(08) 9278 2575Self-Defence
The legal defence of self-defence can be raised in various criminal cases where a person has used force to protect themselves, their property, or another individual from harm.
Below we outline the defence of 'Self-Defence' including elements of the defence, limitations and excessive force.
Self-defence under section 248 of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a complete legal defence for any person charged with an offence under Part V of the Criminal Code Act Compilation Act 1913 WA.
Self-defence sets out when a ‘harmful act’, including killing someone, may be justified as an act of self-defence. The following paragraphs outline the meaning of acting in self-defence, its core elements and the limits placed on raising the defence under WA law.
What Constitutes a ‘Harmful Act’ In Self-Defence?
Self-defence is bound up in the concept of a “harmful act”. The harmful act is relevant to both the victim and the accused. The accused must have at least anticipated a harmful act from another before the issue of self-defence can arise. If there is a harmful act or the accused anticipates a harmful act being done to them or another person, then the accused's own harmful act, done in response, will be lawful if the elements for self-defence (set out below) are satisfied.
What Are the Elements of Self-Defence?
Under section 248(4) of the Code, a harmful act will be lawfully justified as an act in self-defence if:
- The accused believed that their actions constituting the alleged offence were necessary to defend themselves or another person from a harmful act. The anticipated harmful act need not be imminent; and
- The accused’s actions were a reasonable response by the accused in the circumstances as the accused believed them to be. This subjective belief must reflect the person's perspective at the time of the act; and
- There must be reasonable grounds for the person’s belief in the reasonableness of the response. This adds an objective layer to the defence, as the court must find that a reasonable person in the same situation would have held similar beliefs.
The defence of self-defence, therefore, encompasses both subjective and objective elements which must all be satisfied. For example, if a person, ‘A’, genuinely believes that another person ‘B’ is going to assault him leading “A” to punch ‘B’, this would satisfy the first two elements of the offence of genuine belief and a reasonable response. However, if for example ‘A’ only believes this because ‘B’ is dressed in dark clothing and had tattoos, this would not constitute reasonable grounds for A’s belief and the claim of self-defence would fail on the third, objective element.
Self-defence is a complete defence. If properly raised by the evidence in a trial and the prosecution fail to disprove (or negate) the evidence, it results in a finding of not guilty and a judgment of acquittal.
Unreasonable Killing and Self-Defence
In circumstances where the death of the victim has occurred and where the court finds that the accused believed that their actions were necessary for self-defence but where the court finds that the accused’s actions were not a reasonable response in the circumstances perceived by the accused, the appropriate verdict is manslaughter.
Essentially in these circumstances, the court acknowledges the self-defence claim but deems the accused's response to be excessive.
Limitations on Self-Defence
Self-defence cannot be raised where the harmful act is done to defend against a lawful act. This is outlined under section 248(5) of the Code. For example, an individual cannot claim self-defence if they are resisting lawful conduct, such as a police officer acting within their legal authority in arresting someone.
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