It’s all about Reasonableness and Appropriateness
By Robert Platteel Black Belt 2nd Dan, Wind School of Ju Jutsu (V1.2)
Life requires constant cost/benefit analysis and we often see those who make wrong decisions pay dearly. Our approach to martial arts should be the same. We dedicate years of time and effort to our respective martial arts because we enjoy what it offers and because it helps minimise the very real risk of personal injury from attack. Unfortunate but true, when we minimise one risk we often create or increase a range of others. This paper will examine such risks and discuss the complex legal minefield each and everyone of us walks when we chose to defend ourselves, our family and friends or even a stranger on a street corner.
Self defence; I wish we didn’t need it!
An overview of the use of force
Members of a society set standards controlling their behaviour, those standards are passed from generation to generation and because our culture is so diverse there are many opinions regarding what is justifiable when using force against another. Some people feel quite justified in hitting a person who merely uses words to aggravate them and others would not lift a finger against an aggressor believing the aggressor will be dealt with by other means.
A public census would reveal a general standard regarding the use of force against another. That standard would probably reveal an opinion that a reasonable amount of force may be used only when necessary and only in amounts necessary to control the situation. This general common sense view has been adopted by the law many years ago and continues today in a similar form.
The law makes it clear that only REASONABLE FORCE in APPROPRIATE CIRCUMSTANCES may be used in self defence.
What is reasonable?
The law regarding reasonableness has been examined time and again by the courts. You will not find its definition in any statute book. Its definition comes from numerous court decisions handed down over the years. Reasonable force is considered an amount that is appropriate in the circumstances, a balanced portion. Imagine the concept of reasonableness as a set of scales with the aggression on one side and your response on the other. A reasonable response will be one that balances the scales. Further described, it is the amount of force that the reasonable and prudent person would us in the circumstances. This means, the action taken would be that of the average ordinary person.
What is appropriate?
So, now we know what reasonable is, what does the Law say about “APPROPRIATE”. When is it appropriate to use reasonable force? The law sets out a number of circumstances when it may be appropriate to use reasonable force, like for example when arresting a person lawfully or when ejecting a trespasser from private property or in self defence. This paper will examine both, the extent to which the law allows you to use force and in what circumstances it may be used, concentrating primarily on self defence.
The Law of Self Defence
To understand the law of self defence it is firstly important to examine assaults and the associated law.
The Law of Assault
There are no Acts of Parliament which define the ingredients of assault in New South Wales. Its definition comes from numerous court decisions passed over many years, both in Australia and in England.
In England the Law distinguishes between assault (being a threat or attempt), and battery (the actual hitting, stabbing shooting, etc.), of another person. In New South Wales “battery” is included as part of the offence of “assault”, therefore in this state there is no such offence as “assault and battery”, and the offence is simply called “assault”.
The following describes in detail what the Courts have held to be assault and includes extracts form case-law that has helped form those opinions.
An assault may be defined as:-
The unlawful use of physical force against the person of another and includes an unlawful attempt or threat by bodily act or gesture to use force against the person of another under such circumstances that the person making the attempt or threat actually has or appears to have the present ability and intention to carry out his/her purpose.
This means that to constitute an assault a person must:-
- Use unlawful force against another person, or
- Attempt to use unlawful force against another person, or
- Threaten to use unlawful force against another person.
It can clearly be seen here that there are three ways in which the crime of assault can be committed:
1: Use of unlawful force – The actual application of the force threatened, for example a punch to the nose.
2: Attempt to use unlawful force – An assault can be committed by attempting to apply physical force against another person.
This means where the offender attempts to make contact with the victim within range, but misses or otherwise fails to make contact. To clarify this point further, it means that the application of physical force is not necessary because the mere attempt to apply force is itself an assault.
In cases such as this it is important to define the term “attempt”. At law, an assault has been attempted when, through some physical act or gesture made by the offender, the victim honestly and reasonably believes that they are in immediate danger. To satisfy this legal requirement the victim must have the fear or apprehension that the offender has:-
(i) The intention to apply the force, and
(ii) the present means or ability to carry out the act.
