Take the southern district of Brisbane, for example, which in recent years seems to have gradually become a favorite place for thieves and robbers. As a result, many families have been "forced" to install cameras and upgrade anti-theft doors and windows as a result of rising robberies and robberies. In addition to taking various security precautions, we suggest that residents need to know properly how to protect themselves legally when they have to face-to-face with robbers or burglars.
In response to questions about rising crime rates and high-frequency self-defence protection, the Australian Law Review invited Lin Huiming lawer and legal Assistant Ren Yuan to ask and answer questions in ten words. Explain and analyze the relevant laws and regulations and practical application of "self-defense".
1. What kind of defense is "self-defense"?
Queensland Penal Code 1899 (Criminal Code Act 1899) allows individuals to use reasonable force to protect their personal or property security. Reasonable force (Reasonable Force) refers to the use of appropriate, not excessive force for the protection of one`s own person or property, the actions taken by defenders must be reasonable in the circumstances, and the act of defence is proportional to the threat faced.
2. The conditions that constitute "legitimate defence" need to be met:
To constitute self-defense, the following elements must be met:
A) for the benefit of oneself or others;
(B) to prevent or prevent any unlawful restriction of personal liberty, including the freedom of one`s own or another person;
(C) to protect property from unlawful appropriation, theft, destruction, etc.;
D) in order to prevent criminal intrusion into one`s own land, or to expel others from entering one`s own land.
3, scenario 1: what should I do when I encounter burglary but no life-safety threat?
In the event of burglary but not life-safety threat, section 264 of the Queensland Penal Code states that, without causing serious physical harm to the intruder, the use of reasonably necessary force to resist the theft of property by the intruder, Or it is legal to take back property from the intruder.
Article 267 of the Queensland Penal Code further states that the use of force to prevent or expel an illegal entry into or stay in a residence is lawful, However, the person using force must have substantial grounds to believe that another (a) person attempted to enter or remain in the house with the intention of committing a actionable offence in the house, and that (b) had to use force in the circumstances at that time.
4, scenario 2: what am I supposed to do when I`m hit by an attack but I don`t have a life-safe threat?
Article 271 (1) of the Queensland Penal Code 1899 provides that the use of force in justifiable defence is also reasonable and necessary if you are under attack but threat is not safe for your life. And the use of force must not have the intention or possibility of causing the other party to be seriously injured or to cause the other party to death. (Force used not intended and not likely to cause death or grievous bodily
Harm), even if the end result is a serious injury to the other party or death. Whether the force you used on court is reasonable or necessary does not depend on what you were thinking at the time, (It is not.
Dependent on the accused`s state of mind), court will consider the objective circumstances at the time to determine whether your behavior is reasonable and necessary.
Section 271 (2) of Queensland Criminal Code 1899 further states that when you are attacked, and the attack causes you to think that (a reasonable apprehension) you will suffer serious harm or death, For reasonable reasons you can use the appropriate force to avoid this threat, even if the use of force ultimately led to the attacker`s death. On court, whether the attacker`s behavior will make you think that the safety of your life is also determined by the objective circumstances of the time, does not depend on your subjective expression.
5, case 3: if the "Kunshan Dragon Brother" incident took place in Australia, what would be the judgment of "self-defense"?
The case has drawn keen attention from netizens and has led to extensive discussion of the justifiable defense. Because self-defense is not only relationship to the conviction of the person involved, but also to whether each of us has confidence, courage, or courage in our daily lives to fight against acts that endanger our personal and property security.
First of all, we need to consider the necessity of defensive action. Longge`s machete has done harm to the defender`s personal safety, and he left the machete behind and snatched the knife to show that the violation continued and did not stop. Therefore, we have reason to believe that it is necessary to protect our own security after taking the sword, or the dragon will continue to carry out its violations.
In addition, we need to consider the reasonableness of its behavior. The defender had been stabbed, and the other side had an accomplice, a car, and possibly other murder weapons, and it was almost impossible to leave the body in such a situation to protect its own safety. It is difficult for a normal person to judge whether his safety will still be subject to threat or not in such a short period of time, so we think the behavior of the defender is reasonable. In combination, even in Queensland, defensors` actions are likely to be deemed self-defense and exempt from criminal responsibility.
Of course, life such as "Kunshan dragon brother" such as the case is not common. But when you are studying or working in Australia, if you encounter other acts such as campus violence, family violence and threat to personal and property safety, please call the police immediately and take reasonable self-defense. At the same time ensure that the relevant evidence is preserved in order to prepare for possible future litigation.
6. Situation 4: can I help others to defend themselves in the face of the victimization of others?
Legal. Section 273 of the Queensland Penal Code allows anyone to use force in good faith to assist others against attack, provided that the circumstances comply with the "justifiable defence" requirement.
Situation 5: can I control or arrest a burglar in the face of an intruder?
Section 546 of the Queensland Penal Code provides that in Queensland, when you confirm for objective reasons that the other party is committing a crime or has completed the crime, you may arrest the other party, but you need to hand it over to the police immediately. You can`t beat each other up, etc.
"Citizen Arrest" refers to the act of forcing an illegal person caught on the spot to the judiciary. Anyone has the right to "citizen arrest". ·the persons of arrest are in the process of committing or have just committed a criminal offence. * the above-mentioned crimes committed by arrest personnel shall be seen with their own eyes, And not just on suspicion that those who have been arrest have committed serious crimes that require prosecution to go untried and that they have not been tried with impunity.
Case 6: is it necessary for the court to determine whether defence is "justified" or "excessive"? Who will give evidence in the judgment process?
If you are a defender, do harm to the intruder and become the defendant. Then you have the burden of proof, you need to present evidence of self-defense, and the litigants need to refute the defender`s evidence on the basis of reasonable doubt. Once the evidence cannot be refuted, the self-defense is established and the defender is not guilty.
(R v McKay (1957) in VR 1957, a farmer shot and killed a chicken thief who broke into his farm. In his judgment, judge concluded that he had carried out excessive self-defence because it was the result of death`s failure to protect property or illegally invaded land, and was not protected by law.
9. How to grasp the degree of "self-defense"? It is important to note the following:
Call the emergency call 000 as soon as possible to call the police;
In the circumstances at that time, the personal and property safety of oneself or others was indeed subject to threat;
Whether the safety of life is determined by the threat is determined by the objective environment, depending on the objectivity, not only on your subjective thoughts;
According to the objective situation and environment, defense behavior needs to be proportional to the threat faced;
If the other party ceases to infringe or loses the ability to infringe, no further defense can be carried out.
