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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4135 ..

MR STEFANIAK (continuing):

(iv) to prevent criminal trespass to land or premises; or

(v) to remove from land or premises a person committing criminal trespass; and

Paragraph (b) of subclause (2) is crucial. It states:

the conduct is a reasonable response in the circumstances as the person perceives them.

So basically that subclause reads, "A person carries out conduct in self-defence only if the conduct is a reasonable response in the circumstances as the person perceives them."That has been a tried and true test, standard, which has been applied in our courts for many decades. There is a lot of case law in relation to that. It is something that courts from time to time look at.

This bill seeks to add an additional subsection which, I again would submit, is not necessary. Subclause (3) states:

However, the person does not carry out conduct in self-defence if-

(a) the person uses force that involves the intentional infliction of death or really serious injury-

(i) to protect property; or

(ii) to prevent criminal trespass; or

(iii) to remove a person committing criminal trespass; or

I will come back to that. I don't have a problem with paragraph (b) of subclause (3), which reads:

the person is responding to lawful conduct that the person knows is lawful.

If my amendment is successful, subclause (3) would read, "However, the person does not carry out conduct in self-defence if the person is responding to lawful conduct that the person knows is lawful."In other words, a lawful arrest by a police officer. Obviously, someone could not say they were acting in self-defence if they resisted or tried to interfere in such a circumstance.

As I said, I don't think we need paragraph (a) of subclause (3). The law is quite clear and has been used often in respect of 42 (2) (b). The scrutiny report makes a number of comments in relation to this, and I will read the relevant part. It states:

The test in subclause 42(2) is twofold: first, the person must subjectively believe that their conduct is necessary for an objective stated in para (a) (such as, (i) to "defend himself or herself or someone else", and (iv) "to prevent criminal trespass to land or premises"), and secondly, that the person's response is objectively a "reasonable response in the circumstances as the person perceives them". (This second arm of the test appears to require the fact-finder (the jury judge or the judge, as appropriate) to take a view on what it was that the defendant perceived the circumstances facing him or her to be, and then to assess what a reasonable person so placed would do.)

There have been a number of cases, as I said, in relation to that. I can recall a case in South Australia not all that long ago where an 84-year-old man felt incredibly threatened when a couple of very fit 20-year-olds broke into his garage. He killed one of them with

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