Therefore, if a punch is thrown at another person within range, but it is clear from the situation that the person throwing the punch has no intention of making contact, and the victim knows this, then there is no assault. Where two friends greet each other with a play fight, there is no assault, because neither has the intention of making unlawful contact and each is aware of this.
However, if the victim is not aware that the offender has no intention of making contact but has reasonable fear or apprehension that he/she is in immediate danger, then an assault has been committed.
3: Threaten to use force – An assault can, in some cases, be constituted by the threat to apply physical force against another person.
This means where an offender threatens, by some bodily act or gesture, to use unlawful force against another person, but does not actually touch the victim, the offender may be committing an assault. The definition of the term “threat” at law is an assault if, when force has been threatened through some physical act or gesture made by the offender, the victim honestly and reasonably believes that they are in immediate danger.
To satisfy this legal requirement the victim must again have the fear or apprehension that
the offender has:-
(i) the intention to apply the force, and
(ii) the present means or ability to carry out the act.
If a person clearly intends to strike another with a baseball bat and threatens a victim to do so, but is unable to do so because the two are separated by a river, then there is no assault, because the offender does not presently have the ability to carry out the act.
However, an assault is committed if that same offender discards the baseball bat and replaces it with a rifle that apparently has the present ability of shooting across the river and threatens to shoot. It is irrelevant if later the rifle is found to be a toy as long as the victim believes the rifle to be real, then an assault is constituted.
As a common law principle mere words, no matter how insulting or menacing, can not on their own constitute an assault. Words must be coupled with some act, gesture or circumstances, which lead to the reasonable belief in the mind of the victim that they are in immediate danger. This does not mean that the victim must be in fear of sustaining bodily injury, but that he/she should have fear or apprehension that unlawful force will be used against them.
Proof of Assault
There are two elements that must be satisfied before the offence of assault can be committed. The first is the Actus Reus, the physical act. The second is the Mens Rea or the intention to commit the act. The intention to commit the act can be either deciding to do something or doing something without fearing the consequences of an act or omission which amounts to the reckless indifference to human
life or suffering.
Therefore, if a person was to throw stones into a crowd without caring that they may hit and injure someone, the Actus Reus element is satisfied by the throwing of the stones, while the Mens Rea element is satisfied by the fact that the thrower consciously disregarded the possibility of someone being injured by the act.
Following are some instances that would constitute an assault. They are actual cases:-
- An attempted forced kiss.
- A threat to kiss or strike a person.
- Wrongful detention, holding someone against his/her will, even though there has been no touching.
- In certain circumstances, a threat over the telephone.
- Presenting a firearm at a person within range.
- Presenting a replica or toy firearm, which appears to be real, at a person within range.
- Pushing a person in anger.
- Spitting at a person.
- Throwing a firecracker.
- Striking a horse and the rider is thrown off.
- Cutting or injuring the clothes a person is wearing.
Lawful use of force
There are many circumstances in which the use of physical force is lawful. There are various acts which, also might come within the legal definition of assault, are either authorised, justified or excused by law. They include:-
a. Lawful Chastisement by a Person in Authority
It is lawful for a parent to use on a child under their care such force as is reasonably necessary under the circumstances, for the purpose of correcting wrong behaviour. If the force is inflicted to satisfy rage or is excessive it is unlawful. There is continuous debate about law reform on this subject.
b. The Use of Physical Force when Consented to.
If a lawful game is being played according to the rules, a technical assault by one participant on another is not punishable because the game in itself is lawful and all the players, by joining in on the basis of the rules, have accepted the risk of being assaulted.
For example, during martial arts, boxing or wrestling matches or while playing football, etc. Even though the striking might be viewed as an assault each time contact is made, at law this is not. This is obvious because we give our consent for that conduct to occur and it is done without the necessary Mens Rea (evil intent). If, however, someone looses their temper and strikes out with a blow in anger, then this indeed is an assault even if the blow is parried or does not connect. A lawful prosecution for assault may be successful, for this is clearly outside the contract of the activity.
Consent to assault is no defence under the following circumstances:-
- Where the game or activity itself is illegal. For example, an illegal fight.
