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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

The Defence Of Self-Defence (Qld)


The Criminal Code Act 1899 allows for some use of force if a person is defending themselves, another person or property. The defence of self-defence requires that the person acted in a way that was reasonable in the circumstances and used force that was proportionate to the threat faced.

The Code contains several provisions for instances where the defence of self-defence may apply. A key element of each provision is a requirement for reasonable necessity.

Defence of a person

Under section 271, if a person has been the victim of an unprovoked assault, they can use as much force as is reasonably necessary to defend themselves, as long as the force is not intended to cause death or grievous bodily harm. If the person being attacked believes they will be killed or seriously harmed, they can use as much force as is reasonably necessary to defend themselves, even if that causes death or grievous bodily harm to their attacker.

Under section 272, if a person has assaulted another or provoked an assault from another, and the victim believes they need to use force to defend themselves or they will be killed or seriously harmed, the victim is not criminally responsible for the consequences. This protection does not extend to the victim if they instigated the assault with an intent to kill or do grievous bodily harm, or used force which caused death or grievous bodily harm before the need arose, unless the victim declined further conflict, or stopped it or retreated from it as far as practicable.

Defence of another

Under section 273, in a situation to which self-defence may apply, a person acting in good faith is allowed to use reasonable force to defend a person being assaulted.

Trespassers

Under section 267, a person is allowed to use force to prevent or repel another person from entering or remaining in their home, if they believe the other person is trying to enter or remain with an intent to commit a crime, and that the use of force is necessary.

Under section 277, an owner or controller of land or a building or vehicle can use reasonable force to stop a person from entering, or remove a trespasser, or remove a person behaving in a disorderly way, as long as the owner or controller does not do grievous bodily harm.

Property

Under section 274, a person can use reasonable force to defend their property if a trespasser tries to take it from them, as long as the person does not do grievous bodily harm to the trespasser.

What the court will consider

When the defence of self-defence is raised, the onus is on the prosecution to prove beyond a reasonable doubt that the person was not acting in self-defence. The defence does not have to prove the person was acting in self-defence.

There are four factors a court will consider when assessing the defence of self-defence:

  1. whether there was an unlawful assault on a person;
  2. whether the person provoked that assault;
  3. whether the force used by the person was reasonably necessary to defend themselves against the assault;
  4. whether the force used was intended, or was likely, to cause death or grievous bodily harm.

The court can take into account, for example:

  • any relationship between the accused and the victim;
  • prior acts or behaviour of the victim;
  • the characteristics, beliefs and state of mind of the accused;
  • the proportionality of the actions or weapons used by the accused;
  • whether the accused had a chance to retreat but failed or refused to do this.

The High Court case of Zecevic v DPP in 1987 is considered an authority on the defence of self-defence. After an argument with his neighbour, the accused shot the neighbour dead. The accused had believed his neighbour had a knife and a shotgun, which prompted him to retrieve his gun from his home and shoot his neighbour. The accused was convicted, but on appeal to the High Court, a retrial was ordered. Justices Dawson and Toohey set out the requirements for self-defence:

“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.” 

For advice or representation in any legal matter, please contact Armstrong Legal.

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