Public Defenders

Crimes Amendment (Self Defence) Act 2001


This paper was written by Chrissa Loukas

The Crimes Amendment (Self Defence) Act2001 commenced on 22 February 2002.


The object of this Act is to amend the Crimes Act 1900 to codify the law with respect to self-defence and to repeal the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001.

The codified provisions relating to self-defence will apply to all trials commenced after the commencement of the Act, whether the offence was committed before or after that commencement.

The contents of the Act are drawn substantially from a model developed by the Model Criminal Code Officers Committee of the Standing Committee of the Attorney's-General.

In Zecevic v DPP (Vic) (1987) 162 CLR 645, the High Court stated:
'An explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is 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'.

The New South Wales Government, in response to community concerns, partially codified two self-defence situations - defence in the home through the Home Invasion (Occupants Protection) Act 1998 and defence in the workplace through the Workplace (Occupants Protection) Act 2001.

In the second reading speech the Attorney General refers to the fact that the Bill is drawn substantially from the Model Criminal Code and further states:
'that model removes the objective element of the test as to what the defendant perceived the danger to be. That represents the common law before the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. It means that a person who really thought he was in danger, even if he was mistaken about that perception, may be able to rely on self-defence for his actions.

The person's actions on the basis of his belief still has to be reasonable, but the belief itself is totally based on the circumstances as the person perceived them to be.'[Hansard 28.11.2001 at page 19093].

'The bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who actually believed it was necessary to do what he did to repel an attack, even if he was wrong about that perception, may seek to rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant. However, the bill contains two departures from the Model Criminal Code. The first departure is the re-introduction of the law of excessive self-defence, through proposed section 421 of the Crimes Act 1900. This was the common law position as previously stated by the High Court in Viro (1978) 141 CLR 88. It was held in that case that self-defence, which was necessary but which involved the use of excessive force causing death, would lead to a finding of manslaughter instead of murder.'[Hansard 28.11.2001 also at page 19093].

'There can be no circumstances where it is appropriate to intentionally or recklessly take a human life in the protection of property or to prevent criminal trespass, although it may be permissible to do serious bodily harm in certain circumstances if necessary and reasonable'[Hansard 28.11.2001 also at page 19093].

The Crimes Act is amended by repealing the existing heading of part 11 and inserting a new heading 'Part 11 Criminal responsibility - defences'. The new part 11, division 3, inserts six new sections. Section 418 outlines when the defence of self-defence is available. Section 419 provides that the prosecution bears the burden of proof beyond a reasonable doubt that the person did not carry out the conduct in self-defence. Section 420 provides that self-defence is not available if the use of force involves the intentional or reckless infliction of death to protect property or prevent criminal trespass or remove a person committing criminal trespass.

Section 421 relates to the situation where excessive force is used in self-defence which results in death. In such a case, if the defendant believed that his conduct was necessary even though it was excessive, the defendant is not criminally responsible for murder but is guilty of manslaughter. Section 422 relates to the application of self-defence when it is a response to lawful conduct, and section 423 is a transitional provision.

Chrissa Loukas
Public Defender
28 February 2002