Self-Defence And Family Violence (Vic)

The defence of self-defence has long been available in relation to all criminal offences involving the use of force under the common law. In Victoria, the Crimes Act 1958 has also codified a separate defence of self-defence that can be relied on in relation to violence in a domestic context. Self-defence in this context is defined somewhat differently to the common law defence of self-defence. This article outlines how family violence is defined in a criminal context and how the statutory defence of self-defence operates in such matters. 

Definition of family violence

The Crimes Act 1958 defines family violence as violence against a person by a family member. Violence is defined in section 322J to include:

• physical abuse;
• sexual abuse;
• psychological abuse including intimidation, harassment, damage to property, threats of physical abuse, sexual abuse or psychological abuse;
• in relation to a child, causing or allowing the child to see or hear family violence putting the child, or allowing the child to be put, at real risk of seeing or hearing family violence.

What is evidence of family violence? 

Under section 322J, evidence of family violence includes evidence of any of the following:

• The history of the relationship between the person and the family member, including violence by the family member towards the person or towards any other family member and vice versa;
• The cumulative effect, including the psychological effect, on the person;
• The social, cultural or economic factors that impact the person;
• The general nature and dynamics of relationships involving family violence, including the possible consequences of separation of the person from the abuser;
• The psychological effect of family violence;
• The social or economic factors that impact people who are or have been in a relationship affected by family violence.

Self-defence as a defence to family violence

The Crimes Act 1958 provides a statutory defence of self defence in the context of family violence under section 322M. The defence may be relied on where a person believes that their conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if:

• the accused was responding to harm that was not immediate;
• the response involved the use of force in excess of the force involved in the harm or threatened harm.

The defence can be made out if it can be established that the accused believed their conduct was necessary in self-defence and that they perceived the conduct to be a reasonable response in the circumstances. 

How is this different from the common law defence of self-defence? 

The common law defence of self-defence involves a two-part test. Firstly, the accused must have believed that their actions were necessary in self-defence. This is a subjective test, meaning it is the accused’s state of mind that is assessed. Secondly, the accused’s actions must have been reasonable in the circumstances. This is an objective test and is assessed on the basis of what a reasonable person of the same age and sex as the accused would do in a similar situation. A person will not be acquitted on the basis of self-defence if their response would be considered on overreaction by a reasonable person similarly situation. 

In contrast, the test for self-defence in a family violence context does not involve reference to what a reasonable person would have done. The court must be satisfied that the person believed what they did was necessary in self-defence. If it is satisfied of this, it must then then consider whether those actions were reasonable in the circumstances. This is an objective test, but it must be determined in relation to the circumstances as the accused perceived them.

Seek legal advice

It is extremely important, that you seek legal advice and representation before raising any defence before the court and before engaging in discussions with Victoria Police. Consulting a legal professional gives you the opportunity to receive sound legal advice and an assessment all of your options before deciding whether to plead guilty or contest charges. A specialist lawyer can advise you as to whether the defence of self defence is arguable in your case, and whether there are any other defences that may apply. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.