This article discusses the legal justification for using force to defend oneself against a perceived threat of harm, known as the criminal defence of self-defence. An accused individual may claim self-defense if they can show that their acts were justified because they were defending themselves, another person, or property. The law acknowledges that when a person is threatened with unlawful injury, they cannot be expected to remain passive.
Legislations
Varying states and territories have varying definitions of self-defense in their laws. The following are the pertinent provisions:
- In New South Wales, section 418 of the Crimes Act 1900;
- In Victoria, section 322k of the Crimes Act 1958;
- In the ACT, section 42 of the Criminal Code Act 2002;
- In Western Australia, section 248 of the Criminal Code Act Compilation Act 1913;
- In Tasmania, section 24 of the Criminal Code Act 1924;
- In the Northern Territory, section 43BD of the Criminal Code 1983;
- In South Australia, sections 15 and 16 of the Criminal Law Consolidation Act 1935;
- In Queensland, self-defence is set out in various provision of the Criminal Code 1899.
The primary case on the matter in Australia is Zecevic v. The Queen, which was decided by the High Court in 1987.
What is necessary for self-defense to be effective?
An accused individual must meet the following requirements in order to properly assert self-defense:
- They had a sincere conviction that using force was essential to defend themselves or another person from impending illegal injury. This conviction was supported by reasonable grounds.
- The amount of force used was reasonable given the perceived threat.
- Their conviction and use of force were supported by acceptable justifications. This indicates that, in light of the circumstances as they were understood by the accused, their behavior was arguably justified.
The onus of proof
The burden of establishing any of the factors beyond a reasonable doubt ultimately falls on the prosecution, even if the defense is initially accountable for asserting self-defense. The accused will be cleared of the crime if the prosecution is unable to prove beyond a reasonable doubt that they did not act in self-defense.
When is self-defense not appropriate?
It’s crucial to keep in mind that the self-defence defence cannot be employed if the accused individual started the fight or overreacted to the perceived threat by using excessive force. Self-defence does not offer a defense if the accused person employed excessive force, for as by killing an assailant in response to a non-lethal attack or severely harming them in order to protect property.
Zecevic v DPP
The High Court’s ruling in Zecevic v. Director of Public Prosecutions (1987) is the preeminent legal precedent in Australia regarding the use of self-defense as a defense. The central argument of the accused in the case was that he killed his neighbor in self-defense. The accused said that he shot the victim because he felt obligated to do so because he thought the victim was carrying a knife and a shotgun.
‘The final question is fairly straightforward. The question is whether the accused reasonably felt that acting in self-defense was required. He is entitled to an acquittal if he held such belief and there were reasonable grounds for it, or if the jury had a reasonable doubt about the subject. When posed in this way, the query is open-ended and not just relevant to homicide cases.’
Aside from self-defense
A person who acts in self-defense is not in violation of the law. Any defendant who successfully invokes self-defense will be given a complete pardon.
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