‘It’s The Law’ – Criminal charges and self defence

Often when Wimmera people are criminally charged with violence related crimes they feel should not be found guilty as they were responding to defend themselves against an action of another person. Sometimes a criminal lawyer may be able to use the defence of self-defence to convince the prosecution to withdraw the criminal charge or successfully defend the charge at trial. In this article I will discuss what charges self-defence can apply to, the elements of the defence and other important considerations.

Criminal charges to which self defence may apply

The defence of self-defence may apply to the following criminal charges in Victoria:

·         Murder (reckless or intentional);

·         Causing injury (reckless or intentional);

·         Causing serious injury (reckless, negligent or intentional);

·         Affray; or

·         Assault.

Elements of Self-Defence

There are two elements of the defence which must be satisfied for the defence to succeed:

1.    that the person believes that the conduct is necessary in self-defence; and

2.    that the conduct is a reasonable response in the circumstances as the person perceives them.

Belief in Necessity

The test is whether the accused believed that the conduct was necessary in self-defence. It does not involve a consideration of what a reasonable or ordinary person would have believed in the circumstances.

The prosecution may succeed in disproving the defence where they can show the accused could have left the confrontation peacefully or the response was disproportionate (for example, a stabbing in response to a small push). However, these are factors that are considered and do not necessarily mean the defence will fail.

In considering necessity, the jury or Magistrate should take into account that the accused has reacted instantly to imminent danger and so cannot be expected to carefully calculate the amount of self-defensive action which is required.

Reasonable response

The prosecution must prove that the conduct was not a reasonable response in the circumstances as the accused understood them. In determining whether an accused’s actions were a reasonable response in the circumstances, a jury can consider the accused’s personal attributes including their age, gender and state of health.

Family violence

Where the accused has suffered family violence from the person they have acted against both elements of self-defence can be considered differently. A history of family violence can lead to conduct being viewed as legitimate self-defence even where the accused is responding to harm that is not immediate or where their response involved force more than the force involved in the perceived threat.

Onus

It is not for the accused to establish that they held the relevant belief and that his or her conduct was a reasonable response in the perceived circumstances. The onus is on the prosecution to disprove this defence.

If you are charged with a criminal offence, it is essential that you obtain legal advice.

Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.