LEARN ABOUT OTHER DEFENCES
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s271 Criminal Code 1899 provides it is lawful for a person to use such force to an assailant as is reasonably necessary to make effectual defence against an unlawful assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
“The criminal law does not only punish; it protects as well. It does not expect citizens to be unnaturally passive especially when their safety is threatened by someone else. Sometimes an attacker may come off second best but it does not follow that the one who wins the struggle has committed a crime. The law does not punish someone for reasonably defending himself or herself.”
(Standard Direction, Supreme and District Court Benchbook)
How the defence works.
Although described as a defence, the onus is on the prosecution to prove beyond reasonable doubt that a person did not act in self-defence once that possibility is raised on the evidence.
The use of force is permitted by law if:
1. The force is used in response to an unlawful assault.
An assault includes both physical violence and the threat of physical violence. A threat of violence can take the form of a physical gesture, for example a raised fist, or a verbal threat.
An honest and reasonable, but mistaken, belief that an assault is threatened (about to occur) is enough to enliven the defence of self-defence. This is because of the operation of the defence of Mistake of Fact.
The defence of self-defence is not available is the assault is lawful. An example of a lawful assault is the use of reasonable force to remove an unlawful trespasser.
2. The assault was not provoked.
The legal definition of provocation is far more specific than the everyday meaning. Provocation means a wrongful act or insult likely to deprive an ordinary person of the power of self-control and cause them to respond with violence.
3. The force used by the defendant was reasonably necessary to make an effectual defence against the assault.
The force used must be for a defensive purpose, to prevent further assault. If the force is to get even or to retaliate it is not self-defence.
The defensive force used must be reasonable. This is an extension of the requirement the force be force for defence. If more force is used than necessary the excess force is no longer of a defensive nature.
What is reasonable is a question for a Magistrate or jury applying an objective test. It is not relevant what a defendant thought was reasonable.
Every separate blow, act of force or part of an altercation must be reasonable for the defence of self-defence to operate. A person can start off acting in self-defence but then go to far out of anger. In that case the initial conduct is lawful and the later conduct unlawful.
4. The force used was not intended and was not such as was likely to cause death or grievous bodily harm.
The issue is what was intended or likely, not what resulted. The fact that death or grievous bodily harm resulted does not necessarily mean it was intended. Likewise, evidence of an intention to cause death or grievous bodily harm (say an admission) renders the defence of self-defence under this provision unavailable even if no serious injury resulted.
S271(2) provides it is lawful to use force intended or likely to cause death or grievous bodily harm if responding to a threat of death or grievous bodily harm and is dealt with separately.
When the defence applies.
There must be an unlawful assault before the defence applies.