Self-Defense Law in Australia: Understanding the Requirements and Limitations

LAW
The law in Australia, when considered under the Evidence Act, 1995, lays the onus on
the prosecution to establish the facts against the defense and convince the court that it
was not self-defense but assault.1 The law permits the defender to take any defensive
measures which it believes to be necessary for self-defense. Unlike other areas under the
law, self-defense does not have to rely on any formulaic approach in the court, rather it
depends on the facts and the decision is left for the courts and a jury to take.2
In this particular case (Zecevic v DPP (1987) 162 CLR 645), which has become a
bench-mark in self-defense, the appeal was successful in the High Court and in a retrial
the honorable Dawson and Toohey JJ set-out the following requirements for self-
defense, and I quote – “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-defense 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.” Unquote.
This landmark judgement took into view s 10.4(2) of the Criminal Code, 1994 (Cth)
which states that –
A person can carry out his conduct in self-defense if they believe the conduct becomes
necessary for –
1. defending themselves or another person; or
2. protecting their property from any unlawful destruction, appropriation, damage
or interference; or
3. preventing criminal trespass on their land or premises; or
4. removing from their land or premises a person who is committing or trying to
commit a criminal trespass3.
1 The defence was first recognised in the Common Law in R v McKay
2 Zecevic v DPP (1987) 162 CLR 645
3 General defence appears in s15(1) Criminal Law Consolidation Act 1935 (SA) for defending a person's
life, and s15A(1) for defending property.