Law In Australia: Formulaic Approach In The Court Essay

Question:

Discuss about the Law in Australia for Formulaic Approach in Court.

Answer:

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 trespass[3].

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-defence[4] 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 attacker[5]. 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.

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