The self defence law in New South Wales (NSW) falls under Division 3 of Part 11 of the Crimes Act 1900. Section 418 of the Act provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self defence. In 2002, New South Wales reintroduced excessive self defence as s421 of the Crimes Act (NSW).
When is Self Defence Available?
To rely on the “self defence” argument, the person must have believed that their conduct was necessary:
- to defend themself or another person, or
- to prevent or terminate the unlawful deprivation of their liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage, or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing such criminal trespass.
The person’s belief must have been reasonable in the circumstances as they perceived them. This means the person should base their belief on what a reasonable person would have believed in the same situation. Moreover, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self defence.
Note: The Court will not excuse the intentional use of deadly forces that cause serious injury or death in cases of real or personal property. In determining the issue of whether the accused personally believed that his or her conduct was necessary for self-defence, the jury must consider the circumstances as the accused perceived them to be at the time.
When is Self Defence Not Available?
The rule on self defence does not apply if the person believes that the use of force that involves the intentional or reckless infliction of death only:
- to protect property, or
- to prevent criminal trespass or to remove a person committing criminal trespass.
Self Defence Weapons in NSW
Are self-defence weapons legal in New South Wales? In Australia, the law generally forbids an individual to carry or use weapons for self-defence. These are the rules in NSW:
- It is not a “genuine purpose” to possess or use a prohibited weapon for defence of oneself or to protect another person.
- A body armour vest or similar item worn over or covers any portion of the body and made for anti-ballistic purposes, such as defence against electric shocks or conducted energy weapons, is allowed for use.
The same holds true for women who use weapons to raise self-defence. With the exception of Western Australia, this is still prohibited in NSW without a current permission.
The Weapons Prohibition Act 1998
The Weapons Prohibition Act 1998 (NSW) is a piece of legislation that prohibits possessing, using, and selling certain weapons in New South Wales. The creation of the Act was in reasonable response to concerns about the increasing availability of weapons and the associated risk of violence.
This Act classifies which weapons are “prohibited weapons.” Here are some prohibited weapons that Schedule 1 of the Act enumerates:
- Flick knife
- Ballistic knife
- Sheath knife
- Butterfly knife or “balisong”
- Star knife
- Zombie knife
- Any device intended for use by a military or defence force
- Any bomb, grenade, rocket, missile, or mine
- Flame thrower
- Spear gun
- Crossbow
- Slingshot
- Saunders hunting sling
- Blow-gun or blow-pipe
- Farallon shark dart
- Dart projector
- Mace
Offence and Penalties under the Weapons Prohibition Act
The Act sets out several penalties for offences under the Act. These penalties vary depending on the specific offence. Part 4 of the Act enumerates the offences with their corresponding penalties:
Offence | Penalties |
Buying a prohibited weapon without authorised permit to possess it | 5 years imprisonment |
Purchasing a prohibited weapon from a seller who does not have an authorised permit to possess it and has failed to see the seller’s permit or knows the seller doesn’t have authority | 12 months’ imprisonment and/orAUD 5,500 fine |
Selling prohibited weapon to buyer who doesn’t have authorised permit to possess it | 14 years imprisonment |
Manufacturing a prohibited weapon without a permit | |
Possessing a digital blueprint for the manufacture of a prohibited weapon on a 3D printer or an electronic milling machine (unless authorised under a permit) | |
Possessing or using a prohibited weapon by remote control without permit | |
Selling military-style weapon to a buyer who doesn’t have authorised permit to possess it | 20 years imprisonment |
Selling military-style weapons to a buyer who doesn’t have an authorised permit to possess it and does this on at least three occasions over a consecutive 12-month period. | |
Manufacturing military-style weapon without permit | |
Possessing or using military-style weapon by remote control without permit |
It is important to note that these are just some of the penalties that authorities can impose under the Weapons Prohibition Act 1998. The actual penalty that they impose will depend on the specific circumstances of the offence. You may also get an order to pay a fine if you face conviction of an offence under the Weapons Prohibition Act 1998. The amount of the fine will depend on the specific offence.
In addition to the criminal penalties, you may be subject to other consequences if you are convicted of an offence under the Weapons Prohibition Act 1998. For example, you may be banned from possessing weapons for a period.
The Blake Davis Manslaughter
Blake Davis will serve a minimum sentence of two years and nine months in jail for the manslaughter of rapper Jett McKee, who broke into his home in 2018 brandishing a fake pistol and struck him in the face with knuckle dusters.
The jurors have thought Davis’ self-defence response, using a samurai sword to fracture Mr. McKee’s skull after his girlfriend, Hannah Quinn, chased the intruder down the street, was excessive, as seen by their conviction of manslaughter rather than murder.
Davis and his girlfriend, Hannah Quinn, were at home when McKee and another man, Daniel O’Donnell, broke in. McKee was armed with a replica gun and knuckle dusters and punched Davis in the face. Quinn chased McKee down the street, and Davis followed her with a samurai sword. Davis caught up to McKee and struck him in the head with the sword, killing him.
The court charged Davis with murder, but a jury acquitted him. However, he was found guilty of manslaughter and sentenced to five years and three months in prison. Quinn was found guilty of being an accessory after the fact to manslaughter, and she was sentenced to two years and nine months in jail.
The case of Blake Davis has raised questions about the law of self-defence in Australia. Davis’s lawyers argued that he had acted in self-defence, as he believed McKee would kill him. However, the jury found that Davis’s use of force was excessive, and that he had not acted in reasonable self-defence.
Seek the Advice of a Criminal Defence Lawyer
Criminal defence lawyers can help in self-defence cases in several ways, including:
- Advising on the law of self-defence
- Gathering evidence
- Negotiating with the prosecution
- Preparing for trial
- Presenting the case to the court
If an accused believed that they acted in self-defence and have reasonable grounds to defend your actions, it is crucial to speak to a lawyer as soon as possible. JB Solicitors can help you understand your legal rights and build a strong defence.
Contact us today.