FAQs

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

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage, or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass;

but the conduct is not a proportionate response to the circumstances as he or she perceives them. 

Excessive self-defence is only available as a partial defence to a charge of murder, reducing the offence to manslaughter. 

Excessive self-defence is different from self-defence, which provides a full defence to a charge of any offence. If a person establishes self-defence, they cannot be found guilty of the offence charged and must be acquitted. 

‘Self-induced intoxication’ refers to: 

1. intoxication resulting from the recreational use of a drug; and 
2. where a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug. 

‘Intoxication’ means a temporary disorder, abnormality, or impairment of the mind that results from the consumption or administration of a drug. 

‘Drug’ means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning.

Consumption of a drug is to be regarded as recreational use of the drug unless:

1. the drug is administered against the will, or without the knowledge, of the person who consumes it; or 
2. the consumption occurs accidentally; or 
3. the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or 
4. the consumption is therapeutic.

Consumption of a drug is regarded to be therapeutic if: 

1. the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or 
2. the drug is a drug of a kind available, without prescription from registered pharmacies; and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer’s instructions. 

Excessive self-defence provides a partial defence to a charge of murder. It is available when the defendant genuinely believes that their actions were reasonable for a defensive purpose, but their actions were not reasonably proportionate to the threat that they believe existed. 

Whether or not the defendant held a genuine belief is a subjective assessment and has to be assessed from the defendant’s point of view. It does not matter that the defendant’s belief was mistakenly formed or based on delusions resulting from, for example, the influence of alcohol or drugs, as long as it is established that the defendant held a genuine belief that their actions were necessary and reasonable for a defensive purpose. 

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