Self defence is typically a legal concept that can render unlawful conduct lawful. It implies that the self-defence law may apply when your actions may be against the law but were also a safety response to defend yourself from an attack. However, the person must demonstrate their actions to the necessary standard to prove their actions were a form of self-defence
What is the self defence law in Australia?
It implies that a person is not criminally responsible for the alleged offence if they carry out the conduct in self defence. However, the defendant must prove that the offence was in response to sudden or extraordinary circumstances. Additionally, they must prove that carrying out the otherwise illegal conduct was the only reasonable way to deal with such an emergency. However, an emergency does not have to involve any risk of death or serious harm.
In the event that the defendant raises such a defence, then the Court establishes the defence unless the prosecution disproves it beyond a reasonable doubt. It is important to note that the defence will not be available for the following defences –
- Attempted murder,
- Conspiring to commit murder,
- Committing Murder, or
- Aiding or procuring the commission of murder.
In some cases, the defendant may bring forward the case of family violence. It implies that the defendant claims the offence occurred to defend themselves from the dangerous circumstances. However, the Court will need to determine if, objectively, the response was the only reasonable way to deal with the situation and if the defendant reasonably believed the same. Hence, they will require evidence of family violence during the course of the trial. However, if you require more information regarding evidence in the matter of family violence, please click here, and contact one of our lawyers for a detailed discussion.
What are the permissible situations for reasonable self defence?
Individuals may carry out the conduct in self-defence only if they believe it reasonably necessary to protect themselves. It can happen in the following situations –
- The individual tried to protect themselves from another person,
- They needed to prevent the unlawful imprisonment of themselves or another person,
- An attempt to protect property from unlawful appropriation, damage, destruction, etc.,
- They needed to prevent criminal trespass to any premises, or
- They tried to remove a person committing criminal trespass from the land.
It can also include a wide range of other circumstances. However, the general rules apply to all situations. Moreover, there are limitations. An individual can not use force that leads to a serious injury or death simply to protect the property or criminal trespass.
Where is the self defence law applicable?
There is a vast range of interests that can become a part of the plea of self defence. At the same time, there are also various offences that become excusable in a plea of self defence. A majority of the population assumes that self defence has limitations in its applications to offences, and that includes the use of force. However, in most cases, self defence covers a range of offences that can become excusable if the defendant backs them up with a reasonable justification.
However, one must always remember that the defendant must defend their actions on the ground that it was the most reasonable response in the relevant situation. They cannot justify extreme reactions when a simpler alternative exists in the situation. For example, a judicious lie would be much more preferable and an effective defensive measure rather than a resort to force in the case of trespassing on personal property.
The Court will only excuse unlawful conduct on the ground of self defence if it was a reasonable response to a person threatening harm to the defendant. However, the Court will judge the defendant on their own perceptions of the threat. Additionally, the Court will not excuse the intentional use of deadly forces that cause serious injury or death in cases of real or personal property.
What is a “reasonable” action in self defence law?
The conduct tied to self defence must be reasonable. For example, if someone strikes you with a fist, a similar response to defend yourself would seem reasonable. However, shooting the other person is not acceptable since it is an unnecessary and unreasonable response.
The test for the reasonableness behind defensive conduct goes back to the 1987 decision of Zecevic v DPP. In that case, the defendant killed his neighbour after an argument. According to the accused, he believed that the neighbour had a knife and a shotgun at the time. Hence, it compelled him to go to his house as well to retrieve a gun. After that, the defendant shot the neighbour and killed him.
At the time of this trial, the Judge withdrew the issue of self defence and declared conviction. However, the matter went on to High Court on appeal, after which the High Court ordered a retrial. Their Honours Dawson and Toohey set out the new requirements for self defence law as follows –
The question was simple and direct. It relied on whether the accused believed on reasonable grounds that his actions were necessary for self defence. If he had this belief in the relevant situation, with reasonable grounds for developing the belief, or if the jury also has reasonable doubt regarding the matter in Court, then the Judge will entitle the defendant to an acquittal. In this form, the question must become a general application without any restrictions on homicide.
Hence, after that case, the question of reasonableness is now a two-part test. Firstly, the defendant must respond reasonably to the situation. Secondly, his perception of the situation leading to the true or false belief must have reasonable grounds.
What are the types of self defence?
Simply put, there is excessive self defence, defence of another, defence of property, or defensive homicide.
Excessive defence
Under Section 248 (3) of the Code, excessive self defence is legally a partial defence against a murder charge. It is only excessive self defence in the case that the defendant had to protect themself but initiated an unreasonable response. While the initial unlawful conduct will result in a charge of murder, if the defendant successfully defends the case of excessive self defence or partial defence, it will reduce the charges of murder to charges of manslaughter.
Defence of another
The other form of self defence is the defence of another. It is, as it states, the defence of an individual other than yourself. Under common law, this form of defence is usually for relationships that involve dependency. It can include a parent-child or husband-wife relationship. However, most jurisdictions have widened the scope and made this defence available to any individual defending another person.
Defence of property
The Code allows an individual in peaceable possession of any property to use force only when reasonably necessary to defend the possession of their property. However, they must ensure that they don’t cause any grievous harm to another person that could result in a serious injury on death. Dating back to the Zecevic case, the High Court noted that the only reasonable justification for using lethal force in any situation would seem if the threat was such that the defendant had a reasonable apprehension that they may become a victim to death or serious harm.
Defensive homicide
Self defence is a complete defence against homicide. It implies that if an individual kills someone for the purpose of defending themselves (under the self defence law), and fulfils the elements of the defence of self defence in Court, then the Court will not find them guilty. The defence of self defence relies on the ordinary standards of whatever is fair and just.
Seek legal advice from United Legal lawyers today
Many critics of self defence argue that the defence is largely based on gender. It includes self defence for more sensitive cases such as sexual abuse and corresponds to reasonable responses against an immediate threat.
At United Legal, we have a dedicated team of lawyers who understand the sensitivity of the situation. We respect your confidentiality and the emotional turmoil that you may have to
deal with. Hence, we recommend you seek legal advice from the best lawyers in Canberra, so you don’t have to take the added burden of the legal battles that you may have to face with a case of self defence.
Our lawyers ensure you have all the relevant legal documents and evidence you may need to defend your case. We represent you in Court and fight for your legal rights, so you can focus on your emotional well-being while we take care of the legal matters.
If you require any legal advice regarding your case or representation in a criminal or any other legal matter, please feel free to contact us. Our lawyers will sit down and navigate the complexities of your case with you, including evidence and self defence laws, to tell you where you stand and what will be the reasonable steps to take from here.
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