Examining Self-Defense Laws: A Case Study of Zecevic v DPP (1987)

This case study analyzes the legal principles of self-defense in Australia, particularly focusing on the Evidence Act 1995 and the landmark case of Zecevic v DPP (1987). It discusses the burden of proof on the prosecution to disprove self-defense and highlights the defender's right to take necessary defensive measures. The analysis emphasizes that self-defense claims are fact-dependent and subject to court and jury decisions. The study references s 10.4(2) of the Criminal Code, 1994 (Cth), outlining circumstances where self-defense is applicable, including defending oneself or others, protecting property, preventing criminal trespass, and removing trespassers. It also touches upon the requirement for the defensive actions to be reasonable under the circumstances and mentions relevant sections of the Crimes Act 1900 (NSW) and the Crimes Act 1958 (VIC) concerning self-defense.

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.

George was precisely doing what has been prescribed under the law and mentioned
above in points 3 & 4. Although ‘self-defense’ is generally implied when the person is
under threat, but actually it can definitely be applied in the defense of another
person/property and George was trying to protect his property from Simon. Many
jurisdictions in Australia now allow a person to use force in defense, including crimes
covered under s 418(2)(a) of the Crimes Act 1900 (NSW) or s 9AC, s9AE(a) of
the Crimes Act 1958 (VIC).
Self-defence4 of George can only be successful if it is proved that what he did was
reasonable under the circumstances. Similarly, assault/trespass on the part of Simon
must be justified that his response was proportionate to the threat. Law does not
acknowledge shooting someone if he shoves you in the chest as an act of defence, nor
does it encourages punches or attacks as a reasonable response on the part of the
attacker5. Although, injuring a person trespassing on the defenders property may not be
a valid reason for attacking the trespasser, it finally depends on the circumstantial
evidence provided in the case by both the parties.
4 In NSW, ss 418-423 of the Crimes Act 1900 now govern the law relating to self-defence and excessive
self-defence
5 In 2002, New South Wales reintroduced excessive self-defence as s421 of the Crimes Act 1900 (NSW).