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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL LAW CONSOLIDATION (SELF DEFENCE) AMENDMENT BILL 2003

[BIL130-A.HAA]

House of Assembly No 124

[As laid on the table and read a first time, 31 March 2003]

South Australia

[Prepared by the Parliamentary Counsel]

CRIMINAL LAW CONSOLIDATION (SELF DEFENCE) AMENDMENT BILL 2003

A Bill For

An Act to amend the Criminal Law Consolidation Act 1935.

[OPC-116]


Contents

Part 1—Preliminary

1.Short title

2.Commencement

3.Amendment provisions

Part 2—Amendment of Criminal Law Consolidation Act 1935

4.Insertion of sections 15B and 15C

15B.Reasonable proportionality

15C.Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion


The Parliament of South Australia enacts as follows:


Part 1—Preliminary

Short title

1. This Act may be cited as the Criminal Law Consolidation (Self Defence) Amendment Act 2003.

Commencement

2. This Act will come into operation on a day to be fixed by proclamation.

Amendment provisions

3. In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Law Consolidation Act 1935

Insertion of sections 15B and 15C

4. After section 15A insert:

Reasonable proportionality

15B. A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.

Requirement of reasonable proportionality not to apply in case of an innocent defence against home invasion

15C. (1) This section is applicable where—

(a)the defendant genuinely believed the victim to be committing, or to have just committed, home invasion; and

(b)a relevant defence would have been available to the defendant if the defendant's conduct had been (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist (the perceived threat); and

(c)the defendant genuinely believed the conduct to be reasonably proportionate to the perceived threat; and

(d)the defendant was not (at or before the time of the alleged offence) engaged in any criminal misconduct that might have given rise to the threat or perceived threat; and

(e)the defendant's mental faculties were not, at the time of the alleged offence, substantially affected by the voluntary and non-therapeutic consumption of a drug.


(2) If a defendant establishes, on the balance of probabilities, that this section is applicable to the circumstances of his or her case, the defendant is entitled to the benefit of the relevant defence even though the defendant's conduct was not reasonably proportionate to the perceived threat.

(3) In this section—

"criminal misconduct" means conduct constituting an offence for which a penalty of imprisonment is prescribed;

"drug" means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;

"home invasion" means a serious criminal trespass committed in a place of residence;

"non-therapeutic"—consumption of a drug is to be considered non-therapeutic unless—

(a)the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or

(b)the drug is of a kind available, without prescription, from registered pharmacists, and is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions;

"relevant defence" means a defence under section 15(1) or section 15A(1).

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