Charged With Assault? When Can You Claim Self-Defence?
An assault allegation can arise quickly. An argument escalates, someone becomes aggressive and within moments police are involved.
If you were protecting yourself or another person, you may believe the situation is straightforward because the other person started it. Legally, however, self-defence involves more than establishing who acted first.
In short: self-defence can provide a complete defence to an assault charge in NSW if you believed your actions were necessary to defend yourself or another person, and your response was reasonable in the circumstances as you perceived them.
When Does Self-Defence Apply in NSW?
Under the Crimes Act 1900 (NSW), a person is not criminally responsible for an offence where their conduct was carried out in self-defence.
For an assault matter, there are essentially two questions:
- Did you believe your actions were necessary to defend yourself or another person?
- Was what you did a reasonable response in the circumstances as you perceived them?
The first question focuses on what you genuinely believed was necessary at the time. The second considers whether your response was reasonable given the circumstances as you perceived them.
Self-defence can also apply in certain circumstances involving the protection of property or preventing unlawful deprivation of liberty.
What If the Other Person Started the Fight?
The fact that another person behaved aggressively or used violence first can be important evidence, but it does not automatically establish self-defence.
There can be a significant difference between using force to stop an imminent attack and continuing to use force after the threat has passed.
The surrounding circumstances matter, including what happened immediately before the incident, the level of threat you believed you faced and the nature of your response.
Importantly, self-defence is not limited to situations involving minor force.
WMD Law has assisted clients in Local and District Court matters where self-defence has arisen in serious circumstances, including:
- A client who believed it was necessary to defend himself from an imminent attack by arming himself and using weapons against his assailant. WMD Law successfully relied on self-defence and the assault charges involving a dangerous weapon were dismissed.
- A client who armed herself with a knife and stabbed her partner after suffering years of significant domestic violence. WMD Law was able to raise self-defence, ultimately leading to the charges against her being withdrawn.
These matters demonstrate why self-defence cases need to be considered on their individual facts. The use of a weapon does not necessarily prevent self-defence from applying, but the circumstances surrounding the person’s actions are critical.
What Evidence Can Be Important?
Assault allegations often involve competing accounts of what occurred. Relevant evidence may include:
- CCTV or security footage;
- mobile phone recordings;
- photographs of injuries;
- text messages or other communications;
- witness accounts;
- medical records; and
- statements made to police.
Evidence obtained early can make a substantial difference to how an incident is understood.
If the incident occurred at a restaurant, hotel, workplace, licensed venue or another location with CCTV, obtaining advice promptly may also be important because footage may not be retained indefinitely.
Who Has to Prove Self-Defence?
Once self-defence is properly raised on the evidence, the prosecution bears the burden of proving beyond reasonable doubt that the accused did not act in self-defence.
That does not mean simply saying “I acted in self-defence” will result in a charge being dismissed. The available evidence and the circumstances surrounding the incident still need to be carefully considered.
An Assault Charge Can Have Consequences Beyond Court
For many people, the concern is not limited to the potential criminal penalty.
An assault allegation can create significant personal and professional consequences, particularly for business owners, executives and professionals whose reputation is important to their livelihood.
Depending on the circumstances, a charge or conviction may have implications for:
- employment or professional standing;
- regulatory or licensing obligations;
- business reputation;
- family law proceedings;
- travel; and
- other personal or financial interests.
Where an alleged assault occurs in a domestic relationship, an Apprehended Domestic Violence Order may also be sought alongside the criminal charge. For these reasons, how the matter is handled from the outset can be important.
Should You Speak to Police Before Getting Legal Advice?
If police wish to question you about an alleged assault, it can be tempting to immediately explain what happened, particularly if you believe you were acting in self-defence. However, statements made early in an investigation can become important evidence later.
There is a general right to silence in many circumstances, although exceptions and special provisions can apply. Obtaining legal advice before participating in a formal police interview can help you understand your position and options.
Frequently Asked Questions
Is self-defence a complete defence to assault in NSW?
Yes. Where self-defence is established under NSW law, the person is not criminally responsible for the offence.
Can I defend someone else?
Yes. Self-defence can include using reasonable force where you believe it is necessary to defend another person.
Does it matter who threw the first punch?
It can be relevant, but it is not the only issue. The Court considers whether you believed your actions were necessary and whether your response was reasonable in the circumstances as you perceived them.
Can self-defence apply if a weapon was used?
Potentially, yes. The use of a weapon does not automatically prevent self-defence from applying. The Court must consider the circumstances, including the threat the person believed they faced and whether their response was reasonable.
Getting Advice Early Matters
Assault allegations are highly dependent on the particular circumstances. A few seconds of an incident can be interpreted very differently by the people involved, witnesses and police.
If you believe you were acting to protect yourself or another person, it is important that the available evidence and the circumstances leading up to the incident are properly considered.
WMD Law’s Criminal Law team has extensive experience representing clients where self-defence is an issue and can provide discreet advice from the earliest stages of a police investigation through to court proceedings. If we can assist you please call our criminal law team on 9525-8688 or click here to contact us.
By Kevin Dwyer, Director, WMD Law
