What is the Legal Defence of Self-Defence?
In Victoria, self-defence is currently governed by part IC of the Crimes Act 1958 (Vic). This statutory defence specifically applies to any offence that was alleged to have been committed on or after 1 November 2014.
Section 322K(2) of the Act states that the legal defence of self-defence applies if the accused carried out conduct that:
However, self-defence is only applicable in cases of murder if the accused believes that the conduct is necessary to defend themselves or another person from the infliction of death or really serious injury (s322K(3)).
Self-defence only applies in circumstances where the accused was:
- Defending themselves (the person) or another person;
- Preventing or terminating the unlawful deprivation of themselves or another person; or
- Protecting their property (s322K).
The defence of self-defence does not apply if:
- The accused’s actions were in response to lawful conduct; and
- At the time of committing the offence, the accused knew that the other person’s conduct was lawful (s322L).
Self-defence has previously existed as a legal defence in common law and under other statutes. The circumstances of the offence and the date that the offence was alleged to have been committed will affect whether the accused can rely on a statute defence or the common law defence. See below ‘Self-Defence in Victorian Criminal Law’ for more details.
Self-Defence as a Defence in Victorian Criminal Law
There have been three distinct stages of law in relation to self-defence in Victoria:
- Prior to 23 November 2005, the legal defence of self-defence existed solely in common law.
- Between 23 November 2005 and 1 November 2014, sections 9AC and 9AE of the Crimes (Homicide) Act 2005 (Vic) legislated statutory defences to murder and manslaughter respectively.
- On and after 1 November 2014, self-defence has existed solely as a statutory defence to all criminal offences in Victoria (s322K of the Crimes Act 1958).
Therefore, the common law defence only applies if:
- The accused is charged with a non-homicide charge alleged to have been committed between 23 November 2005 and 1 November 2014; or
- The accused is charged with any offence alleged to have been committed before 23 November 2005.
The common law states that defence arises when the accused believed upon reasonable grounds that it was necessary in self-defence to do what they did (Zecevic v Director of Public Prosecutions (1987)).
Otherwise, section 322K of the Crimes Act 1958 applies to any offence (homicidal or non-homicidal) on or after 1 November 2014. This law states that a person is not guilty of an offence if they carry out the conduct constituting the offence in self-defence.
Section 322M of the Crimes Act 1958 also legislates specific laws in relation to self-defence in circumstances of family violence. Please see below ‘Self Defence and Family Violence in Victoria’ for more details.
Proving Self-Defence in Court
In relation to the current statute defence of self-defence, the judge must direct the jury about self-defence if he or she believes that there are substantial and compelling reasons for doing so (ss14 – 16 Jury Directions Act 2015 (Vic)).
Otherwise, the accused carries the evidential onus of adducing or identifying sufficient evidence to raise the defence. Once the defence of self-defence is raised, the prosecution must prove beyond a reasonable doubt that the accused did not act in self-defence (s322I Crimes Act 1958). To do so, the prosecution must negate either one or both elements of the defence, being that:
- The accused believed their conduct was ‘necessary’ in self-defence; or
- The conduct was a ‘reasonable response’ in the circumstances as the accused perceived them.
The court uses a subjective test to determine whether the accused’s conduct was ‘necessary’ in self-defence. Zecevic v DPP (1987) suggests that the question of necessity is two-fold:
- Did the accused believe it was necessary to defend themselves (or another person or their property) at all; and
- Did the accused believe it was necessary to respond as they did given the threat as they perceived it?
It is irrelevant whether or not the belief of the accused was right or wrong, as long as it was genuinely held (R v McKay ). Consideration must be given to the fact that a person reacting instantly to imminent danger cannot be expected to precisely weigh up the measure of self-defence action required (R v Palmer ). Further, the court can also take intoxication into account when determining whether the accused believed their actions were necessary (R v Conlon (1993)).
An objective test is applied by the court when determining whether the accused’s conduct amounted to a ‘reasonable response’. However, the reasonableness of the response must be considered in light of the circumstances as subjectively perceived by the accused. Essentially, the question is this: is there a reasonable possibility that the conduct of the accused was a reasonable response in the circumstances as he or she perceived them? (Zecevic v DPP (1987)). The test aims to assess the response of the accused, not that of a ‘reasonable person’. Because the test involves subjectivity in light of the circumstances, it is up to the trier of facts to decide what to take into consideration when assessing the reasonableness of the response. As such, the personal attributes of the accused are relevant. However, self-induced intoxication of the accused must not be taken into consideration when assessing ‘reasonable response’ (s332T Crimes Act 1958).
Once the defence is properly raised, should the prosecution fail to disprove the defence of self-defence, the accused must be found not guilty of the charge.
Self-Defence and Family Violence in Victoria
Section 322M of the Crimes Act 1958 (Vic) also specifically pertains to self-defence in circumstances of family violence. It states that in the context of family violence, the accused’s conduct may still be considered ‘necessary’ in self-defence and a ‘reasonable response’ in the circumstances as the accused perceives them, even if:
- The accused is responding to a harm that is not immediate; or
- The response involves the use of force in excess of the force involved in the harm or threatened harm.
Essentially, this means that in some circumstances, the pre-emptive actions taken by the accused to prevent family violence may be excused as self-defence. Further, the way in which the accused defends themselves does not necessarily have to be proportional to the harm or threat of harm from the other family member.
The court may consider evidence of family violence when determining whether the accused believed the conduct was ‘necessary’ or a ‘reasonable response’ (s322M(2)). Under section 322J(1), evidence of family violence (in relation to the person) may include any of the following:
- The history of the relationship (including any violence);
- The cumulative effect that violence has had on either person (including psychological effect);
- The social, cultural or economic factors that impact on either person;
- The general nature and dynamics of the relationship; and
- The psychological effects of family violence.
Obtaining Legal Advice
Self-defence is a highly complex legal defence and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether self-defence or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.