Self Defence in Australian Law

Most of us will wil­lin­g­ly go through life without being vic­tims of a cri­mi­nal attack on our­sel­ves or our pro­per­ty. Howe­ver, the­re will also be a signi­fi­cant num­ber of peop­le who will unfor­tu­n­a­te­ly be faced with a situa­ti­on whe­re ano­t­her par­ty will attempt to cau­se per­so­nal harm or inju­ry to pro­per­ty. The law reco­gni­zes that in such cases, self-pre­ser­va­ti­on of self or pro­per­ty is per­mit­ted, giving way to the defen­se of self-defen­se. In R. v. Con­lon, the defen­dant used a shot­gun to fend off two intru­ders who he clai­med were ste­aling his can­na­bis plants. His faith was mar­ked by drun­ken­ness and schi­zo­id per­so­na­li­ty dis­or­der, which were rele­vant to deter­mi­ning whe­ther the Crown had pro­ved that he had not acted in self-defence, par­ti­cu­lar­ly whe­ther he belie­ved it was necessa­ry to do what he was doing, and whe­ther it was a rea­son­ab­le belief. This ques­ti­on appears to be bene­fi­cial to the defence becau­se it exami­nes whe­ther the creed is rea­son­ab­le to the accu­sed (sub­jec­ti­ve test) and not rea­son­ab­le to the rea­son­ab­le per­son (class test). [8] The other form of self-defence is the defence of ano­t­her. It is, as they say, the defen­se of an indi­vi­du­al other than yourself. At com­mon law, this form of defence gene­ral­ly app­lies to rela­ti­ons­hips invol­ving depen­den­cy. It can be a parent-child rela­ti­ons­hip or hus­band-wife rela­ti­ons­hip. Howe­ver, most juris­dic­tions have broa­den­ed the scope and made this defence avail­ab­le to anyo­ne defen­ding ano­t­her person.

Indi­vi­du­als can only defend them­sel­ves if they con­si­der it rea­son­ab­ly necessa­ry to pro­tect them­sel­ves. This can hap­pen in the fol­lowing situa­tions – In Queens­land, the law allows a per­son to use rea­son­ab­le for­ce to defend them­sel­ves phy­si­cal­ly, ano­t­her per­son or their pro­per­ty. The defence of self-defence pre­sup­po­ses that the per­son acted appro­pria­te­ly in the cir­cum­s­tan­ces and that the defen­si­ve beha­viour was pro­por­tio­na­te to the thre­at. The law does not requi­re peop­le to be pas­si­ve when their safe­ty is threa­tened. If a per­son defends hims­elf rea­son­ab­ly, the law reco­gni­zes his right to do so and does not punish him for it, even if the other per­son ulti­mate­ly per­forms worse than the per­son acting defen­si­ve­ly. Sec­tion 418 of the Offen­ces Act 1900 pro­vi­des that a per­son is not cri­mi­nal­ly respon­si­ble for an offence if he com­mits the offence in self-defence. Into­xi­ca­ti­on is some­ti­mes con­si­de­red a cri­mi­nal defen­se. Ins­tead of a defen­se as such, into­xi­ca­ti­on by alco­hol or drugs. If you requi­re legal advice in con­nec­tion with your case or repre­sen­ta­ti­on in a cri­mi­nal or other legal mat­ter, plea­se con­ta­ct us. Our lawy­ers will sit down with you and review the com­ple­xi­ties of your case, inclu­ding the laws of evi­dence and self-defence, to tell you whe­re you stand and what rea­son­ab­le steps to take from now on. The gene­ral rule regar­ding self-defence is that a per­son may take any defen­si­ve or evas­i­ve mea­su­res he or she deems necessa­ry. Unli­ke other are­as of law, self-defence is not based on a par­ti­cu­lar for­mu­la-based approach, but depends on the facts of the case, lea­ving the mat­ter to the courts and a jury.

In New South Wales, sec­tions 418 to 423 of the Cri­mes Act 1900 now govern the Self-Defence and Exces­si­ve Self-Defence Act (see below). [9] This is cal­led the “two-limb test” for self-defence. This is a par­ti­al defence of mur­der in which the crime is redu­ced to mans­laugh­ter if the con­duct was not pro­por­tio­na­te to the thre­at the accu­sed felt was necessa­ry, even if the accu­sed belie­ved his actions were necessa­ry. As soon as the defence of self-defence is invo­ked, the pro­se­cu­ti­on must pro­ve bey­ond a doubt that the accu­sed did not act in self-defence. It is not for the defence to pro­ve that the accu­sed acted in self-defence. If it is not exclu­ded that the offence was com­mit­ted in self-defence, the accu­sed should not be found guil­ty. A per­son has the right to enga­ge in such con­duct which he sin­ce­rely con­si­ders appro­pria­te and necessa­ry for “defence pur­po­ses” (i.e. self-defence or defence of others or to pre­vent or ter­mi­na­te an unlaw­ful cus­to­di­al sen­tence) under sec­tion 15 of the Con­so­li­da­ted Cri­mi­nal Law Act 1935 (SA).

