Expert Self Defence Lawyer: Protect Your Rights

Section 418 of the Crimes Act 1900, titled Self-defence–when available provides;

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary–

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

In Viro v The Queen (1978) 141 CLR 88, six propositions were formulated by Mason CJ, Aickin and Stephen JJ. They were expressed as follows:

It is for the jury first to consider whether when the  accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him. By the expression “reasonably believed” is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.

If the jury is satisfied beyond reasonable doubt that there was no reasonable believe by the accused of such an attack no question of self-defence arises.

If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.

If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.

If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury – did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?

If the jury is satisfied beyond reasonable doubt that the accused did not have such a believe the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter.”

In Viro self-defence was confined to a response to an unlawful attack. The Court in Zecevic held that it is not to be so confined. At p 382, Wilson, Dawson and Toohey JJ said:

“Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. This is demonstrated by the exhaustive examination of authority carried out by Ormiston J. In R. V. Lawson and Forsythe. Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist – where, for example, he is engaged in criminal behaviour of a violence kind – then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design.”

In order to successfully raise self-defence, you will need to prove on the balance of probabilities that:

• You were acting to protect yourself, your property or another person;
• You believed that your actions were reasonable in the circumstances.

The key to successfully raising self-defence is that you honestly believed, given your circumstances that you acted in a manner that was reasonable to protect yourself, your property or another person.

You cannot raise self-defence in circumstances where you under the influence of drugs or alcohol. This is due to the effect that alcohol or drugs has to impair your ability to perceive risks.

Self defence is not a partial defence to murder. If you acted in a way where it is shown that your actions were excessive self defence or you had no intention of murder, you can be found guilty of manslaughter and not guilty of murder.