- Where consent is not given freely. For example, a rapist threatening to kill a child unless its mother agrees to being assaulted, or by an imposter pretending to be a surgeon, inducing a invalid to submit to being operated upon by him.
- Where the assault itself constitutes an unlawful act. In other words, no one can consent to an assault resulting in bodily harm.
- Where there are public grounds for prohibiting the act. For example, the offences of indecent assault on male under 16 years, etc.
- Where the assault constitutes a breach of the peace.
c. Lawful Arrest
Section 352(1) of the Crimes Act (1900) gives power to anyone to arrest a person for any offence, and by inference allows the person making the arrest to resort to the use of reasonable force if necessary. This topic is not being dealt with in this paper.
It is natural that a person who is attacked should resist and such resistance is lawful so long as it meets certain tests at law. This right of defence to include the defence of any other person.
If an occasion arises entitling a person to resort to force when defending an attack, he/she is entitled to use as much force as is appropriate to the danger in which he/she stands or in which, on reasonable grounds, he/she believes he/she, or the person they are defending, stands.
The law, relating to self-defence in general, corresponds with the ordinary notions of ordinary people. It is both law and common sense, that a person who is attacked may defend themselves, but only to the extend of doing what is reasonably necessary in that particular attack.
In some cases it would be reasonable and sensible to avoid the danger or threat, but other attacks may be serious and dangerous, and a person may be in immediate danger and may have to take some instant defensive action. When the danger has passed and no hazard exists, a person is not justified in using force as a way of retribution against the attacker, as this would be pure aggression and constitute an assault.
It is clear that, in all cases of self-defence, there are two main issues:-
(a) The nature of the attack.
(b) The proportionality of the response.
The first issue, being the nature of the attack, is the defender’s perception of the danger believed to be facing. The second issue is the defender’s perception of proportionality of the response to that danger. This means, the force used by the defender must be reasonably proportionate to the danger which he reasonably believed they faced.
Accordingly, if the defender makes an error and believes that he/she is being attacked with a knife when in fact is being attacked with a fist, the infliction of a knife wound by them in response might be justifiable if he/she believed upon reasonable ground that it was necessary in self defence to do what he/she did. If the delusion was unreasonable and disproportionate, they may be guilty of wounding.
The legal test for self defence
The legal principle for self defence comes from the Australian High Court decision set down in Zecevic v DPP. In this judgement the following rule for self defence was established:-
It is self defence if the accused person believed on reasonable grounds that it was necessary in self defence to do what he or she did.
Recently in New South Wales the law of self defence was codified at section 418 of the Crime Act 1900.
It is consistent with the common law position. It states;
- A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
- A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of
another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
(e) and the conduct is a reasonable response in the circumstances as he or she perceives them.
IN ALL CONFRONTATIONS YOU MUST ENSURE YOU DO NOT BECOME THE AGGRESSOR WHEN ACTING IN SELF DEFENCE. THE LAW MAKES IT CLEAR THAT YOUR ACTIONS AND BELIEFS MUST BE REASONABLE.
e. In defence of property
A person has the right to defend his property. Reasonable force may be lawfully used in expelling anyone who is trespassing in your house or on your land if no milder method of causing them to leave is available.
If entry has been effected forcibly, as in the case of burglary, reasonable force may be used at once to expel the trespasser. In the case of a peaceful trespasser reasonable force is justified only after the trespasser has refused a request to leave.
A similar right also applies in the case of moveable property, such as your car, your purse or any other item you legally possess. Again, if the force used in defence of property is unreasonable, in that it was not proportionate or was more than necessary, then the assault becomes punishable.
f. Accidental use of force
The use of force cannot constitute an assault unless it is committed with actual intention. Accidental contacts, such as jostling in a queue or a collision with another pedestrian on the footpath, are not punishable under the criminal law, either because there is not sufficient negligence to warrant criminal action or because the victim consents to undergo the risk of such occurrences. The application of accidental force may result in some other criminal charge, such as manslaughter, if your actions are so grossly negligent they are considered criminal. Likewise you may be civilly liable for your actions.
