Crimes Amendment (Self-defence) Act 2001 (NSW)

An Act 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.

1Name of Act

This Act is the Crimes Amendment (Self-defence) Act 2001.

2Commencement

This Act commences on a day to be appointed by proclamation.

3Amendment of Crimes Act 1900 No 40

The Crimes Act 1900 is amended as set out in Schedule 1.

4Consequential repeals(1)

The following Acts are repealed:

• •

  Home Invasion (Occupants Protection) Act 1998 No 109

• •

  Workplace (Occupants Protection) Act 2001 No 6

(2)

The repeal of those Acts does not reverse the declared public policy of the State that its citizens have a right to enjoy safety from attack within dwelling-houses from intruders, or from suspected offenders while present at a workplace.

Schedule 1Amendments

(Section 3)

[1]Section 18 Murder and manslaughter defined

Omit “, or in his or her own defence” from section 18 (2) (b).

[2]Part 11, heading

Omit the heading to Part 11. Insert instead:

Part 11Criminal responsibility—defencesDivision 1Preliminary[3]Part 11, Division 2, heading

Insert before section 417:

[4]Part 11, Division 3

Insert after section 417:

Division 3Self-defence418Self-defence—when available(1)

A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)

A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

• (a)

  to defend himself or herself or another person, or

• (b)

  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

• (c)

  to protect property from unlawful taking, destruction, damage or interference, or

• (d)

  to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

419Self-defence—onus of proof

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

420Self-defence—not available if death inflicted to protect property or trespass to property

This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:

• (a)

  to protect property, or

• (b)

  to prevent criminal trespass or to remove a person committing criminal trespass.

421Self-defence—excessive force that inflicts death(1)

This section applies if:

• (a)

  the person uses force that involves the intentional or reckless infliction of death, and

• (b)

  the conduct is not a reasonable response in the circumstances as he or she perceives them,

but the person believes the conduct is necessary:

• (c)

  to defend himself or herself or another person, or

• (d)

  to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

(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.

422Self-defence—response to lawful conduct

This Division is not excluded merely because:

• (a)

  the conduct to which the person responds is lawful, or

• (b)

  the other person carrying out the conduct to which the person responds is not criminally responsible for it.

423Offences to which Division applies(1)

This Division applies to offences committed before or after the commencement of this Division, except as provided by this section.

(2)

This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.