Martial Law – The aftermath of Self defence

Martial Law – The aftermath of Self defence

Regardless of what martial art you practice or teach, it is likely that self defence training is part of what you do.

There are many views about what self defence is however a general definition includes, “the defence of one's person or interests, through the use of physical force.”

A question that I am often asked is, “If I use self defence and the person who attacked me is injured what might happen to me?”

The Crimes Act in various states provides defences where a person is not criminally responsible for an offence, (such as assault), if the conduct constituting the offence is carried out in self defence.

The basic elements required to be able to use the self defence protections are:

1. Your behaviour or response to the attack was necessary
2. Your conduct was a reasonable response in the circumstances you perceive them. This includes the use of reasonable force.

An attacker cannot claim they acted in self-defence against any counter attack.

The High Court has defined the test for self-defence, for both homicide and non-homicide cases, as follows: The question to be asked is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did? (Zecevic v Director of Public Prosecutions)

There are two elements to this test:
•The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary (known as the “subjective element”); and
•That belief must have been based on reasonable grounds (known as the “objective element”).

The reality of a self defence situation is this:
You become involved in an argument which develops into a fight. You defend yourself and the other person is injured.

Usually, the uniformed police from the local police station will be the first to arrive. They will take your details and ask you basic questions about what happened. Your responsibility at this time is to provide your name, address and date of birth.

It is highly likely that you will be suffering from some degree of shock and I recommend that you politely decline to provide any other information.

Police will then speak to any witnesses, obtain statements and look for evidence.
You may be arrested and taken to a police station for further enquiries. You are not required to accompany police to the police station unless you are actually placed under arrest and informed of this.

The situation now depends on the severity of the injuries to the other person. If the injuries are minor it is likely that you will continue to speak with the arresting officers. If the injuries are more serious or the person has died detectives will become involved.

Regardless of who handles the matter someone will want to interview you to find out what happened and get your version of events. Police interviewing tactics will be dealt with next month.
You may be cautioned that what you say now may be recorded and may later be used in evidence.

Once again I recommend that you politely refuse to say anything else and do not agree to be video recorded.
The reasons for remaining silent are:
1. You will be in some degree of shock.
2. You will be scared/nervous and possibly intimidated by the situation.
3. Saying too much under these circumstances may adversely affect your defence.

So what should you do?
1. Advise the police that you do not wish to say anything at this point in time.
2. Tell police that you are not willing to participate in a formal interview.
3. Request to make a phone call to your solicitor.
4. Request to be released to allow you to consult with your solicitor.

If you live in New South Wales call your solicitor for advice but do not ask them to meet you at the police station.

On 1 September 2013 in NSW a new form of police caution came into place as a result of an amendment to section 89A of the Evidence Act for serious offences; that includes where a person has been injured.
In essence the new caution is; “You do not have to say or do anything, but it may harm your defence if the you do not mention when questioned something that you later rely on in court, anything you do say or do may be used in evidence.”

This basically means that if you say nothing, it can be held against you. However to use this section, and administer this caution, a legal practitioner (your solicitor) representing you must be present at the police station.

The right to silence is still protected in most other states and territories.

In summary:

If you are arrested for using self defence:
1. Do not provide any details other than your name, address and date of birth.
2. In NSW, do not ask a solicitor to come to the police station.
3. Do not accept advice from any solicitor who might be present at the police station.
4. Once you are released consult a solicitor as soon as possible.

The author of this post, Phil O’Brien is a solicitor with Sydney firm Teddington Legal and a martial arts instructor who has taught reality based self defence in Western Sydney for the past twenty five years, he has extensively studied both the physical and psychological elements of self defence.

Should you require the services of a solicitor in regard to the use of self defence or any other legal matters, Phil can be contacted at phil@teddintonlegal.com.au or via www.teddingtonlegal.com.au or directly on 0409 078 322

Disclaimer.

This is general information only; it does not replace advice from a qualified solicitor in your state or territory.  It is recommended that should require legal advice you should seek advice from a suitability qualified and experience legal practitioner in your state.

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Penrith Self Defence & Bukido Martial Arts

Penrith Self Defence & Bukido Martial Arts