Criminal Law News & Current Affairs

By Jane Carey


Self-defence: When do you cross the line?

How far can you go to defend yourself? Jane Carey looks further into the issue of self-defence.

At some point in your life you will probably face a time when either you or someone you know are at risk of harm and you need to react to stop the harm. It may be when you are walking home from a party and come across an aggressive drunk. You may act in self-defence at home to stop your partner from harming you or your children. You may be outside a nightclub trying to stop someone from assaulting your mate. Someone may threaten to harm you, your dog, your car, your house. The list is endless.

So what can you do in self-defence if you or someone else is attacked? The simple, and frustrating answer is that it depends on the circumstances. The problem for lawyers, judges and importantly, the community, is that the rules on what is and is not self-defence can easily become blurred.

This test is complicated and the truth is, experts can struggle with it. So it is no surprise that recent media attention on the test for self-defence has sparked a widespread debate in the community.

The legal test for self-defence in NSW and ACT comes from case law. An accused person does not have to prove that they acted in self-defence, the onus is on the prosecution to disprove that it was not self-defence. In summary, the test is:

  1. Did the accused believe on reasonable grounds that it was necessary to do what they did?; and
  2. Were there reasonable grounds for that belief?

This test is further complicated where an accused is intoxicated.

The ACT also has a different test for self-defence set out in section 42 of the Criminal Code 2002 (ACT) for certain offences. The Code test adds an element of proportionality, that is, was the accused’s conduct a “reasonable response”. The Code has tried to simplify the test but it does not apply to many older offences such as common assault. The confusion has hardly been resolved.

The legal test for self-defence has been brought into the spotlight by recent cases in New South Wales. Benjamin Batterham has been charged with the murder of a man who allegedly broke into Mr Batterham’s home. Nou Loeung, labelled as a “white knight”, has also been charged for helping his neighbour who was fearful of her ex-boyfriend. Many people support the actions taken by the two men charged with murder and believe people should be able to go as far as kill someone if necessary to protect themselves. Others are pushing for the law to be changed so the test for self-defence is stricter and self-defence cannot be relied on for murder.

It is hoped the current cases in NSW prompts both the NSW legislature to clearly articulate the test for self-defence within statute, and the ACT legislature to apply the Code test to all offences. Without such clear guidance, how can the members of the community be expected to know whether their conduct in a dangerous situation is lawful or not?

In the absence of any clear guidance from the law or the courts on what you can do in self-defence, that leaves using your common sense when you or someone else is in danger.



Jane Carey, Lawyer