The Defence of Self-Defence
To be successful in relation to the defence of self-defence in Victoria, the person relying upon the defence must have believed that the conduct was both necessary and that the conduct was a reasonable response to the circumstances, as the person perceived them.
The key provisions governing self-defence in Victoria are found in sections 322I –322N and 322T of the Crimes Act 1958 (Vic). Self-defence was first codified in Victoria in 2005. Up until then it had been a common law defence. The 2005 legislation was specific to murder and manslaughter whilst the common law defence remained available for all other offences. This was changed in 2014, Part IC of the Crimes Act 1958 was established that sets out a single statutory self-defence provision for all offences. This applies to all alleged offences that have been committed on or after 1 November 2014 (section 322K). These reforms abolished the common law defence of self-defence (section 322N) and included special provisions concerning victims of family violence (section 322J). For defences to homicide prior to 2005 see the defence of provocation; for those between 2005 and 2014 see defensive homicide.
The defence of self-defence is most commonly utilised in relation to allegations of violence. Section 322K of the Crimes Act states:
(1) A person is not guilty of 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-
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them.
(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.
When is an Act in Self-Defence?
To rely upon self-defence there must be evidence of an unjustified threat or use of force against an accused. The violent act will be occurring or imminent, or if it is a threat, it must be viable. A person is not entitled to rely on self-defence just because an attack is in progress or immediately threatened, the issue is whether the accused’s perception of the danger led them to believe that the use of the force was required (Osland v R (1998) 197 CLR 316). In relation to the threat of family violence the self-defence may occur in advance as a means of protecting one’s self and family members from harm, for more on this see the section relating to family violence.
In Victoria self-defence is a justification for an accused person to respond with violence if the accused believed that his or her conduct was necessary to defend himself or herself or another person from harm, or to protect property or to prevent deprivation of liberty or a trespass (R v Portelli (2004) and R v McKay ). And the conduct was a reasonable response in the circumstances as the accused perceived them. In the case of murder the bar is very hight, and self-defence will only be available if the person believes that the conduct is necessary to defend themselves or another person from the infliction of death or really serious injury.
The defence of self-defence is not available if the accused was responding to lawful conduct which was known by the accused at the time to be lawful (section 322L). Further, a person who instigates an attack cannot then claim that they acted to defend themselves against a counterattack unless their original aggression stopped prior to the retaliation.
There are two elements to self-defence, these are that the conduct was necessary, and the conduct was a reasonable response in all the circumstances as perceived by the accused.
Necessity & Self Defence
A person carries out conduct in self-defence when they believe it is necessary to do so in order to protect themselves or a personal interest.
- This is a subjective test and focus’s on the accused’s belief. (Zecevic v DPP (1987); Viro v R (1978)).
- The belief must have been genuinely held whether that belief was mistaken or not is not relevant, but it may go to whether the trier of fact determines whether the belief was genuinely held (R v McKay )
Intoxication, Self-Defence & Necessity
In relation to self-induced intoxication, in determining whether an accused person has a ‘reasonable response’, s322T of the Crimes Act 1958 operates to exclude the trier of fact from taking into account the intoxication of the accused. But that is not the end of the story, self induced intoxication will still be relevant when assessing whether the accused person believed their actions to be necessary based on the circumstances as they perceived them (R v Katarzynski ). It is a fine distinction but an important one to understand. Consider the following two examples.
Examples of Self Defence
Person A is intoxicated. Person B attacks person A with a small stick. Person A perceives due to their intoxication that person B is attacking them with a knife. Person A stabs person B. Person A’s intoxication would be relevant to their assessment of the perceived threat and the necessity of their conduct in response. Intoxication would not be relevant to an assessment of the reasonableness of that response, this would be assessed on the basis of a sober person responding to being set upon with a knife.
Person A is intoxicated. Person B attacks person A with a small stick. Person A realises that person B is attacking them with a small stick but due to their intoxication, person A overreacts by stabbing person B with a knife. Intoxication is not relevant to the overreaction or unreasonable response of person A.
In example 1, person A could avail themselves of the defence of self-defence as it may be considered a ‘reasonable response’ to stab someone that you thought was trying to stab you. In example 2, person A could not avail themselves of the defence of self-defence as it would be unlikely to be considered a ‘reasonable response’ to stab someone that was attacking you with a small stick.
What is a Reasonable Response?
The conduct must be a ‘reasonable response’ to the circumstances as the accused perceived them. ‘Reasonable response’ is an objective test. ‘Circumstances as the accused perceived them’ is a subjective test. If the trier of fact is satisfied that there is a reasonable possibility that the accused’s exercised a ‘reasonable response’ when considered in the context of the circumstances as perceived by the accused, then the accused must be acquitted (Presidential Security Services of Australia Pty Ltd v Brilley (2008)).
In determining whether the accused’s response was a reasonable one, it is a matter for the trier of fact to determine what to take into account. What is being assessed is the ‘reasonable response’ of the accused, not that of a reasonable person, so the accused’s attributes must be plugged into the matrix. There is no exhaustive list but somethings that might be considered are, age, gender, state of health and other surrounding circumstances, proportionality, prior relationships with victim and other matters that might have been known to the accused.
Family violence & Self Defence
Evidence of family violence is expansively defined in section 322J of the Crimes Act, this is relevant to self-defence and the associated defences. Section 322J of the Crimes Act defines ‘violence’ means physical abuse, sexual abuse, psychological abuse, property damage, intimidation, harassment or threats and the exposure of children to such abuse. It is behaviour committed by a family member against a current or former parent, child or any other member of the household.
As per section 322J(1) evidence of family violence includes proof of any of the following:
(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.
In cases involving allegations of family violence this information may be relevant in determining whether the accused believed his or her conduct was necessary, or whether the behaviour was a ‘reasonable response’ in the circumstances (section 322M(2))
The requirements of proportionality and imminence may be relaxed when the offence occurs in circumstances of family violence section 322M(1). Pre-emptive violence may be excused due to family violence (Osland v R (1998)), the accused is entitled to take steps to prevent the attack before it begins. Evidence of family violence can affect the formation of the accused’s belief in necessity in situations where the accused is responding to a harm that is not immediate; and/or the response used force in excess of the force of the perceived threat.
Onus of Proof
Once the question of self-defence is raised by the defence, and sufficient evidence is presented to support it, the legal onus is on the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defence (section 322I).
Self-defence is an available defence for any offence that involves the use of force or the threat of force against a person or their property. It must be necessary and proportional given the circumstances, unless in the setting of family violence. As is always the case, the above information can not be taken as legal advice. If you have been charged in relation to assault related offending and you feel self-defence might be relevant to your case, then you should call our office for advice.