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Assault in Self Defence

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to physically assault, cause harm to or injure someone. It is also assault if you threaten someone to the extent that they believe physical violence or harm is imminent.

There are many different types of assault offences. These offences range from minor assaults, including common assault which carries a maximum penalty of 2 years imprisonment, to very serious assaults, such as inflicting grievous bodily harm with intent, which carries a maximum penalty of 25 years imprisonment.

You can be acquitted of assault if it is found that you acted in ‘self-defence’ and what you did was reasonable in the circumstances.



THE DEFENCE OF 'SELF-DEFENCE':

Under legislation, a person who successfully shows that they acted in self defence will be acquitted of the offence. Division 3 of Part 11 of the Crimes Act 1900 contains a number of provisions concerning the defence. The primary provision is section 418 of the Crimes Act 1900 (NSW) which states:

  • A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
  • A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
    • to defend himself or herself or another person, or
    • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
    • to protect property from unlawful taking, destruction, damage or interfere, or
    • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.

WHEN YOU CAN SUCCESFULLY RAISE SELF DEFENCE:

To raise self-defence you need to enter a plea of ‘not guilty’. Your matter will then proceed to a hearing or trial in which you can raise self-defence as the reason for your conduct which might otherwise constitute an offence of assault. The prosecution will then need to prove that you were not acting in self defence.

Self-defence can be raised:

  • To argue that you committed the assault to defend yourself or another person;
  • To argue that you committed the assault because you or another person were being falsely imprisoned or held captive by someone else;
  • To argue that you committed the assault because you were protecting property from theft, destruction or damage; and
  • To argue that you committed the assault because you were preventing someone from trespassing or removing a person who was trespassing.

Importantly, self-defence will only be successful if what you did was reasonable in the circumstances. This means that your response must be proportionate to the threat, harm or crimes that you were responding to. For example, shooting someone who shoves you in the chest, or even punches or attacks you is unlikely to be found to be a reasonable response. Similarly, injuring a person who is trespassing on your property is unlikely to be reasonable. However it all depends on the circumstances of the case.

WHAT ASSAULTS MIGHT BE IN SELF DEFENCE?

Examples where self-defence can be successfully raised by someone charged with assault include:

  • Punching a person who is hitting and punching you to get them to stop;
  • Walking down a laneway and tackling the man you see beating and sexually assaulting a woman;
  • Pushing someone in the chest because they are walking towards you, are very aggressive and are yelling, “I’m going to kill you!”; and
  • Telling someone who has just poured petrol around a house not to set fire to it and then pushing them over and grabbing the lighter from their hand.

WHAT THE POLICE MUST PROVE:

If you are charged with an assault offence and raise self defence, the police need to negate the defence, that is to prove that what you did was not actually in self defence. To prove that you were not acting in self defence, the police will need to prove beyond reasonable doubt:

  • That your response was not reasonable in the circumstances; and
  • Depending on which form of self-defence you raise:
    • That when you committed the assault, you were not defending yourself or another person;
    • That when you committed the assault, you or another person were not being falsely imprisoned or held captive by someone else;
    • That when you committed the assault, you were not protecting property from theft, destruction or damage; or
    • That when you committed the assault, you were not preventing someone from trespassing or removing a person who was trespassing.

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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