Civil Law and Liability
To this point we have considered criminal liability. It is appropriate to briefly consider civil liability as this area of the law is being used more frequently to seek damages against persons who use violence.
Whilst the criminal law may not prosecute an individual for the use of violence, victims may seek damages from an aggressor under civil law. There are examples from America where individuals have been acquitted criminally for murder but held liable civilly for unlawful killing.
Closer to home, the recently publicised case in NSW were a trespasser was awarded $50,000 damages because he was repeatedly beaten by the home owner who found the trespasser crouched in his laundry. The fact the home owner was not criminally charged in this case serves to remind us of the legal liability which we face when acting in defence.
Even if the law does not hold you criminally liable for your acts you may well be held to account civilly for any harm you cause. Just as you are not criminally guilty of assault if you accidentally bump an old lady over in the street breaking her hip you are likely to be held liable for her medical expenses and any subsequent punitive damages if it can be established your actions or omissions were negligent or reckless.
It is no different from accidentally pushing a fence over without criminal or malicious intent, whilst you will not be held criminally liable for malicious damage you are likely to pay damages to fix your mistake if your actions were in anyway contributory or negligent.
Weapons and the Law
It is pertinent for the martial artist to realise that the use, carriage and possession of weapons are restricted. In Australia the laws vary from state to state but generally each state has a list of restricted weapons many of which are used in the martial arts.
You should familiarise yourself with the laws in your state and seek out the general exceptions that usually apply to the possession of certain weapons. Each state has a registration system for prohibited weapons and permits are generally available from the police for persons with legitimate claim for the possession of a weapon. Such exemptions usually apply for bona-fide sporting activities such as in registered martial arts clubs.
As a general rule it should be assumed, that if it looks like a weapon, or is carried for the purpose of being a weapon, or can be modified for use as a weapon then the law will consider it a weapon. Even the most non offensive implement can be deemed to be a weapon if the user carries it or modifies it in some way to make it an offensive implement.
The best advice is, do not carry an implement for the purpose of protection, that includes sticks along side the drivers seat of a car, miniature batons on the end of key rings or even small spray cans of offensive substances to spray in the face of attackers.
If you use weapons for training seek the advice of local law enforcement authorities regarding their status. If they are not prohibited weapons but could be deemed offensive implements if used or carried inappropriately then only carry them for a lawful purpose such as to and from training and in an inaccessible location such as a sealed bag or the boot of your car.
As with all aspects of our daily lives everyone is held accountable for their own actions. If you choose to use force in any circumstances make sure it is legitimate lawful force.
After all, if you were to hit another car whilst driving and it was your fault even if it was accidental you would expect it to cost you dearly. Treat your self defence the same way and think long and hard before you act or more to the point think long and hard while you train.
In my view there is a clear distinction between being an expert in the martial arts and an expert in self defence. In some cases there is over a thousand years of social evolution between the two.
About the author
Robert is a Detective Inspector with the NSW Police where he manages the Crime Management Training Programs, which include detective and intelligence officer training. He is a former police prosector and has worked in the private sector as a risk manager as well as lecturing extensively for Charles Sturt University on the subject of risk management, fraud prevention and investigation. He has a Bachelor of Policing (Investigations) and a Graduate Diploma in Criminology from Sydney University Law School.
This paper is the author’s interpretation of the law of self defence and other subjects discussed and is not to be construed as legal advice or a definitive and complete discussion of the subject. Nothing in this paper is to be taken as legal advice. Individuals should seek independent legal advice on this subject to ensure full compliance with the law. The law of self defence is complex. In an attempt to be succinct this paper contains unreferenced materials from a variety of legal texts and other sources. It is an extremely condensed interpretation of the subject and does not purport to present all aspects of the law of self defence. For more comprehensive readings the author recommends contacting legal publishers such as the Lawbook Company (Freecall 1800 650 522) or Butterworths Legal Publishers (Freecall 1800 772 772). Australian Ju Jitsu Association Inc Annual National Seminar – 2002 – Self Defence and the Law. © Reproduction of any or all parts of this document by any person or group, other than members of the AJJA, is not permitted without written approval of the author.