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Self defense – when does the attacker become the victim

Self-Defense - When Does The Attacker Become The Victim

A man who was at home with his girlfriend answered the door to be confronted by a woman with whom he had a casual affair demanding to know if he had chosen his girlfriend over her.  When he told her that he had, she kicked in the security screen door and the resulting argument ended up with him being charged with an aggravated assault.

self defense and the victim

Protecting Yourself

This case raises the question of just how far you can go to protect yourself and your property.

The man claimed that he had known the woman for 20 years and had a casual affair with her over a 12-month period which ended two years earlier due to her drug use.  The woman had previously assaulted his girlfriend in a pokies room just a few weeks prior.

He said that earlier his girlfriend had received a call from the woman saying that she would be at the house ‘in a minute’ and when there was a knock at the door he told his girlfriend to stay in the bedroom.  After being told that he had chosen his girlfriend over her, the woman demanded to be let in and he told her to ‘just go’.  He said she then started kicking the door and saying that she was going to ‘smash’ his girlfriend.  His evidence was that the door began to buckle in and the door handle snapped.  The door opened and she started towards him so he grabbed her arm and throat and pushed her back to a fence which was about 3.5 metres away.  When doing this he said he probably squeezed her neck a bit.

Discrepancies In The Claims

The woman gave a different account, claiming that the man charged at her and grabbed her throat with both hands.  She fought back and managed to get free and run to her car but said that the man tried to punch her while she was sitting in the car and lunged at her through the window and put his hands around her throat.  She claimed he took hold of a piece of broken plastic and threatened her with it.

After hearing the evidence of both witnesses the Magistrate did not accept the woman’s account of what occurred when she was in the car, saying that she was a poor witness who had come to court simply to vent her anger and frustration at being dumped.  The Magistrate concluded that there was absolutely no reason for her to be at the house other than to confront and insult the man and his girlfriend.  It was said that the woman’s evidence ‘oozed venom, vitriol and vengeance’.  On the other hand, the Magistrate accepted the man’s evidence that the woman had kicked in the security screen door and would not go away as requested.

So was the man acting in self-defence?

As far as it applies in this situation, the law (section 15 of the Criminal Law Consolidation Act) says that it is a defence to a charge if a person genuinely believes that the conduct involved was necessary and reasonable for a defensive purpose (in other words for self-defence or to defend another person) and it was reasonably proportionate to the threat that the person genuinely believed to exist.  Once a person raises the issue of self-defence, it is taken to have been established unless the prosecution disprove the defence beyond reasonable doubt.  In this case, the man claimed that he held a genuine belief that his conduct was necessary and reasonable to defend himself and the evidence did not prove otherwise.  So the question that then had to be answered was whether the action that he took was reasonably proportionate to the threat that he genuinely believed he faced.

After saying that the man had a right to protect his property and get the woman off of the property, the Magistrate decided that in defending himself, his property and his girlfriend the man went too far and was still guilty of assault.  So despite the fact that the Magistrate rejected the woman’s version of events and accepted what the man said occurred, he was still convicted of the assault.


Not surprisingly, the man appealed to the Supreme Court of South Australia.

Upon reviewing the evidence the Supreme Court concluded that the man should not have been convicted of the assault.  The judge noted that the woman ‘was not a small woman, that she was a very strong woman, who had previously attacked both him and his then girlfriend.’  The fact that the man had said in his evidence that he ‘was not gentle at all’ and that he, ‘probably squeezed her neck a bit’ as he pushed her away from the door did not amount to a concession that he had used excessive force.  Prosecution had not proved that the force used was excessive and so the result was that he was acquitted of the charge, or in other words the conviction was set aside.

Interestingly, the reasoning of both the Magistrate and the Supreme Court was concerned with the question of whether the force used by the man in preventing the woman from forcefully entering his home and assaulting his girlfriend was excessive.  In cases of home invasion the law (section 15C of the Criminal Law Consolidation Act 1935) says that if the person defending their property genuinely believed that the other person was committing or had just committed a home invasion then their actions do not have to be objectively reasonably proportionate but it is sufficient that they considered them to be necessary and reasonable.

A home invasion occurs when a person commits a serious criminal trespass in residential premises.  That means that they enter or remain as a trespasser with the intention of committing certain specific offences which include assault.  If the woman’s conduct amounted to a home invasion this section would apply and there would be no reason to consider whether the man’s actions were objectively reasonable.

Acquitted Of Charge

Although in the end the man was acquitted of the charge this case demonstrates the issues that can arise when the question of self-defence is raised.  A person can find themselves charged with a criminal offence through no fault of their own, and it is important to get good legal advice from an experienced criminal lawyer as early as possible.  Websters Lawyers have specialist criminal lawyers in Adelaide offering a free initial consultation.  To arrange an obligation free appointment contact us on 8231 1363 or submit an enquiry on-line.
Davis v Police ([2018] SASC 196





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