Sec­tion 15A extends the par­ti­al defence to cir­cum­s­tan­ces in which the accu­sed used exces­si­ve for­ce to kill the decea­sed, but in fact con­si­de­red that for­ce was necessa­ry and appro­pria­te: accord­ing to sec­tion 248 para. 3 ZPO, exces­si­ve self-defence is legal­ly a par­ti­al defence to a mur­der char­ge. This is only exa­g­ge­ra­ted self-defence in the event that the accu­sed had to pro­tect hims­elf but pro­vo­ked an inap­pro­pria­te reac­tion. While initi­al unlaw­ful con­duct results in a mur­der char­ge, if the defen­dant suc­cess­ful­ly defends the case of exces­si­ve self-defen­se or par­ti­al defen­se, the mur­der char­ge is redu­ced to mans­laugh­ter char­ges. For self-defence to be invo­ked, the­re must be suf­fi­ci­ent evi­dence to sup­port a rea­son­ab­le doubt on the part of the judge or jury that the pro­se­cu­ti­on has ruled out self-defence. A per­son per­forms beha­vi­or in self-defen­se if and only if he deems the beha­vi­or necessa­ry: The test for this type of defen­se has two “lim­bs”. Both “mem­bers” must be ful­fil­led for self-defen­se to be suc­cess­ful­ly rai­sed. Some of the com­mon law princi­ples of self-defence were codi­fied in Queens­land in the Penal Code of 1899.

If a per­son is char­ged with a crime and wis­hes to invo­ke self-defence, his or her sta­te of into­xi­ca­ti­on is rele­vant to the first part of the defence (i.e. he or she has deemed his or her con­duct necessa­ry). Howe­ver, the defen­dants‘ sta­te of into­xi­ca­ti­on is not rele­vant to asses­sing whe­ther their con­duct was appro­pria­te in the cir­cum­s­tan­ces as they per­cei­ved it. Self-defen­se is gene­ral­ly a legal term that can make unlaw­ful beha­vi­or legi­ti­ma­te. This implies that the Self-Defen­se Act can app­ly if your actions vio­la­te the law, but were also a secu­ri­ty respon­se to pro­tect you from an attack. Howe­ver, the per­son must pro­ve his actions accord­ing to the stan­dard requi­red to pro­ve that his actions were a form of self-defen­se. If a per­son is acting in self-defence in the heat of the moment, if they are afraid of being inju­red or kil­led, they are not expec­ted to “weigh their reac­tion on a knife‘s edge” to deter­mi­ne the exact level of vio­lence. which is appro­pria­te in the circumstances.

Howe­ver, defen­si­ve beha­viour must not be dis­pro­por­tio­na­te to the thre­at to which the per­son has been expo­sed. The defence‘s rea­so­ning ack­now­led­ges that the degree of cul­pa­bi­li­ty nor­mal­ly asso­cia­ted with mur­der may be absent. In Viro v. The Queen,[1] Jus­ti­ce Aickin sta­ted: During the tri­al, the pre­si­ding judge with­drew the issue of self-defence, which led to a con­vic­tion. After a suc­cess­ful appeal to the High Court, a new tri­al was orde­red with Jus­ti­ces Daw­son and Too­hey out­lining the requi­re­ments of self-defen­se: self-defen­se as a princip­le is avail­ab­le for actions to defend pro­per­ty. Howe­ver, the use of let­hal for­ce is unli­kely to be jus­ti­fied under the Zece­vic test, as the High Court finds that the only jus­ti­fi­ca­ti­on for the use of let­hal for­ce is in situa­tions whe­re the thre­at was such that the per­son had a well-foun­ded fear that death or serious bodi­ly inju­ry would result from the attack. The com­mon law pro­vi­des that a per­son may be acquit­ted of the char­ge of mur­der on the basis of self-defence if he or she has rea­son­ab­le grounds to belie­ve that it was necessa­ry in self-defence to do what he or she did. To con­vict a per­son of mur­der when self-defence was made, a jury must be satis­fied bey­ond a doubt that the accused‘s self-defence actions were not appro­pria­te. If a per­son kills ano­t­her per­son inten­tio­nal­ly or reck­less­ly sole­ly in defen­se of his pro­per­ty, the defen­se of self-defen­se is not avail­ab­le (§ 420). The legal ques­ti­on for the first part of the self-defen­se test is whe­ther the­re is a rea­son­ab­le pos­si­bi­li­ty that you would think your beha­vi­or was necessa­ry to defend yourself, someo­ne else, or defend your pro­per­ty. At com­mon law, the main case of self-defence is Zece­vic v.

DPP (1987) 162 CLR 645, in which the accu­sed kil­led his neigh­bour after an argu­ment. The respon­dent argued that he belie­ved the decea­sed had a kni­fe and shot­gun in his pos­ses­si­on, which for­ced him to go to his unit to retrie­ve his wea­pon and shot his neigh­bour. Accord­ing to arti­cle 420, self-defence is not pos­si­ble if the accu­sed uses phy­si­cal for­ce that inten­tio­nal­ly or reck­less­ly leads to death, and the con­duct was inten­ded to pro­tect pro­per­ty or pre­vent cri­mi­nal intru­si­on. In this sce­n­a­rio, alt­hough the friend did not phy­si­cal­ly hurt the per­son, his beha­viour made the per­son fear immedia­te and unlaw­ful vio­lence. If the per­son is accu­sed of ass­aul­ting her boy­friend, she can the­re­fo­re invo­ke the defence of self-defence. If the court is satis­fied that the per­son acted in self-defence, he or she will not be con­vic­ted. The law reco­gni­zes a person‘s right to pro­tect them­sel­ves if they are phy­si­cal­ly ass­aul­ted or threa­tened with phy­si­cal vio­lence. The extent to which for­ce in self-defence is per­mis­si­ble depends on the cir­cum­s­tan­ces and the extent of the thre­at. In New South Wales, self-defence has been codi­fied in the Cri­mes Act 2001. At the time of this tri­al, the judge with­drew the ques­ti­on of self-defence and pro­noun­ced the sentence.