Defence of Self-Defence in Brisbane
A person who is charged with a violent offence in Queensland can defend the charge on the basis that they were acting in self-defence or in defence of another person or of property. The defence of self-defence requires that the accused acted in a way that was reasonable in the circumstances and used only a level of force that was proportionate to the threat they faced (or believed that they faced). This article outlines the operation of the defence of self-defence in Brisbane and the rest of Queensland.
Self-defence in Brisbane: defence of a person
Section 271 of the Criminal Code 1899 provides that if a person has been the victim of an unprovoked assault, they may use as much force as is reasonably necessary to defend themself, as long as the force is not intended to cause a person death or grievous bodily harm.
If a person is being attacked and believes they will be killed or seriously harmed, the person can use the amount of force that is reasonably necessary to defend themselves, even if they cause the attacker death or grievous bodily harm.
Section 272 provides that if a person has assaulted another person or provoked an assault from another person, and the victim believes the attacker will kill or seriously harm them, the victim is not criminally responsible for the consequences if they respond with lethal force. However, the victim does not have this protection if they instigated the assault with an intent to kill or do grievous bodily harm to the other person, or if they used force that caused death or grievous bodily harm before the need to do so if self-defence arose, unless the victim disengaged from the conflict, or stopped or retreated as far as practicable.
Self-defence in Brisbane: defence of another
Under section 273, in a situation in which the defence of self-defence may apply, a person acting in good faith may use reasonable force to defend another person who is being assaulted.
Self-defence in Brisbane and trespassers
Section 267 of the Criminal Code provides that a person may use force to prevent or repel another from entering or remaining in their home, if they believe the other person is trying to enter or remain with the intent of committing a crime, and that the use of force is necessary.
Section 277 provides that an owner or controller of land or a building or vehicle is allowed to use reasonable force to stop a person from entering, or to remove a trespasser or a person who is behaving in a disorderly way, as long as they do not do grievous bodily harm.
Section 274 states that a person can use reasonable force to defend their property if a person tries to take it from them, as long as they do not do grievous bodily harm to the person.
What the court will consider
When an accused raises self-defence, the onus is on the prosecution to prove that the person was not acting in self-defence beyond a reasonable doubt. The defence does not have to prove that the defendant was acting in self-defence.
There are four factors that a court must consider when assessing whether a person was acting in self-defence:
1. whether there was an unlawful assault on a person;
2. whether the person provoked that assault;
3. whether the force used by the person was reasonably necessary to defend themselves against the assault;
4. whether the force used was intended or likely to cause death or grievous bodily harm.
The court can take into account:
- the relationship between the accused and the victim;
- any prior acts or behaviour of the victim;
- the accused’s characteristics, beliefs and state of mind;
- the proportionality of the accused’s actions;
- whether the accused had a chance to retreat.
The High Court case of Zecevic v DPP in 1987 is the leading authority on the defence of self-defence in Australia. In that case, the accused shot his neighbour dead after an argument. The accused had believed that the neighbour was in possession of a knife and a shotgun, which prompted him to retrieve his gun form his house and shoot his neighbour. The accused was convicted but the High Court subsequently ordered a retrial. Justices Dawson and Toohey set out the requirements for self-defence:
“The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide.”
For advice or representation in relation to self-defence in Brisbane or in any other legal matter, please contact Go To Court Lawyers.