Clarity Law

Specialist Criminal Law Firm Queensland
Tuesday, 08 August 2023 16:38

Self-Defence and the use of force: Your rights in Queensland

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 Lawful use of force in Queensland

We all know it is against the law to use violence against someone. We also know that there are some exceptions to this general rule. Defending ourselves or someone else is one of these exceptions.

 

What is Self Defence?

In its most straight-forward formulation, self defence means protecting ourselves (or someone else) from violence, or anticipated violence.

For example, a man starts randomly punching you at the pub. In this situation, you are legally entitled to defend yourself. There are a variety of ways you could do this: punching back, tackling him to the ground, or smashing a bottle and stabbing him with it.

Maybe instead of getting punched yourself, a female patron at the pub attacks your fiancé by pulling her hair and kicking her in the legs. In this case, you leap to your fiancé’s defence by either trying to pry the aggressive female’s fingers open so she will release the hair, or, grabbing a pool cue and whacking the aggressor in the face with it.

 

Reasonableness

In two of the above scenarios, there is a degree of force that might fairly be called excessive. Self-defence is only available as a legal defence if the force used is “reasonable to repel the attack”. To use the first example above, punching or tackling may be reasonable, but stabbing him with a broken bottle probably is not, with the well-known dangers that come with such an action. For the second example, trying to pry open her fingers appears reasonable, but whacking her in the face with a hard weapon like a pool cue probably is not.

While an element of reasonableness is necessary, the courts do not expect a person defending himself, who has to react instantly to danger to “weigh precisely the exact measure of self-defensive action which is required”. That is to say, while the force used to defend yourself must be reasonable, the courts make some allowance for people acting in the heat of the moment, under a highly stressful circumstances, with little time to carefully weigh the reasonableness of their actions.

 

Pre-emptive Strike

There are circumstances where it is lawful for you to assault another because you reasonably believe you are about to be attacked, without having been attacked first. This will depend on the circumstances.

For example, if in the heat of an argument about footy, a man says to you, ‘To hell with this, I’m going to give you the flogging of a lifetime’ and draws his arm back with a clenched fist, it may be reasonable for you to believe an assault is imminent, and crash tackle the man to the ground, or punch him pre-emptively.

For another example, if a man yells across a wide street to you, ‘Where’s that 10 bucks you owe me? Maybe I should come over there and take it!’, it would not be reasonable for you to take 15 seconds to cross the street to him and push him over. Even if you claimed to believe you would be attacked, the circumstances would suggest it was not reasonable for you to believe an attack was imminent. Following the same example, if the man was striding across the street towards you with an angry facial expression with his hands curled into fists, then it may be reasonable for you to pre-emptively strike him.

As can be seen, much of the above is common sense. Whether self-defence is established is a question for a jury.

 

Defence of Someone Else

As premised earlier in this article, you are entitled to use force in defence of someone else as well as yourself. It need not be a person known to you. If you were to intervene in a fight and separate two people by pushing one of the women away from the fight, you would likely have a legal defence for the pushing.

 

Charges the Defence Applies To

In Queensland, there are multiple charges that can be laid in relation to violence: common assault, serious assault, assault occasioning bodily harm, wounding, choking, grievous bodily harm, and even murder.

Self-defence can be raised as a defence for each of these charges.

 

Defence of Property

Queenslanders have a limited legal right to defence their property, for example, ejecting trespassers from their property. As explained earlier, this must be reasonable. You can push a person off your land, but not clobber him with a weapon. This, of course, can be different if trying to repel a home invasion by armed burglars.

 

Who Must Prove it?

If the defence is raised on the evidence, then the burden is on the prosecution to disprove the defence.

 

Consequences of the Defence

If the jury is persuaded you used violence while acting in self-defence, you will be acquitted and found ‘not guilty’ of the charge. You are free to go about your life and there is no punishment by the Court.

Conclusion

This article is merely an overview. This defence will necessarily be applied where no two scenarios are alike. Needless to say, expert legal advice will be critical in assessment of such matters.

Read 261 times Last modified on Wednesday, 09 August 2023 16:51
Jacob Pruden

Jacob is a former barrister and now criminal defence lawyer with over 8 years experience appearing in courts throughout South East Queensland representing clients charged with criminal offences.