When you are accused with an assault type of offence, your solicitor is able to raise self defence as an issue.
An accused only needs to raise self defence as an issue in their case. The prosecution then has to prove that the accused was not acting in self defence beyond a reasonable doubt.
The prosecution must show either:
1. That the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence; or
2. That what the accused did was not a reasonable response to the danger, as he or she perceived it to be.
The 1st issue above is a subjective enquiry. That is, it is what is in the mind of the accused. This enquiry considers the personal characteristics of the accused at the time they carried out the conduct. Matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the magistrate.
If the accused were for example, a small young girl who was in a troubled state of mind being accused of assaulting a large male person, the result may be completely different, if the large male was relying on self defence if accused of assaulting a young girl.
The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation the accused subjectively believed they faced. That is, would the Magistrate or jury consider the accused actions appropriate, taking into account the circumstances in which the events unfolded and what was in the mind of the accused.
Therefore, if there is no doubt that the accused didn’t believe the act necessary, or if there is no doubt that the act was unreasonable, self defence won’t succeed. But if there is any doubt, and that doubt is reasonable, then the charge must be dismissed.
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This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.