How can I argue self defence to Assault charges?
Often we find ourselves in situations where we need to make a quick decision because of circumstances out of our control.
Imagine a situation where you are out with your family and someone comes along and tries to start trouble. Imagine this person takes a swing at you or someone in your family. Imagine this person is drunk or aggressive and can not be reasoned with. What choice do you have? It’s the age old question – fight or flight.
In circumstances like the one described above, the law provides for the principle of ‘self defence.’
What is the law relating to Self Defence?
Section 418(1) of the Crimes Act 1900 (NSW) provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. In plain English, it means that if a defence of self-defence is made out, the charge against you is dismissed.
The case of Katarzynski  NSWSC 613 sets out the principles of self-defence and the elements which the prosecution must dis-prove. As soon as self-defence is raised by the defendant, the prosecution must establish either that:
(1) the accused did not genuinely believe that he did what he did in self-defence, OR
(2) what the accused did was not a reasonable response to the danger, as he perceived it to be
The first test is a subjective test which means the court must take into account the unique characteristics of the defendant as well as his/her consequent perception and reaction to events. The second test is an objective test which means that it is an assessment of whether the defendant’s actions were a reasonable response to the threat/danger. For example, imagine a situation in a queue for drinks at a bar. A man behind you in the queue pushes you aggressively. You tell him to back off. He pushes you again. You turn around. He starts to take a swing and you push him to the ground. That is where self-defence starts and finishes. You can not continue to punch the man while he is on the ground and claim self-defence. That would not be a reasonable response in the circumstances, and would be interpreted by a Magistrate or Judge as an act of violence.
For more information and case studies for cases we have appeared in for other clients where self defence was raised, go to:
Call LY Lawyers, 1300LYLAWYERS or 1300 595 299 for a free initial consultation.
We have successfully represented our clients in defeating charges of common assault, assault occasioning actual bodily harm and reckless wounding based on the principle of self-defence.