Australian self-defence laws in criminal matters

by The FindLaw Team

It’s not unusual to see in matters before the courts that involve force, that an accused will raise self-defence. All jurisdictions have self-defence laws and although there may be differences, there are still common strands in all jurisdictions when discussing self-defence– such as the use of force against another person, and in more limited ways, self-defence can also be applied to the defence of property. And although self-defence is applicable in criminal matters, there are still constraints on that exist in regards to the defence that is reflected both in common, and statute law.

This piece will take a general look at self-defence laws, the applicable tests and how it may be used in regards to property.

A broad look at self-defence

Self-defence  is made available for crimes that have an element in either the use of, or threat of, force to a person, most notably in murder and assault.

Broadly speaking, self-defence is raised as evidence in matters where the person has committed an offence against another person resulting from a personal attack, or an attack on another party. The defence is also available in respect to personal property, however, self-defence is more restricted in such instances.

The concept of self-defence has close connections to the right which is available to a person to stop the commissioning of a crime, to lawfully arrest a person, and to escape false imprisonment. However, unlike some other aspects of criminal law, there is no set formula in what is deemed to be an action of self-defence, but rather,  the defence is reliant on the facts of the matter and ultimately it is up to the courts and a jury to decide if self-defence is available in the circumstance.

Finally, and perhaps most importantly, a successful defence of self-defence can result in an acquittal.

The test for self-defence

Due to the fact that self-defence is open-ended, there aren’t many rules which limit the defence, however the leading case at common law of Zecevic v DPP saw the High Court set out the requirements for the defence and before detailing the test, we should perhaps quickly outline the facts of the case in order to gain a further perspective to the defence.

The accused in Zecevic was a neighbour of the deceased and the relations between the two parties was poor due to the repeated failure by the deceased to shut the security gates to the courtyard around which the units were erected, as well as a failure by the deceased to put his car in the garage.

On 16 July 1983, the accused and the deceased had an argument in relation to the actions of the deceased’s failures to close the gate and to put the car in the garage, and in an unsworn statement at the trial, the accused stated that the deceased went back to his unit, came back to the unit of the accused, continuing the argument, whereupon the deceased stabbed the accused a number of times and made threats to shoot the accused. At this point, the accused got his own gun and shot the deceased.

At trial, the accused raised self-defence, however the judge withdrew it from the jury and on appeal to the Victorian Court of Criminal Appeal was also dismissed.

However, on appeal to the High Court, all seven judges allowed the appeal and ordered a re-trial where Wilson, Dawson and Toohey JJ also set out the requirements for self-defence:

“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 did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.”

Self-defence in legislation

All jurisdictions make an allowance for self-defence, however there does exist some variations which we will touch upon.

Beginning with the Commonwealth Criminal Code, s 10.4(2) necessitates that a person is not criminally responsible for an offence if they are carrying out their conduct in self-defence, and only in the belief that the conduct was necessary. In regards to the reasonableness requirement, the Commonwealth Code states that the conduct is a reasonable response in the circumstances as he or she perceives them.

To compare the Commonwealth Code with state legislation, we can use ss 271(1) and 271(2) of Queensland’s Criminal Code as our example, with the necessity requirement stating that it is lawful for a person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, while the reasonableness requirement is one in which an accused must believe on reasonable grounds, that he or she cannot otherwise preserve the person defended from death or grievous bodily harm.

Self-defence and property

In regards to the defence relating to property, the use of self-defence is limited and the Zecevic defence may not be applicable. Queensland, Tasmania and Western Australia, statutory provisions exist in reference to using force in defence of property, and mirroring the common law, the defence of property must be reasonable and necessary, as well as being proportionate to the threat perceived by the accused, and also, the use of force must not be intended or likely to cause death or grievous bodily harm.

Furthermore, s 10.4(3) of the Commonwealth Code and s 420 of the New South Wales Crimes Act for example, self-defence is not available if the force used in the protection of property has the intention to cause death or grievous bodily harm, and the conduct must also be reasonable and necessary, as well as proportionate to the threat perceived by the accused.

Meanwhile in Victoria, under ss 9AC and 9AE of Victoria's Crimes Act, self-defence is not available for murder or manslaughter.

This piece is only a broad outline of self-defence. If you have any questions or concerns in relation to any criminal matter, please seek the assistance of a lawyer who will be able to help.



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