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Defending yourself in Victoria

9News reported on 17 April 2020 that two female international students were racially assaulted by two unknown female offenders in a CBD street. After the incident, Melbourne Lord Mayor Sally Capp expressed her appalment over the incident.

In this article, we explore what a Melburnian can do when faced with violence.

 

Q:           What constitutes “Violent Behaviour”?

  • It may come to one’s surprise that the threshold of a violent behaviour is relatively low – which includes any application of force to the complainant’s body (i.e. physical violence) and threatening which does not involve the application of force (non-physical violence). These are termed Assault.

Common violent behaviour includes assault, affray, causing injury, threats to kill and threats to inflict serious injury.

Q:           What if someone threaten to harm:

  • Any threats made with the intention that the complainant to apprehend the immediate application of force to his or her body could result in assault. This includes mere words and gestures.
  • When facing non-physical violence, it is recommended that you leave and/or contact the local police where possible.

Q:           What are my options when facing violent behaviour?

  • It is strongly recommended, if the circumstances allows, that you should contact the local police rather than being provocative or even enter into a fight. It’s always best to avoid any possible violence.
  • If you enter into a fight, it is likely that you would also be committing assault.
  • We also recommend that you ask for help from someone around you.

Q:           Is it illegal that someone pushes me?

  • Unless there is a lawful excuse, pushing someone can constitute assault. In this context, lawful excuse includes consent, touching in the course of an ordinary social activity, self-defence and ejecting a trespasser.
  • If an intentional touching is sexual, then such conduct may amount to sexual assault.

Q:           What should I do if I am attacked or bashed by someone?

  • You should immediately seek help from someone around you and contact the local police as soon as possible.
  • If you have contacted the local police and, while waiting for the police, you are unable to leave the scene, then you should consider defending yourself from further assault.

However, it’s worth noting that only proportionate response should be made when self-defending, any excessive self-defence response might indicate an intention to use the circumstances for aggression or retaliation rather than for self-defence. For example, if someone merely pushed you and were about to leave, and you responded by seriously injuring him/her with a wooden bat, then self-defence is unlikely to apply.

So what is Self-Defence

  • Prior to 2005, self-defence in Victoria was governed by the common law. For all alleged offence committed on or after 23 November 2015, statutory self defence applies.

Section 322k of the Crimes Act 1958 provides that a person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

 

  1. Belief in Necessity
  • The High Court of Australia provided the first limb of the test for self-defence in Zecevic v Director of Public Prosecutions back in 1987. In summary, this is a subjective test and concerns about whether the accused genuinely believed that the conduct was necessary and in such way as self-defence.

 

  1. Reasonable Response
  • The second limb of the test is an objective one and assess whether or not the conduct was a “reasonable response”. The reasonableness of the response must be considered in light of the circumstances as subjectively perceived by the accused.
  • It is worth noting that self-defence is subject to strict legal requirements. People may use reasonable and appropriate force to defend themselves from unlawful violence. S/he must also believe on reasonable grounds that what they are doing is necessary in self-defending themselves.

 

  1. Factors that may be taken into account when determining whether a response is self-defence
  • The surrounding circumstances;
  • The accused knowledge of the facts;
  • The relationship between the accused and complainant;
  • Whether the complainant had been the initial aggressor;
  • The proportionality of the accused’s response to the harm threatened;
  • Whether the accused failed to retreat.

 

  1. Can I sue someone who assaulted me?
  • For most criminal offences, the local police will usually prosecute the accused for any alleged offence. For this reason, we recommend that you contact the police if you encountered any violent behaviour. If the police consider there is sufficient evidence, then the accused might be prosecuted.

 

Recommendation

  1. Whenever you face any violent behaviour, you should keep calm. Tell the other side that you are entitled to call the police. Be prepared to leave the scene, ask for help from someone around, or contact the police.
  2. Analyse the intention of the other party – was it a robbery or that injury would likely be inflicted? Is it likely that s/he has a weapon? Is there any other person who could be an accomplice?
  3. Your safety always comes first over any other thing else. If it’s all about money only, then you should consider giving your personal property and leave.
  4. Pay attention to the surroundings, are there anyone else around who may help? Try to leave the scene or ask for help if necessary.
  5. Utilise your mobile’s quick-dial function and set it to 000 so that it can come in handy.
  6. Be familiar with how to record audio or video with your mobile.
  7. Consider the possibility of retreating and leaving, and defending yourself if necessary.
  8. For females and students, try to get a company with you, especially when walking down the street at night or somewhere you are not familiar with.

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