Criminal Law - Self Defence

Self defence is an issue that needs to be disproved by the Crown beyond reasonable doubt. The Crown bears the onus of proving that the accused did not act in self-defence.

Normally a defence will apply once the Crown has proved its case to excuse the actions of the accused. However, if the Crown cannot disprove self defence then the accused is entitled to an acquittal.

The test for self defence has both subjective and objective requirements. Firstly, the court needs to consider the incident from the point of view of the accused. Did he/she do what he/she thought was necessary in the circumstances (considering the danger faced), and was that reasonable.

The court recognises that an accused does not have the time when the incident occurred to precisely determine the exact amount of force that is required to be applied. This is only reasonable when a person has to make a split second decision as to what force he or she should apply to defend his or herself.

However, it would not be reasonable to shoot a person who is threatening to slap the accused. Nor would it be reasonable to shoot a person who after the initial assault is fleeing from the accused. This objective part of the test is what the jury will need to assess to determine whether the accused's actions were reasonable in the circumstances.

This section does not apply if the person uses force that involves the intentional infliction of death or grievous harm:

1. to protect property;
2. to prevent criminal trespass; or
3. to remove a person who is committing criminal trespass.

Even though the accused need not prove self defence, the accused must, as a matter of law, raise self defence as an issue in the hearing. If this is not done then the Crown will not have to prove that self defence was not disproved beyond reasonable doubt.

Can I use ‘self-defence’ if I was defending another person?

The same principles apply to the accused person acting in the defence of another. This is allowed as long as the accused only does what is reasonable in the circumstances to defend that other person.

Self defence does not allow the original victim, if he or she is able to defend the attack, to then proceed to beat the original aggressor. Once what is required to be done in defence has been done, then the person defending himself must not use further force. It should be noted though, if the accused went further in such circumstances, then the fact he was attacked by the other person would be material used in mitigation when deciding what an appropriate penalty in the particular case might be. 

SELF DEFENCE- Principles

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:

1. That:
   1. 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.
   2. 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.
2. 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.
3. 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.
4. If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.
5. 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?
6. 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.”

It was significant in Viro that all the members of the Court, with the exception of Jacobs and Murphy JJ, considered that self-defence contained an objective element in the requirement that the accused reasonably believed or believed on reasonable grounds that the action taken was necessary or reasonably proportionate.

LAC Lawyers Pty Ltd is available to provide you with advice based on your individual needs and particular circumstances which we have been extraordinarily successful in defending these types of matter.