Being charged with assault can be a stressful experience, especially if you were acting to defend yourself against an aggressor.
The scene of an alleged assault can be messy and confusing, and some people handle themselves better than others when it comes to speaking with police just after a traumatic incident.
To complicate things further, police will already have received an amount of information before arriving at the scene and may have formed a conclusion as to the identity of the aggressor.
All of this can lead to the common situation where the wrong person is charged with the assault – where the person who acted in self-defence is charged rather than the actual aggressor.
If you have been charged with assault, you can raise self-defence if the alleged assault was committed while you were trying to protect yourself, your property, or another person. If you raise self-defence, the prosecution will have to prove beyond reasonable doubt that you did not act in self-defence according to the law. If they cannot do this, you must be acquitted; in other words, found ‘not guilty’ of the charges.
Whether or not you will be successful depends largely on the specific facts of the case and what was going through your mind at the time that you acted.
When it comes to self-defence, there is no concrete measure of what is considered reasonable force according to the law. The level of force used in self-defence will depend on the level of the perceived threat and what a ‘reasonable’ person would do in similar circumstances. In the case of a severe attack with a dangerous weapon, it may be considered reasonable for a defendant to also grab a weapon and strike the aggressor, even if it leads to the infliction of serious injuries.
Meat cleaver attack in court
In a recent case, a Sydney truck driver was found not guilty after he used a meat cleaver to sever the hand of a man who was attacking him. Majid Al-Asadi was attacked by three men while he was on his way to work, one of who shot him with a taser, while another man wielded a meat cleaver. When the man dropped the meat cleaver, Mr Al-Asadi picked it up and and swung it at his attackers, severing one of their hands in the process. Mr Al-Asadi was then arrested and charged, spending eight days in custody before being released on bail.
During the next few months, a great deal of information was obtained by his lawyers which was not available to police who attended the scene. This included the fact that for months leading up to the incident, Mr Al-Asadi had been the victim of ongoing harassment by his attackers over the alleged theft of a mobile phone. This harassment had included stalking, firebombing his car and assaulting his wife, as well as sending video footage of balaclava-clad men wielding guns. In spite of all this evidence, he was still considered by the prosecution to be the guilty party and had to face a jury trial in Downing Centre District Court.
The information was presented to the jury in court, as well as the fact that the main witness for the prosecution was a close associate of one of the attackers, and was driving the vehicle the men had used to escape in after the attack.
In Mr Al-Asadi’s case, the extent of the force he used was considered reasonable under the circumstances, which meant that he was found to be not guilty.
Lethal force can be considered self-defence
In some cases where there has been proven harassment and intimidation, along with an imminent threat, even the use of lethal force can be considered self-defence, particularly when it comes to domestic violence situations.
In early December, 24-year-old Jessica Silva was found not guilty of murdering her ex-partner after she stabbed him five times outside her home. Ms Silva had pleaded not guilty on the grounds of self-defence after being charged with murder. Investigations revealed that she had been a victim of sustained domestic violence and abuse at the hands of her ex-partner and that he had threatened to kill her before turning up at her home, where she stabbed him. Although Ms Silva was found not guilty of murder, she was found guilty of the lesser charge of manslaughter.
Police had coincidentally been monitoring the deceased’s phone conversations during a drugs investigation and had direct evidence of his verbal threats. They also had recordings of Ms Silva telling her brother that she was going to stab her ex-partner after he threatened to kill her.
Constraints in self-defence argument
There are constraints that apply if you want to use self-defence as an argument in court. To be successful, you will need to show that you believed the extent of the force used was necessary under the circumstances and that it was a reasonable response to the circumstances, as you perceived them.
Although there are no measurable standards as to what can be reasonable use of force, once you raise self-defence as an argument, it’s up to the prosecution to prove that the level of force you used was unreasonable and not necessary if they want to secure a conviction.
If you feel that you have been wrongly charged with an assault, its important to consult a specialist criminal defence lawyer with experience in getting assault cases withdrawn and thrown out of court.
Have a look through their case results to see if they have won cases similar to your’s, and ensure that you ask them how they propose to fight for your case to be dropped or thrown out.