Law of Self Defense claims some modest degree of expertise in the self-defense law of the United States, but not of any other nation. Nevertheless, it’s always interesting to see the common roots of self-defense law shared by the US and the other jurisdictions that share common historical foundations—in particular, other former colonies of Britain. Naturally, all such nations’ laws tend to share a common heritage in old English common law, many hundreds of years old.
Today I came across a write-up of a self-defense (“self-defence”) case out of Australia that illustrates some of these commonalities, and differences. You can find that write-up, apparently by an Australian law firm, by clicking here.
This particular case comes to us out of Australia, and for purposes of this post I’ll just assume that the writers (presumably lawyers, aka “solicitors”) have got their own law correct. All that I’ll do here is note the many parallels to, and inconsistencies with, American self-defense law.
For example, it is apparently the case under Australian law that once self-defense has been raised by the defendant (in the US we would say, once the defendant has met his burden of production), the burden of proof then falls upon the prosecution to disprove self-defense beyond a reasonable doubt (the burden of persuasion). This is the same legal principle as applied in the United States.
This particular case involves a man who was convicted of aggravated assault after having used physical force against a woman, despite his having argued self-defense as a legal justification for his admitted use of force.
The uncontested facts are that the man lived with his girlfriend, but had previously had an occasional sexual relationship with another woman, the woman who would be the “victim” in this case (meaning, the victim of his use of force).
The victim was that the man had chosen to stay with his current girlfriend and dump the victim, and went to the man’s house to confront him on this issue. She first called him to let him know she was coming, and he urged her to stay away.
When she nevertheless arrived at his house he spoke to her through the door, re-affirmed his preference for his girlfriend, and again told her to go away. She responded by attempting to breach the door of the man’s home with sufficient force that she caused physical damage.
At this point the stories begin to diverge. The man testified that the door was effectively breached, at which point he grabbed the woman by the arm and throat and pushed her back to a fence about 10 feet away. (Unfortunately for his narrative he would tell investigators that he “probably squeezed her neck a bit,” a statement that would be used against him in support of the assault charge.)
The woman victim would testify to a considerably greater degree of force by the man. She claimed that he charged at her, grabbed her throat with both hands, pursued her to her vehicle, attempted to punch her while she was sitting in her car, again put his hands around her throat while she sat in the car, then threatened her with a piece of broken plastic.
The man was charged with assault, which was then bumped up to aggravated on the grounds that the man’s prior sexual relationship with the victim qualified as a former domestic partnership.
At trial (which I suspect is run considerably differently than in the United States) the Magistrate (read, “judge”) found that the woman’s account was simply not credible, and indeed that the woman appeared motivated by “venom, vitriol, and vengeance.” The Magistrate also believed that the victim had kicked in the man’s door and would not go away when requested.
Interestingly, the legal issues raised by the defense are immediately recognizable to those of us in the United States—both self-defense and defense of dwelling (“castle doctrine”). Indeed, the Magistrate in this case found that the man had the right to use force to protect his property.
Nevertheless, the Magistrate ruled that although the man had the right to use force for this purpose, the degree of force used was excessive under the circumstances—recognize the element of “proportionality,” anybody?—and thus could not be justified. As a result the man was found guilty of the charged assault.
The man then appealed his conviction to the Supreme Court of South Australia, the opinion of which can be read here. That court did something a US appellate court is not inclined to do, and re-evaluated the facts of the case (US appellate courts generally stick to review of legal, not factual, decisions and findings.) It found that under the circumstances—the woman victim was apparently rather large in size and very strong—that the man’s defensive force was not excessive, and thus was not disproportional, and so was legally justified under the circumstances.
As a result, the Supreme Court of South Australia reversed the man’s conviction.
Also interesting is that apparently under Australian law the element of proportionality is explicitly waived when a defender is dealing with a home invader:
In cases of home invasion the law (section 15C of the Criminal Law Consolidation Act 1935) says that if the person defending their property genuinely believed that the other person was committing or had just committed a home invasion then their actions do not have to be objectively reasonably proportionate but it is sufficient that they considered them to be necessary and reasonable.
American law naturally tackles this same fact pattern, but generally in a different way—usually rather than explicitly waiving the element of proportionality entirely, US law will create a legal presumption that the defender was facing a deadly force threat, and thus would be justified in using deadly defensive force.
Anyway, I thought this was interesting, and I hope you do, as well.
Attorney Andrew F. Branca
Law of Self Defense LLC