Date of Award
Doctor of Philosophy (College of Law)
Schools and Centres
Professor Keith Thompson
The right to use force in self-defence is recognised by law. The idea of self-defence in criminal law history can be traced back to medieval England’s daily life and ‘the peace’ that the king was trying to establish as his contribution to the good of English society as a whole. The Crown enacted several statutes during the medieval period to ensure that those responsible for homicides were convicted, but would occasionally pardon offenders when the jury qualified their guilty decisions with self-defence explanations. But because the king did not always grant a pardon, juries developed a reputation for handing down not guilty verdicts when the jury considered that alleged offenders should be exonerated on the grounds of self-defence. The king’s statutes about homicide were passed in an effort to control juries. Those statutes are part of the story of how juries became independent triers of fact, how the role of public prosecutor was developed and how juries asserted their independence against executive overreach and criminal laws they considered draconian. That story assists understanding of how self-defence laws achieved their current complexity. In particular, that story explains the long history of jury concern about the line between murder, manslaughter and acquittal in self-defence cases.
The thesis also explains how self-defence law was developed in Australia during the 20th century and how the parliaments of the Australian states and territories responded to the continuing uncertainty caused by diversity in High Court and Privy Council opinion in homicide cases involving self-defence claims. It also analyses the effectiveness of the self-defence provisions in ss 418 and 421 of the Crimes Act 1900 (NSW) which were passed to resolve the problems that arose because of the diversity in High Court and Privy Council legal opinion. This analysis shows that the New South Wales statutory provisions have not improved clarity. Rather, they have compounded the complexity and made it nearly impossible for trial judges to give jury directions that adequately explain the relevant self-defence law in homicide cases.
The purpose of this thesis is to formulate and recommend a simple self-defence test that lay jurors in New South Wales can understand and apply in all self-defence cases, including cases that involve homicide. The intent is to make New South Wales selfdefence law simple enough that jurors can understand it without judicial explanation.
The thesis also recommends appropriate general directions that a trial judge could give any jury in a self-defence case if the recommended changes were implemented
Elmaraazey, M. (2021). Self-defence in New South Wales in its historical context: A simpler test? (Doctor of Philosophy (College of Law)). University of Notre Dame Australia. https://researchonline.nd.edu.au/theses/323