Key Takeaway

Section 418 of the Crimes Act 1900 (NSW) allows you to do whatever you believe is necessary to protect yourself, provided your response (in self-defence) was reasonable in the circumstances perceived by you at the time.

Self-defence can apply to a range of assault offences, including common assault, assault occasioning actual bodily harm, assault occasioning grievous bodily harm, wounding or murder charges.

Can You Act in Self Defence Even if Intoxicated?

Short answer is yes.

The law on self-defence in NSW was also reflected in the popular case of R v Katarzynski [2002] NSWSC 613.

That case involved Mr. Katarzynski, who was charged with murder for shooting and killing the victim as a result of various altercations between the two in a hotel in 2001.

Mr. Katarzynski agreed to shooting the victim dead, however, the issue in that case was, whether his state of intoxication effected his defence of self defence.

The court basically said, that there are two main tests to be met, in order to make out self defence under the law:

  1. If it was reasonably possible that you believed it was necessary to do what you did to protect yourself in self-defence; and
  2. If it was reasonably possible that what you did was a reasonable response to the circumstances perceived by you at the time.

It’s important to understand that, the test isn’t whether your response was reasonable to the circumstances that would be perceived by the hypothetical reasonable person. Instead, it’s the circumstances you perceived at the time.

To someone else, who was not in your shoes may well consider your actions as excessive- this isn’t relevant in the test for self-defence to succeed. However, your response or conduct may well have been considered a proportionate response based on certain circumstances you perceived at the time.

Intoxication Effects Self Defence in Two Ways

  1. Your intoxication from alcohol or drugs is relevant to arguing self-defence in court. For example, where your intoxication may well have contributed to your belief that it was necessary for you to do what you did at the time, to protect yourself.
  2. Intoxication is also relevant, for example, when the court is considering the circumstances you perceived, which led you to forming your belief (that it was necessary to act that way).

Importantly, intoxication cannot be taken into account when considering whether your response to those circumstances (which you believed) was reasonable.

Factors Relevant When Assessing your State of Mind and Perception

When assessing the circumstances perceived by you, in order for the court to make an assessment of whether your response was reasonable, the Court will look into your personal attributes, and surrounding physical circumstances.

Those attributes include:

  • Your age
  • State of health
  • Your gender
  • Whether your path to leave or exit the area safely was obstructed by anything or anyone at the time

Once self defence is raised, the duty is on the prosecution to negate it beyond reasonable doubt. This means, that self defence will succeed if the prosecutor is unable to prove beyond reasonable doubt, that you didn’t believe it was necessary to do what you did in self-defence, or that there was no reasonable likelihood that your actions were a reasonable response to the circumstances perceived by you at the time.

The Case of Abdallah v R [2016] NSWCCA 34

Mr. Abdallah and the victim met at a gym in Rockdale in 2010. The victim was a very high up member of the Lone Wolves Motorcycle Club.

Mr. Abdallah was charged with murdering the victim after shooting him 6 times, including the head, neck, and a shot into his back.

He argued self defence in his District Court trial, and was found guilty of murder. He then unsuccessfully appealed to the Supreme Court.

The Court found that he did not act in self defence.

The Self Defence Argument

Mr. Abdallah became familiar with the victim as someone who uses violence whenever he would perceive grievances with others. Further to this, leading up to the shooting that caused the victim’s death, Mr. Abdallah described the following events:

  • There were rumours that he owed the victim money. This was untrue, and Mr. Abdallah made numerous attempts to contact the victim about this to clarify it.
  • He met the victim at his unit on 12 December 2011. The victim was aggressive, threatened to kill him, and punched his face. Mr. Abdallah responded by kicking his head which caused a fracture to the victim. Mr. Abdallah thereafter became concerned the victim will seek revenge.
  • The next day, a similar looking car to Mr. Abdallah’s was shot at near his local place. Mr. Abdallah feared this meant that he will be shot if he is ever seen by the victim.
  • Abdallah then purchased a handgun, and placed it under the seat of his car.
  • Abdallah continued hearing, from other people, that the victim was after him.
  • On 3 January 2012, Mr. Abdallah’s girlfriend, who was a friend of the victim’s girlfriend, had told Mr. Abdallah that the victim showed her a gun, and said that “it was for your boyfriend.”
  • Abdallah arranged to meet the victim, at his unit, in an attempt to try to resolve the situation from getting worse. When he reached the victim’s unit, parked his car outside, he was approached by the victim in addition to 2 other men.
  • At that stage, Mr. Abdallah saw the victim holding a gun in his hand, who then placed it in his pocket. The other two men were carrying other weapons, including a knife.
  • When the victim and 2 other men approached, they surrounded Mr. Abdallah. One of the other men hit Mr. Abdallah to his head which caused him to fall to the ground. Mr. Abdallah covered his face and head while being punched and kicked on the ground.
  • At that moment, Mr. Abdallah heard someone say, “shoot him”. Mr. Abdallah looked up and heard the victim say, “your fucking dead”. He then saw the victim reach towards his pocket.
  • In that moment, Mr. Abdallah quickly moved to the driver side door of his car, retrieved his gun from under the seat, went over to the victim, extended his arm and started shooting directly at the victim’s head from a very close proximity.
  • One of the shots were fired into the back of the victim’s neck from a distance of about 10-30cm. Some of the other shots were fired from distances ranging between 3 to 30cm away from the victim. Interestingly, another wound was found to be caused from being shot to the victim’s mid-back area.

Why Self Defence Was Unsuccessful

For the following reasons, the Court of Criminal Appeal found that Mr. Abdallah did not believe it was necessary to shoot the victim to protect himself in self-defence:

  • Abdallah’s version is implausible because, “if he had believed that the deceased was reaching for a gun, with the intention of shooting him, it’s most unlikely that, having retrieved his own gun, he would have emerged from behind the car door, stood up, advanced towards the deceased, but not commenced firing until the gun in his outstretched hand made contact with the left side of the deceased’s head. He was unlikely to have exposed himself unnecessarily to the risk of being shot or risk of being attacked again by coming too close to any of the 3 men.”
  • On Mr. Abdallah’s version, if the victim intended to shoot Mr. Abdallah, the victim would’ve had enough time to take out his gun from his pocket, and shoot before Mr. Abdallah could even grab the gun from under the car seat and hold it next to the victim’s head.
  • In the same context, the victim would not have likely stayed facing towards Mr. Abdallah, all the while, Mr. Abdallah retrieved his gun from under his car seat, and then approached the victim, and extended his hand containing the gun, next to the victim’s head.
  • The firing of 6 shots- 2 shots at point blank and at very close proximity to the victim’s head- suggests a strong intention to kill. Especially in circumstances the victim appeared to take no evasive action.
Published on 28/01/2018

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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