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Self Defence - what is the law in South Australia

‘Killing over beer dispute was self-defence, accused says’, was the headline to an article in The Advertiser Newspaper this week. The article goes on to explain that a man, standing trial before the South Australian Supreme Court, is alleged to have fatally stabbed another man with scissors in an argument over beer. It goes on to state that the defendant maintains that his actions were in self-defence. However, there is no explanation in the article as to what, at law, amounts to self-defence in South Australia. This is a typical headline that we see daily.  Apart from the salacious aspect of the headline the article does little to inform the public about the issues involved.

 

At Michael Woods & Co we have many clients who claim self defence.  Given that we are a specialist criminal law firm we deal with issues of self defence on a daily basis.  We have many clients charged with assault to murder who have at times claimed self defence.

 

Self defence at common law has a slightly different meaning from the statutory definition we have in South Australia.  Nevertheless, a claim of defence should not be used to disguise an attack.  A person who is threatened ceases to use self defence once the threat has ceased.  In addition, a person is not precluded from claiming self defence if they struck first for a defensive purpose.

 

Defence is an action in resistance to another’s attack. Self-defence is the use of force, by a person, to protect that person, another person or property.

In order to rely upon self defence there are generally two questions to be asked.

 

Firstly, did the defendant genuinely believe that the conduct to which the charge relates was necessary and reasonable to defend themselves, another or their property?  The test at this point is subjective.  The accused needs to show that the belief went to both the necessity and the reasonableness of their actions.

 

Secondly, in the circumstances as the accused believed, was the action reasonably proportionate to the threat which he or she faced?

 

If the answer is ‘yes’ to both questions, then the defence of self-defence is opened.

 

If a defendant raises self defence then the defence is taken to have been made out unless the prosecution disproves the defence beyond reasonable doubt.  In other words, if the court is left with the view that there is a reasonalble possibility that the person believed honestly that they were acting in self defence then they are entitled to an acquittal, provided their actions were not disproportionate to the threat they faced.

 

Unfortunately, self defence laws are not particularly simple to apply in a practical sense.  The above is a general indicator of the law only.  There are many slight variances in the way the law is applied to certain different circumstances.  The above is of course not meant to be a substitute for obtaining legal advice.

 

If you have been charged with an offence against the person, such as assault or murder, we at Michael Woods and Co are able to assist you in your defence. As specialist criminal lawyers we are here to protect your rights and guide you through the process.

 

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