We all have the right to protect ourselves and others from physical harm, serious injury and death. While violence is abhorrent and should be avoided at all costs, there are situations that arise in life where violence may have to be used as a last resort to ensure your own personal safety or to protect against someone else being harmed .
Broadly speaking, self-defence is a physical countermeasure employed by someone against an assailant in order to protect or defend the wellbeing of that person or others, for example, through the means of martial arts or even a makeshift weapon. While most of us do not have formal martial arts training, this does not mean that we do not have the lawful right to defend ourselves if we feel threatened. Self-defence law ensures that every person maintains the right to protect themselves through use of force to the best of their ability against a perceived threat.
What is Self Defence?
In the specific sense of the law, self-defence refers to a defence strategy and plea of justification for employing physical violence against another person. The law recognises that a certain degree of force may be necessary if a person believes they are in danger of falling victim to unlawful imprisonment, sexual harassment, sexual violence, property damage, grievous bodily harm or death.
In the Australian legal system, a person is not considered criminally responsible for their conduct if they carry out the conduct constituting the offence in self-defence. For self-defence to be applicable, it must be proven that a person who has carried out an offence did so out of necessity, and that the circumstances deemed the conduct to be reasonable.
Self Defence Legislation
The Crimes Act 1900 Section 418 states that a person is not criminally responsible for an offence if their conduct constitutes an act of self-defence, and that the conduct was necessary to:
- Defend himself or herself or another person
- Prevent unlawful deprivation of his or her liberty or the liberty of another
- Protect property from unlawful taking, destruction, damage or interference
- Prevent criminal trespass to any land or premises, or to remove a person committing such an act
The law also states that the response must be a reasonable one considering the circumstances as he or she perceives them.
The Two-Limb Test
For self-defence to be applicable, two important elements of the defence must be proven to jurors and judicial officers:
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The Subjective Test
The first element, or “limb”, of the test is what is known as a subjective test. This involves an attempt to determine whether there was a reasonable possibility that the Accused person believed that his or her conduct was necessary in order to defend himself or herself. This takes into account the personal characteristics of the accused at the time they carried out the conduct. In other words, it involves considering what the Accused person was actually thinking.
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The Objective Assessment
The second limb of the test is determined by an entirely objective assessment of the proportionality of the response to the situation the accused believed that they faced. In other words: “Was the conduct of the person a reasonable response considering the circumstances?”.
What is “reasonable”?
The term reasonable in the context of self-defence refers to whether the accused person’s actions were reasonable, not to whether a reasonable man would have done the same thing. This is a subtle yet important distinction. In considering reasonability, there are many factors that are taken into account such as age, gender, health, as well as the surrounding physical circumstances in which the accused acted. Intoxication can also be relevant, but generally it is related to the first limb of the two-limb test.
Once an accused person raises self-defence, the prosecution must prove that the accused was not acting in self-defence beyond a reasonable doubt.
Self-defence can be quite complicated and will always differ from case to case. For example, in 2019 Francois Schwartz heard an intruder in his Sydney home and found 34-year-old Bradley Soper hiding behind his couch in the living room. Fearing for his life and the life of his wife and child, Schwartz challenged the intruder, getting him into a headlock and accidentally killing him. After interrogation, he was released and was being charged due to the self-defence laws and what was deemed “reasonable force”. In this case, the response was deemed reasonable because the intruder was in Schwartz’ home and the intent was not to kill the intruder, but to subdue him.
Onus of Proof
Onus of proof, also known as burden of proof, refers to the obligation of the prosecution to prove their assertion. In other words, it is up to the prosecutor to prove that the accused committed the crime of which they are accused beyond all reasonable doubt. The onus of proof is never on the defendant. It is not up to the defendant to prove they are innocent, it is up to the prosecution to prove they are guilty.
When is Self Defence Not Available?
Self-defence is not available if death has been inflicted upon another person in order to protect property or trespass only, according to Section 420 of the Crimes Act 1900. Self-defence must be to protect a person from physical harm, and this must be proven beyond a reasonable doubt by the prosecution. If there was no fear for the harm or death of you or someone else, self defence is not applicable under criminal law.
Excessive Self Defence
While you do have the right to defend yourself, an excessive or unreasonable reaction of force can undermine your defence. Self-defence must include what is termed as a “reasonable response”. As previously discussed, reasonable force is essential to the validity of the self-defence argument, as the second part of Section 418 states that a person must believe their conduct is necessary to protect themselves or others from personal harm, protect property or prevent criminal trespass for the defence of self-defence to be applied. If the conduct is not considered a reasonable response, then the person may be found guilty of manslaughter.
Other defences
Self defence requires proof that the actions were not only in the defence of yourself or others, but that these actions were reasonable given the circumstances. Not all cases can be defended by entering a self defence plea, but there are other other defences that can be employed in certain situations. These other defences include:
Case Studies
LY Lawyers have experience with countless assault cases which utilised the plea of self-defence. This is because self-defence is a natural instinct of someone who is being attacked or is in fear for their life. Many of our clients have faced charges related to violence, such as assault and affray, but have had all charges subsequently dropped due to our expert legal team
