the belief is reasonable to the accused (a subjective test), not reasonable to the reasonable person (objective test).
Under South Australian law, the general defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's life, and s15A(1) for defending property, subject to a hybrid test, i.e. the defendant honestly believed the threat to be imminent and made an objectively reasonable and proportionate response to the circumstances as the accused subjectively perceived them.
No 28 of 2003—Criminal Law Consolidation (Self Defence) Amendment Act 2003 [1] In July 2003, the Rann Government (SA) introduced laws allowing householders to use "whatever force they deem necessary" when confronted with a home invader. Householders who kill or injure a home invader escape prosecution provided they can prove they had a genuine belief that it was necessary to do so to protect themselves or their family. The law was strongly opposed by then-Director of Public Prosecutions Paul Rofe, QC, and lawyer Marie Shaw, who is now a District Court Judge. [2]
The rationale of the defence recognises that the degree of culpability normally associated with murder may be missing. In the High Court case of Viro v The Queen (1978) 141 CLR 88 Aickin J said at 180:
The defence was first recognised in the common law in R v McKay (1957) VR 560 where a farmer shot and fatally wounded a chicken thief, and confirmed in R v Howe (1958) SASR 95 where Mayo J held at 121-122:
This mitigatory defence was abolished in Zecevic v Director of Public Prosecutions which expressed the view that provocation should be the alternative considered. The defence was re-introduced in statutory form in South Australia in 1991, revised in 1997. The Criminal Law Consolidation Act 1935 (SA) s15 now reads:
s15A extends the partial defence to circumstances where the accused had applied excessive force in killing the deceased but had genuinely believed the force to be necessary and reasonable:
In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act 1900 (NSW). Section 421 states:
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
Unlike South Australian law, s420 of the NSW Crimes Act explicitly states that self-defence is not available as a defence to murder if death is inflicted to prevent criminal trespass.
In November 2005, pursuant to recommendations from the Law Reform Commission for Victoria, the Victorian legislature introduced new laws regarding self defence. Among them, a new offence of defensive homicide was created: where the accused's belief in the need for the force applied in self-defence was unreasonable, s/he may be convicted of an offence less serious than murder.
Self Defence [1] Criminal Law Consolidation (Self Defence) Amendment Act 2003 [2] 2003 SA Law change article[3]