Self defence is a commonly used defence in Victoria for charges relating to assault, and in some cases, manslaughter, and murder. Originally a common law defence, self defence was codified in the Victorian Crimes Act 1958 in 2005. Since then, provisions have been introduced to the Act establishing how and when self-defence is enlivened. These reforms have abolished the common law defence of self defence and implemented provisions concerning victims of Family Violence.

When can Self-Defence be Used?

The defence of ‘Self defence’ in Victoria, as articulated in section 322K of the Crimes Act, requires that the accused believed that their conduct was both necessary and a reasonable response to the circumstances as they perceived them. 

Evidential Requirements

To claim self-defence, there needs to be proof of an unjustified threat or use of force against the accused. The violent action against the accused claiming self defence must either be happening or about to happen, and if it’s a threat, it must be credible. Mere presence of an ongoing or imminent attack doesn’t automatically justify self-defence; what matters is whether the accused reasonably believed that using force was necessary due to the perceived danger. 

Necessity Requirement

The first requirement to establish self defence is necessity. This is a subjective test, wherein the accused person believed it was necessary to do so in order to protect themselves, or another. 

Reasonableness Requirement

The second requirement to establish self defence is reasonableness. The accused must establish that their conduct was a ‘reasonable response’ to the circumstances as they perceived them. The element of a ‘reasonable response’ is an objective test, whilst the ‘circumstances as they perceive them’ is subjective. 

When assessing the reasonableness of the accused’s response, it’s the responsibility of the judge or magistrate to consider relevant factors. The focus is on the accused’s own “reasonable response,” not that of a reasonable person, thus the assessment must incorporate the accused’s individual characteristics. While there’s no definitive checklist, factors such as age, gender, health condition, surrounding circumstances, proportionality, prior relationship with the victim, and other pertinent information known to the accused may be considered.

Impact of Intoxication on the Assessment of Self-Defence

In relation to self-induced intoxication, in determining whether an accused person has a ‘reasonable response’, s322T of the Crimes Act 1958 operates to exclude the trier of fact from taking into account the intoxication of the accused. Self-induced intoxication will still be relevant when assessing whether the accused person believed their actions to be necessary based on the circumstances as they perceived them.

Family Violence and Self-Defence

Family violence is a relevant consideration in the assessment of self-defence. Under section 322M of the Crimes Act, if an offence occurred in circumstances where family violence is in issue, this may be relevant in determining whether the accused’s conduct was necessary and reasonable, even if:

  1.  The accused is responding to a harm that is not immediate; or
  2. The response involves the use of force in excess of the force involved in the harm or threatened harm.

The principles of proportionality and immediacy may be adjusted in cases involving family violence, as outlined in section 322M(1). In situations of family violence, pre-emptive actions to prevent harm may be justified, as established in the case of Osland v R (1998), wherein individuals are permitted to intervene before an attack commences. Evidence of family violence can influence an individual’s perception of necessity when they are addressing a non-imminent threat or when their response exceeds the level of force posed by the perceived danger.

In determining whether family violence considerations are enlivened, section 322J defines evidence of ‘family violence’ as:

(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

(f)  social or economic factors that impact on people who are or have been in a relationship affected by family violence.

So, if an accused can demonstrate that such factors are present in their case, they may be able to rely on the family violence measures contained in section 322M to support their claim of self-defence.

Onus of Proof

Once the question of self-defence is raised by the defence, and sufficient evidence is presented to support it, the legal onus is on the prosecution to prove beyond a reasonable doubt that the accused did not act in self-defence (per section 322I).

How Galbally Parker Lawyers Can Help

If you find yourself accused of assault, it is crucial to seek professional legal advice. Contact a criminal defence lawyer to ensure your rights are protected and to navigate the complexities of your case with expert guidance.