Review of the Law Relating to Self-defence: Tasmania Law Reform Institute Issues Paper No 20

In September 2011, the Director of Public Prosecutions wrote to the Attorney-General to raise concerns that the current Tasmanian law on self-defence, as contained in s 46 of the Criminal Code (Tas), was too lenient and was out of step with modern standards. In November 2012, the Attorney- General requested that the Tasmania Law Reform Institute conduct a far-reaching examination of the law in Tasmania relating to self-defence and provide advice as to whether the law should be amended.

In relation to self-defence, this Issues Paper considers whether the current law of self-defence in Tasmania should be retained or whether any amendments should be made to the existing law. It considers the circumstances in which a person is lawfully entitled to use force (including lethal force) in defence of themselves or another person. In cases where the accused’s perception of the situation corresponds with the actual situation, this may appear a relatively intuitive and straightforward assessment. However, greater difficulties arise when there is a difference between the actual circumstances and the circumstances as the accused saw them. There is scope for considerable debate about the extent to which a person can rely on a mistaken belief for the purposes of self-defence, and whether the reason for the mistake has a role to play in making this assessment. This is the particular concern addressed in this Paper. It considers whether a person should be able to rely on:

• a mistake that results from a delusion arising from a mental illness;
• a mistake that was a result of psychological factors personal to the accused that meant that they were more sensitive to threats of danger than the normal person; or
• a mistake that arises from self-induced intoxication.

The Paper also considers whether it is desirable to ensure consistency between the defence of selfdefence and other defences such as prevention of certain crimes and defence of dwelling-house. To this end, it examines issues that arise in relation to defence of property, and the special status the home enjoys as a place of sanctuary. It considers whether the defences of prevention of crime in s 39 and defence of dwelling-house in s 40 of the Criminal Code might more appropriately be dealt with in a consolidated defence provision or whether the defences involve unique considerations that warrant a stand-alone provision.