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Self defence to assault offences

In any assault type offence, you can raise self defence as an issue in your case. Once the question of self-defence is put in issue, the onus is on the prosecution to disprove self-defence beyond reasonable doubt. If the prosecution fail to disprove self defence the accused will be entitled to an acquittal.

If you are going to defend a case relying on self defence you need to know the law relating to self defence. Self defence is governed in Victoria by the common law. Statutory self-defence provisions exist in the Crimes Act 1958: one for use in murder cases (s9AC) and the other for use in manslaughter cases (s9AE).

Criminal Defence – Self Defence – The Test

The High Court has defined the test for self-defence, for both homicide and non-homicide cases, as follows:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ).

There are two elements to this test:

  • The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary (known as the “subjective element”); and
  • That belief must have been based on reasonable grounds (known as the “objective element”).

Raising Self defence & who has to prove what

Once the question of self-defence is put in issue, the onus is on the prosecution to disprove at least one of these elements beyond reasonable doubt. If the prosecution fail to disprove at least one of these elements the accused will be entitled to an acquittal.

Criminal Defense – Self Defence – More detailed information

The information contained below involves complex legal principles. If you do not have a good knowledge of the law you may have difficulty understanding the principles. If you need assistance, please call or email us.

Legal Principles

Belief in Necessity (The Subjective Element)

This is a subjective test. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances, but rather what the accused believed. For this element to be satisfied, it does not matter if the accused’s belief was mistaken, as long as it was genuinely held. If the accused was intoxicated at the time he or she committed the relevant acts, this can be taken into account when determining whether he or she believed his or her actions to be necessary.

Consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self-defensive action which is required. The proportionality of the accused’s response to the harm threatened is just one factor to take into account in determining whether the accused believed that his or her actions were necessary. There is no rule requiring the accused to retreat from an attack rather than defend himself or herself. However, a failure to retreat is a factor to be taken into account in determining whether the accused believed that what was done was necessary as well as in determining whether that belief was based on reasonable grounds.

Belief on Reasonable Grounds (The Objective Element)

Objective element

This element does not require the jury to determine whether the accused acted reasonably in the circumstances. It requires the jury to determine whether there were reasonable grounds for the accused’s belief that it was necessary to do what he or she did.

In determining whether the accused’s belief was based on reasonable grounds, the jury may take into account the following matters:

  • The surrounding circumstances
  • All of the facts within the accused’s knowledge
  • The relationship between the parties involved
  • The prior conduct of the victim
  • The personal characteristics of the accused, such as any any deluded beliefs he or she held and any excitement, affront or distress he or she was experiencing.
  • The proportionality of the accused’s response.
  • The accused’s failure to retreat

Where the Accused Initiated the Aggression

People who originate an attack cannot then claim that they acted to defend themselves against a counter attack, unless their original aggression had ceased at the time of the counter attack.

Defence against lawful force

Common law self-defence is not limited to defending against unlawful attacks. It is possible to raise the defence even if the accused was responding to the lawful use of force (such as a lawful arrest) However, it will only be in an unusual situation that a lawful attack will provide reasonable grounds for acting in self-defence. This is because where accused people create a situation in which force might lawfully be applied to apprehend them (e.g. where they are engaged in criminal behaviour of a violent kind), then the only reasonable view of their resistance to that force will usually be that they were acting as aggressors in pursuit of their original design, rather than in self-defence.

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