In an assault case, the physical contact is only part of the story.
What happened before the alleged assault? What did the accused person believe was about to happen? Was there a history between the people involved? Was the accused responding to a threat, a pattern of violence, or a situation that looked very different to them than it might look to someone reading a brief months later?
These questions can be critical, particularly where self-defence is raised.
At Galbally Parker Lawyers, we have acted in some of Victoria’s most serious and closely examined violent offence matters. In our experience, assault cases are rarely understood properly by looking at the final moment in isolation. The broader context can change how the allegation is assessed, how the evidence is understood, and whether a defence is available.
If you have been charged with an assault-related offence, early legal advice is essential. You can learn more about our experience on our Assault Lawyers Melbourne page.
Why context matters in self-defence cases
Self-defence is one of the most important defences in assault and violent offence matters.
Under section 322K of the Crimes Act 1958 (Vic), self-defence may apply where a person believes their conduct is necessary in self-defence, and their conduct is a reasonable response in the circumstances as they perceive them.
That final phrase matters: as they perceive them.
Self-defence is not assessed only by looking at the contact itself. The court must consider what the accused person believed was happening at the time, and whether their response was reasonable in those perceived circumstances.
This means evidence about context can be crucial.
That may include:
- what was said immediately before the incident
- whether threats were made
- the size, strength or behaviour of the other person
- whether weapons were present
- prior violence between the parties
- the accused person’s knowledge of the other person
- whether the accused believed they were about to be attacked
- whether the accused was trying to defend themselves or someone else
- the speed and pressure of the situation
In many cases, the real issue is not whether contact occurred. The real issue is why it occurred, what the accused believed was happening, and whether the prosecution can disprove self-defence beyond reasonable doubt.
Self-defence is about perception, not hindsight
Assault cases are often judged after the fact, in calm conditions, with the benefit of CCTV, witness statements, medical reports and police summaries.
But that is not how the incident unfolded.
In a self-defence case, the accused person’s perception at the time is central. A person does not need to prove that their perception was perfect. They do not need to prove that they made the best possible decision. They do need to raise evidence that they believed their conduct was necessary in self-defence, and that their response was reasonable in the circumstances as they perceived them.
That distinction can be especially important in cases involving serious violence, including physical assault and aggravated assault allegations.
A person accused of assault may not say, “I did nothing.” They may say, “I did it because I believed I had to protect myself.”
That is a very different kind of defence. It requires a careful, detailed and strategic understanding of the evidence.
Case example: Mick Gatto
Galbally Parker represented Mick Gatto when he was charged with the murder of Andrew “Benji” Veniamin in 2004.
The prosecution alleged that Mr Gatto brought the firearm used to kill Veniamin to the restaurant where the shooting occurred. The defence case was very different. It was argued that Mr Gatto had been confronted by Veniamin, who was concerned that Gatto believed he was involved in the murder of Graham Kinniburgh, a close friend of Mr Gatto.
A key issue at trial was what Mr Gatto believed Veniamin was capable of.
Mr Gatto gave evidence that Veniamin pulled a gun on him, and that he turned it back on Veniamin and shot him because he believed he was in immediate danger. That belief was informed by his observations of Veniamin and by what he had heard from a number of sources, including police.
Mr Gatto was acquitted.
The case demonstrates why context can be decisive. The defence did not depend only on the final act. It depended on the circumstances surrounding it, the relationship between the men, the accused person’s knowledge, and what he believed was happening in the moment.
Read more about this case on our Case Studies page.
Family violence self-defence
Context becomes even more important where self-defence is raised in the context of family violence.
Section 322M of the Crimes Act 1958 (Vic) specifically recognises that, where family violence is in issue, a person may believe their conduct is necessary in self-defence, and their conduct may be a reasonable response in the circumstances as they perceive them, even if:
- they are responding to harm that is not immediate
- their response involves force in excess of the force involved in the harm or threatened harm
This provision recognises an important reality. In family violence situations, danger is not always understood from one isolated incident. It may be understood through a pattern.
A phrase, a look, a gesture, a movement towards a weapon, a change in tone, or a particular behaviour may mean something very specific to the person who has lived with the violence.
To an outsider, that detail may seem minor. To the accused person, it may be the warning sign that serious violence is about to occur again.
