For all assault type offences other than homicide which take place after 22 November 2005, you can raise self defence as an issue in your case. The prosecution must disprove self defence beyond reasonable doubt. If the prosecution fail to disprove at least one of the two elements of self defence the accused will be entitled to an acquittal.
Self defence is governed in Victoria by the common law. In homicide situations, statutory self defence provisions exist in the Crimes Act 1958. Section 9AC is the provision to be used in murder cases and section 9AE is to be used in manslaughter cases.
Elements of Self Defence
The High Court has defined the test for self defence, for both homicide and non-homicide cases. 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 s/he did. – Zecevic v DPP (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ.
There are two elements to this test:
- The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary – the subjective element. This is a subjective test. It does not involve a consideration of what a reasonable person would have believed in the circumstances, but rather what the accused believed. For this element to be satisfied, it does not matter if the accused’s belief was mistaken but it must have been genuinely held. If the accused was intoxicated at the time s/he committed the relevant offence, this can be taken into account when determining whether s/he believed their actions to be necessary.
- That belief must have been based on reasonable grounds – the objective element. This element does not require the jury to determine whether the accused acted reasonably under the circumstances. Rather, it requires the jury to determine whether there were reasonable grounds for the accused’s belief that it was necessary to do what he or she did.
In determining whether the accused’s belief was based on reasonable grounds, the jury may take into account the following issues:
- The surrounding circumstances of the offence
- The facts within the accused’s knowledge
- The relationship between the accused and the complainant
- Any prior conduct of the complainant
- The person characteristics of the accused, such as any deluded beliefs s/he held and any excitement, affront or distress s/he was experiencing
- The proportionality of the accused’s actions
- The accused’s failure to retreat
Where the Accused Initiated the Aggression
Persons who originate an attack cannot then claim that they acted to defend themselves against a counter attack, unless their original aggression stopped at the time of the counter attack.
Defence Against Lawful Force
Common law self defence is not limited to defending against unlawful attacks. It is possible to raise this defence even if the accused was responding to the lawful use of force. However, it will only be in exceptional situations that a lawful attack will provide reasonable grounds for acting in self-defence. This is because where accused persons create a situation in which force might lawfully be applied to apprehend them, then the only reasonable view of their resistance to that force will usually be that they were acting as aggressors rather than in self defence.
