Anastasia Qvist is an outstanding lawyer. My criminal law situation (family violence order) was difficult, complex and Ana's diligence saved me as I was going through the most difficult period of my life. Ana is down to earth, commonsense and she even kept our costs to a minimum. She is a skilled litigator and knows the ins and outs of the ACT Magistrates Court. She dealt skillfully with the DPP and is an excellent negotiator. You will get a fair representation and she genuinely cares about her clients. She has my complete recommendation. The lady goes to bat for her clients.
I would strongly recommend Anastasia to anyone who is seeking legal representation. As a first-time offender who was charged with a Level 2 Drink Driving offence, she walked me through every step of the matter and was very upfront and clear on all aspects of my case. She was always accessible when I needed advice. Her approach and advice were excellent. Under her representation, I received the best possible outcome and managed to avoid a criminal conviction. She was a pleasure to deal with throughout the whole matter.
Anastasia Qvist was very professional and helpful in every step of my matter. I got a very good outcome and I can’t thank you enough for your hard work and the Armstrong Legal team in Canberra. I would highly recommend her!!!
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
"Andrew Tiedt was very professional and considerate to personal circumstances and gave sound advice that resulted in the best outcome possible. Highly recommended."
The Defence of Self Defence (ACT)
Self-defence is a valid defence to any violent offence, including murder and manslaughter. If the court accepts that the accused was acting in self-defence, it will dismiss the charge. Once a defence of self-defence has been raised the onus is on the Prosecution to disprove it beyond a reasonable doubt.
The self-defence law for the ACT is found in Section 42 of the Criminal Code Act 2002, which provides:
- A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.
- A person carries out conduct in self-defence only if:
- The person believes the conduct is necessary to defend himself or herself or someone else; or
- To prevent or end the unlawful imprisonment of himself or herself or someone else; or
- To protect property from unlawful appropriation, destruction, damage or interference; or
- To prevent criminal trespass to land or premises; or
- To remove from land or premises a person committing criminal trespass.
The conduct has to be a reasonable response in the circumstances as the person perceives them.
- However, the person does not carry out conduct in self-defence if:
- The person uses force that involves the intentional infliction of death or serious harm to protect property, or to prevent criminal trespass or to remove a person committing criminal trespass; or
- The person is responding to lawful conduct that the person knows is lawful.
Burden of proof
The ultimate onus of proof in relation to self-defence does not rest on the accused. In Zecevic v DPP (Vic) (1987) 162 CLR 645, Justices Wilson, Dawson and Toohey said, “It has been clearly established that once the evidence discloses the possibility that the … act was done in self-defence , a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the … act was not done in self-defence. The jury must be instructed accordingly whether or not the plea is actually raised by the accused.”
The prosecution must show either:
- That the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence; OR
- That what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
There are two questions to be answered by the court when self-defence is raised. These are
- Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself?; and
- If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?
The first question is determined by a completely subjective point of view, considering the personal characteristics of the accused at the time he or she carried out the conduct.
The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed he or she faced.
The accused need not have reasonable grounds for the belief that it was necessary to act in the way he or she did in order to defend themselves. It is sufficient if the accused genuinely held that belief.
The jury is not assessing the response of the reasonable person but the response of the accused. In making that assessment it is obvious that some of the personal attributes of the accused will be relevant just as will some of the surrounding physical circumstances in which the accused acted. Matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury (or judge or magistrate).
Pre-Emptive Strike, Retreat and Defence of Another
The defence of self-defence can apply to a pre-emptive strike that was carried out to prevent what the person believed to be an imminent attack. Australian courts have generally found that the belief needs to be reasonable, as objectively viewed.
There is no longer any rule that the accused must have retreated as far as possible before attempting to defend himself: Zecevic v DPP (Vic) (1987) 162 CLR 645. It is a circumstance to be considered with all the others.
A person is entitled to use the same amount of force in the defence of another person from imminent attack as they are allowed to use if the attack were aimed at them. This applies regardless of whether the other person is a “relative, friend or stranger”: R v Portelli (2004) 10 VR 259 per Ormiston, JA.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.
WHY CHOOSE ARMSTRONG LEGAL?
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