Defence Series – Self Defence
The article Defence Series – Self Defence is written by Molly Deighton, Senior Associate, Doogue + George Defence Lawyers.
Molly is currently based at the firm's main office in Melbourne CBD. She regularly represents clients at the Melbourne Magistrates' Courts including other suburban and regional courts in Victoria.
Prior to joining Doogue + George, Molly was an Associate to a Supreme Court Judge in Victoria in the Criminal Division. Her work included research and assisting with the drafting of judgements for various criminal cases, including homicide, terrorism, and slavery. She has also interned at the Fitzroy Legal Service.
Fights and conflict are often complicated. There may be an argument where both sides get physical with one another. While one person may be left with more serious injuries, this does not necessarily mean that the other party is in the wrong.
Sometimes there has been a history of violence between the two parties, and this context is critical to understanding how things have escalated. This is especially significant in relationships where one party has been subjected to family violence at the hands of the other party. If a significant incident then occurs, it is critical that this context is understood.
It may not be clear to police who is the true aggressor in a situation. The police may be told one version of events, or they may not be aware of the history of a certain relationship.
If you have been charged in relation to an incident where you believe you were acting to protect yourself or another person, it may be that self-defence can be argued.
This defence can be argued in assault and injury type cases, such as unlawful and common assault, and recklessly and intentionally causing injury. These are common charges, especially in the Magistrates’ Court. This defence can also apply in homicide matters heard in the Supreme Court, being charges of murder and manslaughter.
Since 1 November 2014, self-defence has been defined in legislation, not in common law. The test can be found in section 322K of the Crimes Act 1958 (Vic), and it says that a person is not guilty of an offence if they carried out the conduct charged while acting in self-defence.
This conduct may occur in circumstances where a person is defending themselves or another person, preventing or stopping the unlawful deprivation of someone’s liberty, or to protect property.
There are two elements that must be established:
- At the time they committed the conduct, the person must have believed this was necessary in self-defence; and
- The conduct was a reasonable response in the circumstances, as perceived by the person at the time.
For the first limb, the accused must have held a genuine belief that their conduct was necessary at the time. This cannot be a belief that has developed or arisen with time, it must have been held at the time of the incident. It does not matter if this belief was wrong or mistaken, it just needs to have been genuine.
The second limb requires an objective assessment of whether the accused’s response to this belief was reasonable.
This test for self-defence is applied differently in the context of family violence. In such situations, the law states that a person may believe their conduct was necessary in self-defence and a reasonable response, even if they are responding to a harm that is not immediate, or their response used more force than the force that was used against them. Where self-defence is argued in such cases, it is common that expert evidence is led to explain the impact of family violence and the unique factors to be considered when deciding if someone has acted in self-defence.
How can this defence be argued?
This defence will generally need to be raised by your lawyer. A Magistrate or Judge may question whether it applies if it is supported by the facts and not raised by the defence.
Once this defence has been raised, the onus is on the prosecution to prove beyond reasonable doubt that the accused did not act in self-defence.
It is important that you consider whether self-defence applies at an early stage, as it will determine how you run your case.
What happens if I successfully argue this defence?
Self-defence is a complete defence, meaning that if you are successful, you will be found not guilty of the charge/s.
If the prosecution cannot prove beyond reasonable doubt that someone did not act in self-defence, they will be not guilty of the charge, even if the consequences of their actions were serious.
How can I find out more?
If you are charged and think self-defence could apply, you should speak with a criminal defence lawyer as soon as possible. An experienced lawyer can carefully consider all the circumstances surrounding alleged conduct, as well as the nature of the conduct itself. They can then provide informed and specific advice as to whether you have a realistic prospect of arguing that you acted in self-defence.
It is essential that you obtain this advice at the earliest opportunity possible. You want to work with your lawyer to develop your case strategy from the beginning, as this will inform how you run the case. It may be that further investigation is required to obtain evidence to develop the defence.
Our lawyers are experienced in fighting such charges and exploring every defence available. If you would like to discuss your matter and whether self-defence may be available to you, contact us to organise an appointment.
Date Published: 2 November 2022