- self-defence
In Melbourne, fighting back after being attacked does not necessarily mean that you have committed an offence. The key questions are why you responded and whether the force you used was reasonable in the circumstances.
Under Section 322K of the Crimes Act 1958 (Vic), a person may rely on self-defence if their conduct was carried out to protect themselves or another person, and the conduct was a reasonable response to the circumstances as they perceived them.
For example, imagine a man is involved in a verbal argument with another person on a Melbourne street. The other person suddenly grabs his clothing and pushes him against a wall. The man tries to move away, but the other person continues to approach him and appears ready to attack again.
In response, the man pushes the other person away and immediately leaves the area.
If the matter were investigated by police, this conduct could potentially fall within the scope of self-defence.
First, there may have been an immediate or continuing threat, as the other person had already used physical force and appeared likely to continue the confrontation.
Second, the man's purpose was to stop the attack and protect himself, rather than to injure or punish the other person.
Third, pushing the person away to create distance and leave the situation may be considered a reasonable response to the level of danger involved.
However, the situation may be viewed differently if the man continues the confrontation after the danger has ended. For example, if the other person stops attacking and walks away, but the man follows and begins punching or kicking them, the conduct may no longer be considered self-defence. At that point, the purpose of the conduct may be seen as retaliation rather than protection.
Therefore, under Australian law, the key issue is not simply who threw the first punch. The more important questions are:
Was there an immediate danger, and was your response genuinely aimed at stopping that danger?
