THE ART OF SELF-DEFENCE

THE ART OF SELF-DEFENCE

Of the substantive criminal offences, personal violence offences are some of the most common that
criminal lawyers deal with. A personal violence offence is where a person physically assaults another
person, or engages in a violent action against them.
Where a client is charged with a personal violence offence, there are really only two defences available.
The first is the Bart Simpson, or “I didn’t do it” defence. The second is that of “Self-Defence”.
The first is as simple as it gets. You have been charged with a personal violence offence but you say you
simply didn’t do it. This may or may not be a practical defence, depending on the prosecution’s evidence
in the matter. There is little point to saying this when the evidence clearly demonstrates that you did in
fact “do it”.

The second, more pliable option, is self-defence. This defence is probably the most known aspect of
criminal law for those not legally trained. It is both a legal and common sense position that someone
who is acting in the defence of themselves should not be criminally liable.

WHEN IS SELF-DEFENCE AN OPTION?
Self-defence is not akin to an eye for an eye and certainly cannot be claimed in a situation where a
person was to hit you and you retaliated by beating them with a hammer. It is however available where
you as a person have been assaulted or threatened by another person (or group of people) and have, as
a result, defended yourself, reasonably, against that threat.
Self-defence is what is known as a total defence. This means that, if it is successfully argued, the court
will find you not guilty.

HOW DOES THE COURT DETERMINE SELF-DEFENCE?

When a person charged with a personal violence offence claims self-defence the court has to ask itself
two questions:

  • Did you have a reasonable fear of an imminent attack?
  • Was your response reasonable to the threat as you perceived it?

The first question is a basic one. Did you as the defendant, reasonably fear or apprehend that you would
be physically attacked?

Where an assault is already taking place against you, this question will always be answered in the
affirmative. The question also considers situations where an attack has not taken place yet but you fear
that one is imminent. In other words, a preemptive strike is capable of being an act of self-defence.
The question is always asked from view of you as the defendant. The question is if YOU believed that
you were at risk of being physically attacked. This means all that needs to be shown to the court is that
you, as the defendant, held this fear. It is not viewed from the lens of an outside person assessing the
situation.

The second question is a touch more complex. For the second question to be answered in the
affirmative it must be shown that your response was a reasonable one for what you perceived the
threat to be. This question is not wholly answered from you, the defendant’s point of view. The question
is asked to a hypothetical third person and if that person would have responded in the same, or similar
matter to how you responded. It is important to understand that this hypothetical third person is
responding to the same threat that was perceived by you. This means that if you perceived that your life
was in danger, your response will be measured against that threat.
If the court finds that the answer to these two questions is yes, then you will be found not guilty.
WHAT SHOULD I DO IF CHARGED AND I HAVE ACTED IN SELF-DEFENCE?
If you are charged with a personal violence offence and believe that your actions were in self-defence it
is important that you make this clear to your legal representative. You should let your lawyer know the
following information:

  • The reason that you felt threatened
  • Any physical acts that were made against you
  • Any background knowledge you have of the complainant, especially if you are aware that they
    are prone to violence!
  • What your actions were and why you thought they were necessary

With this information your lawyer will be able to give you accurate advice as to whether you have a
good case for self-defence.
We at Longton legal always recommend that you consult with a lawyer when facing any criminal
charges. We are experts in the area of self-defence and if you find yourself charged we will be there to
fight for you!

Written by Michael Bennett
Michael Bennett is a solicitor at Longton Legal who has extensive experience defending personal
violence matters. Michael has successfully represented clients on the basis of self-defence in a number
of matters. To get in touch with Michael or any of our expert criminal lawyers contact Longton Legal on
1800 959 999 24 Hours, 7 days a week.

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