            DEFENCE - SELF-DEFENCE Most people have their own idea about what self-defence is. However, self-defence, under the Queensland Criminal Code, is quite complicated. The defence of self-defence is divided into self-defence against an unprovoked assault, and self-defence against a provoked assault. Self-defence against an unprovoked assault A person is lawfully able to use such force as is reasonably necessary to make an effectual defence against an assault which has not been provoked, provided the force is not intended, and is not such as is likely to cause death or grievous bodily harm. However, if the nature of the assault against the person is such as to cause a reasonable apprehension of death or grievous bodily harm, and the person using force by way of a defence reasonably believes that they cannot defend themselves other than by using force that may cause death or grievous bodily harm, then they are able to use such force. Self-defence against a provoked assault This applies when the person who has been charged (and is attempting to raise the defence of self-defence) has initially assaulted or provoked the assault from another person. The defence is only available if that other person who was initially provoked responds with such violence as to cause a reasonable apprehension of death or grievous bodily harm. However the defence does not apply if the person seeking to rely on it, first began the assault with intent to kill or do grievous bodily harm. In any other case the defence is not available to an “instigator/provoker”. Aiding in self-defence A person who is acting in good faith in another person’s aid is able to raise self-defence on the same basis as the person who they are aiding and can use a like degree of force for the purpose of defending the person. Reasonableness The force used by the person seeking to rely on self-defence must be reasonable. What is reasonable in the circumstances depends on the facts of each case, and is a matter for a jury to decide (or a magistrate, in a Magistrates Court hearing). Courts recognise that persons defending themselves cannot be expected to weigh up the exact amount of defensive action which is necessary in circumstances where they have to act quickly in a stressful and dangerous situation. The jury (or a magistrate) will give substantial weight to what a person instinctively thought was necessary in determining whether the force used was reasonable. Onus of proof Once the person wishing to rely on self-defence raises it, the prosecution, in order to secure a conviction, must satisfy the jury (or magistrate) beyond a reasonable doubt, that the defence does not apply. In other words, if the jury is satisfied that the accused was acting in self-defence, or if the jury is not satisfied beyond a reasonable doubt that the accused was not acting in self defence, then they must find the accused not guilty. |