This is why domestic assault matters involving self-defence must be prepared with care. The history of the relationship, prior incidents, witness observations, medical records, police attendance, text messages, photographs and other evidence may all be relevant.
Family violence can change how the evidence is understood
In a family violence self-defence case, the court may need to understand:
- the history of violence in the relationship
- whether the accused had previously been threatened or assaulted
- whether the alleged victim had access to weapons
- whether particular behaviours had preceded violence in the past
- whether the accused believed escalation was inevitable
- whether others had observed injuries, fear or controlling behaviour
- whether the accused had sought help before
- why the accused may not have reported earlier violence
This kind of evidence is not background colour. It can go directly to the accused person’s perception of danger.
It may explain why a person acted before an assault had actually begun. It may explain why they believed they had no safe way to leave. It may explain why the force used, while serious, was connected to what they believed was about to happen.
Case example: Phillip Bracken
Galbally Parker acted for Phillip Bracken, who was charged in 2012 with the murder of his de facto wife, Helen Curtis.
Mr Bracken did not deny that he shot Ms Curtis. The incident was captured on CCTV and occurred after Ms Curtis took a loaded semi-automatic firearm to the home of Mr Bracken’s father, with whom she had a dispute.
The relationship between Mr Bracken and Ms Curtis had been marked by violence committed by Ms Curtis against Mr Bracken. The effects of that violence were observed by a number of witnesses.
On the morning of the shooting, Ms Curtis threatened Mr Bracken with the same firearm he later used to kill her.
At trial, substantial evidence was led to establish that Mr Bracken had lived in circumstances of family violence. The defence case was that, when he killed Ms Curtis, he did so because he believed her behaviour was escalating and that she would kill or seriously injure him or one of his family members.
On 1 March 2014, a jury unanimously acquitted Mr Bracken of murder, manslaughter and defensive homicide, a result reported by SBS News at the time.
The case remains a powerful example of why family violence self-defence cannot be understood by looking only at the final act. The relationship, the history, the threats, the weapon and the accused person’s lived experience all mattered.
Why police interviews are so important in self-defence cases
Self-defence must be raised by evidence.
In practical terms, that often means the accused person may need to raise it during their police interview or later by giving evidence in court.
This is one of the reasons it is vital to speak with an experienced criminal defence lawyer before participating in a police interview about a serious assault or violent offence allegation.
In many criminal cases, lawyers advise clients not to answer police questions. However, self-defence cases can be different. There may be circumstances where it is strategically important to raise the defence early, including in the record of interview.
That decision should never be made casually.
Answering police questions can carry risk. Staying silent can also carry risk if self-defence is not raised at an early stage. The right approach depends on the allegation, the evidence, the client’s instructions and the broader strategy.
This is why early advice matters.
If self-defence is raised properly in a police interview, it may affect whether charges are laid, how the matter is assessed, and whether the accused later needs to give evidence at trial. If an accused person does not give evidence at trial, they also avoid being cross-examined by the prosecution.
These are significant strategic decisions. They should be made with proper legal advice, not under pressure in a police station.
Context matters in less serious assault charges too
Self-defence is not only relevant in murder or serious violence cases.
It may also arise in matters involving common assault, physical assault, family violence allegations, fights, workplace incidents, venue incidents, neighbourhood disputes, or confrontations that escalate quickly.
In these cases, context may include:
- who started the confrontation
- whether the accused was trying to leave
- whether the alleged victim blocked or followed them
- whether there were threats or intimidation
- whether the accused was protecting another person
- whether alcohol or drugs affected witness accounts
- whether CCTV captures the whole incident or only part of it
- whether the allegation has been exaggerated or misunderstood
Even in lower-level assault matters, the difference between an isolated act of aggression and a defensive response can be significant.
Speak to an assault lawyer before giving your account
If you are accused of assault and believe you acted in self-defence, do not assume the context will be obvious to police, prosecutors or the court.
It needs to be identified, evidenced and presented properly.
At Galbally Parker Lawyers, we have decades of experience acting in serious assault and violent offence matters, including cases where self-defence is central to the outcome.
We can advise you before a police interview, assess the evidence, identify relevant context, and help determine the strongest way to respond to the allegation.
If you or someone close to you has been charged with assault, contact Galbally Parker Lawyers to speak with an experienced criminal defence lawyer.
We are different.