See Part 1 here;

See Part 2 here;

See Part 4 here.

Perhaps not strictly part 3 but this question arose as a result of that discussion.  In Parts 1 and 2 I discussed how a person was acquitted of assault as he acted in self-defence when he used force to resist treatment that he did not want.  As a result of that discussion I’ve been asked by a Tasmanian Paramedic for guidance on the law of self-defence.  I’m told that a patient had engaged in abusing another paramedic and had hit her.  My correspondent’s:

… first reaction was to get between the patient and my volunteer, simply as a physical barrier if anything, to protect her.  However, upon doing so, I came to a complete standstill and essentially waited for him to do something / make the first move.  Whilst I didn’t have to wait long for him to make that move, I guess I now wonder whether in fact I needed to wait at all for him to show aggression directly towards me.

Whether correct or not, I had it in my mind that he needed to show aggression directly towards me before I could retaliate in self defense and restrain him to the ground.

The alternative scenario playing out in my mind (retrospectively) is that rather than coming to a standstill as I did, instead I use my momentum and ‘rugby tackle’ the patient into the cupboards in the corner of the room.  This would have possibly resulted in the patient sustaining some injury, but it would have been less likely that I would have an injury.  Essentially, was it sufficient that he had already assaulted my volunteer?

I’ve been given some more details but I’m also told the matter is still before the court – I therefore won’t make any comment on the specific facts but just a general discussion on ‘self-defence’.

Tasmania has a criminal code set out as Schedule 1 to the Criminal Code Act 1924 (Tas).  Clause 46 says ‘A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.’

The application of that law to the question posed by my correspondent appears to have been answered by the Tasmanian Court of Criminal Appeal in Wright v Tasmania [2005] TASSC 113. There Justice Blow (with whom Justices Evans and Tennett agreed) said (at [14]-[17] emphasis added):

The law as to self-defence in this State is governed by the Criminal Code, s46, which provides as follows:

“A person is justified in using, in the defence of himself … such force as, in the circumstances as he believes them to be, it is reasonable to use.”

When self-defence is an issue, the Crown of course bears the onus of proving beyond reasonable doubt that the act in question was not done by way of lawful self-defence.

In determining whether the amount of force used in self-defence was reasonable or excessive, a jury must take into account the fact that a person defending himself or herself may be in a stressful situation with little or no time to think. In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the members of the Privy Council, said:

“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

That passage was cited with approval by Mason CJ in Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 at 650, and in Connaire v Austin 33/1988 by Green CJ at 2 and Neasey J at 6.

A person who believes he or she is about to be attacked does not necessarily have to wait for the assailant to strike the first blow or fire the first shot. Circumstances may justify the use of pre-emptive force in self-defence. See Beckford v R [1987] UKPC 1; [1988] AC 130; R v Lawrie [1986] 2 Qd R 502 at 505.

In Shane Rudman v R [1997] TASSC 16, Chief Justice Cox along with Justices Underwood and Slicer, sitting as the Court of Criminal Appeal, had to review the directions a trial judge had given to a jury.   Chief Justice Cox (with whom Justice Underwood agreed) said (at [21]-[23]):

… the learned trial judge … told the jury that a person who genuinely believes he is threatened with an attack is not obliged to wait until the attack has commenced and that he may take reasonable measures to make the situation safe. In the passage complained of, he said:

“… for the purpose of determining whether the accused’s actions in  self defence  were no more than were reasonably necessary you might need to consider the possibility that he could have done something else to avoid the attack if he felt himself threatened with an attack. Could he have done something less violent to deflect the attack? Could he have retreated? Could he have sidestepped? Could he have taken any form of evasive action to avoid the attack rather than using force to provide himself with a defence?

Now again, I stress that his failure to have recourse to any one of those alternatives is plainly not decisive but they are matters that obviously would have to be considered. What could he have done other than what he did?”

In Palmer v R [1970] UKPC 2; [1971] AC 814 at 832, Lord Morris, delivering the judgment of the Privy Council, said:

“If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

Likewise, as Richards J said in Saler v Klingbiel [1945] SASR 171 at 172, a case not of self-defence but of the defence of another to which the same considerations apply:

“It must of course be conceded that it is not the function of a protecting intervener to go further than protection and administer punishment; but one must not weigh conduct on such an occasion with ‘golden scales’ …”.

The Court of Appeal held that the trial judge had correctly explained the relevant law.

Self-defence however requires only that action to neutralise the threat.  ‘Retaliation’ or ‘retaliating in anger’ (Bonde v Morrison [2015] TASMC [22]) take the action outside self-defence.

Discussion

It is not necessary that a person ‘show aggression directly towards’ another before that person takes action in self-defence, provided that action is intended to neutralise the threat and not to add a degree of retaliation.    If a person honestly believes, and has some grounds to believe (Zecevic v DPP [1987] HCA 26) that they, or a third party, are going to be attacked they may act to defend themselves.

A person could use their ‘momentum and ‘rugby tackle’ the patient into the cupboards in the corner of the room’ even if this ‘would have possibly resulted in the patient sustaining some injury, but it would have been less likely that [the person acting] would have an injury’ provided that the person honestly believed that such conduct was required in order to protect themselves or another person.

The problem with the question I have is the final question which is ‘Essentially, was it sufficient that he had already assaulted my volunteer?’  The answer to that is ‘no’.  You can’t use reasonable force in self-defence once an attack has occurred as you are not trying to stop the attack. You can only use that force if you believe another attack is likely.  The fact that this person had assaulted another ambulance officer would be a fact, a very relevant fact, to support the genuine belief that he was about to launch another attack – but that is the essential belief.  Hitting someone because they have already attacked someone else is just force – hitting them because you think they are going to attack that person again, or attack you, is self-defence.

The fact that ‘he had already assaulted my volunteer’ gives rise to an alternative justification for the use of force, and that is force to effect an arrest.  ‘It is the duty of every person to arrest without warrant any person whom he finds committing any of the crimes in Appendix A’ (Criminal Code (Tas) s 27(4)).   One of the offences listed in Appendix A is ‘assault’.  Further ‘It is lawful for any person to arrest without warrant any person whom he sees committing a breach of the peace or whom he believes on reasonable grounds to be about to commit or renew a breach of the peace’ (s 27(6)).  Further ‘It is lawful for any person who is justified … in making an arrest, to use such force as may be reasonably necessary to overcome any force used in resisting such … arrest’ (s 26).   If a person has just struck another that is both an assault and a breach of the peace and a person would be justified in using reasonable force to arrest them pending arrival of the police.