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A person who is charged with a violent offence in Victoria has a full defence if they were defending themselves or acting in defence of another person. If the court accepts that the accused person was acting in self-defence, it will find the person not guilty of the offence. Self-defence in Victoria was for many years governed only by case law; however, in 2014 the defence was codified in section 322K of the Crimes Act 1958. This article outlines the defence of self-defence in Melbourne and elsewhere in Victoria.
Legislation on self-defence in Melbourne
Section 322K of the Act states that a person is not guilty if they carried out the act constituting the offence in self-defence. A person carries out an act in self-defence if:
- they believes that the conduct is necessary in self-defence; and
- the conduct is a reasonable response in the circumstances as they perceive them.
- The defence of self-defence can only be relied on in a case of alleged murder if the accused believed that their conduct was necessary to defend themself or someone else from the infliction of death or really serious injury.
Elements of self-defence in Melbourne
There are two key elements to self-defence in Melbourne and the rest of Victoria. They are that:
- The accused person believed that their conduct was necessary in self-defence. This is a subjective test. It is not relevant what a reasonable person would have done in the circumstances but only that the accused person genuinely believed their actions were necessary. It does not matter whether the accused was mistaken in their belief, as long as the belief was genuine.
- The accused person's conduct was a reasonable response in the circumstances. This is an objective test. This requires the court to decide whether there were reasonable grounds for the accused’s belief that their conduct was necessary.
A number of factors might be considered to determine the above, including the circumstances surrounding the alleged offence, the accused's knowledge, 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 a person is considering running a defence of self-defence, they should consider the following.
Who initiated the attack?
If the accused initiated an attack, they cannot claim they acted in self-defence when defending a counter-attack, unless the original aggression had ended by the time of the alleged offence.
Did they leave the conflict and return?
If a person is attacked, and then leaves the scene of the attack, the conflict is considered to have ended. If they then return and assault the person who began the initial conflict, this will be considered a new conflict and the defence of self-defence will not apply.
If you require legal advice or representation in relation to self-defence in Melbourne or in any other legal matter, please contact Go To Court Lawyers.
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