This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Self Defence
A person charged with a violent offence has a full defence if they were acting in self-defence or in defence of another person. If the court accepts that the accused was acting in self-defence, they will be found not guilty and acquitted of the charge/s. Self-defence in Victoria was previously governed only by case law, but in 2014 was codified in section 322K of the Crimes Act 1958.
Legislation
Section 322K of the Act states that:
- A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if —
- the person believes that the conduct is necessary in self-defence; and
- the conduct is a reasonable response in the circumstances as the person perceives them.
- This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.
Elements of Self Defence
There are two key elements to the defence of self-defence in Victoria.
- The person believes the conduct is necessary in self-defence. This is a subjective test. It does not matter what a reasonable person would have done in the circumstances. It matters only that the accused genuinely believed their actions were necessary in the circumstances. It is not relevant if the accused was mistaken in their belief, as long as their belief was genuine.
- The conduct is a reasonable response in the circumstances: This is an objective test. This requires the decision-maker to decide whether there were reasonable grounds for the accused’s belief that their actions were necessary.
A number of factors might be considered to determine this, including the surrounding circumstances, the knowledge of the accused, the relationship between the accused and the complainant, the conduct of the complainant prior to the offence, the proportionality of the accused’s actions, and any personal characteristics of the accused.
Important Circumstances When Considering Self Defence
If you are considering running a defence of self-defence, you need to consider the following.
Who initiated the attack?
If you initiate an attack, you cannot claim you acted in self-defence when defending a counter-attack, unless the original aggression had ended by the time of the counter-attack.
Did you leave the conflict and return?
If you are attacked, and then leave the scene of the attack, the conflict is considered to have ended. If you then return and assault the person who began the initial conflict, this will be considered a new conflict and self-defence will not apply in these circumstances.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.