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Self-defence in the law
The general rule regarding self-defence is that a person is allowed to take any defensive or evasive steps that they believe to be necessary. Unlike other areas of law, self-defence isn’t reliant on a specific formulaic approach, but rather, is dependent on the facts of the matter, with the question left for the courts and a jury to decide.
At common law, the leading case on self-defence is Zecevic v DPP (1987) 162 CLR 645, where the accused killed his neighbour after an argument. The accused argued he believed that the deceased had a knife and a shotgun in his possession, which compelled the accused to go into his unit to retrieve his gun, and as a consequence, shooting his neighbour dead.
During the trial the presiding judge withdrew the issue of self-defence, resulting in a conviction. On a successful appeal to the High Court, a retrial was ordered with Dawson and Toohey JJ setting 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.”
Looking to self-defence in legislation, we can turn to s 10.4(2) of the Criminal Code 1994 (Cth) which states the following:
A person carries out conduct in self-defence if, and only if, he or she believes the conduct is necessary:
to defend himself or herself or another person; or
to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
to protect property from unlawful appropriation, destruction, damage or interference; or
to prevent criminal trespass to any land or premises; or
to remove from any land or premises a person who is committing criminal trespass.
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