Marital Artist, Security Officer & General Public – It’s all about Reasonableness and Appropriateness
By Paul Mracek, Black Belt 9th Dan, International Defensive Tactics Coach/Instructor
Introduction
It is most likely and also fortunate that most of us will be able to go about our daily lives without having to be worried about being the victim of a mugging, road rage, a fight or other type of attack; or have our work, homes or cars broken into. However, most of us would know of someone, either family, friend or associate that has unfortunately had to face a situation where they have been abused, threatened, attacked or been burgled by someone to inflict harm personally or on their property.
Our expectation is that the law recognises that in such situations, self-protection of either ourselves or our property is not only possible but allowed, and which the general public would consider to be justified under what we generally classify as self-defence.
Current Perception
The perception of the average person is that violence is on the increase because of the ever-increasing media coverage of violence from either locally or around the world to improve media ratings. This has also been reflected in the response from law makers with changes and introduction of new measures, such as one-punch attacks, mandatory sentencing legislation, etc. This has resulted in many people coming increasingly concerned about the safety of their families, as well as organisations concerned about the vulnerability of their businesses.
Business, family and personal safety services is a as a result a fast-growing market segment. There is an ever-increasing number of programs teaching self-defence to the general public, as well as to other martial artists; and defensive tactics to security officers who are looking to keep safe while on the job. Talking to these groups it is clear that there is still a lot of misunderstanding about what constitutes self-defence when a heated situation happens.
In this 3-part paper we will look at what is the view of these three groups, i.e. average person, martial artist and a security guard when it comes to self-defence or defensive tactics. Let’s start by looking at what is self-defence.
Self-defence in the law
It would be helpful if all the states and federal laws where the same, which I am sure you have worked out is not the case. It is natural that a person who is attacked should and allowed to resist and such actions are lawful so long as it meets certain criteria. As most of us would be thinking, this is not only about ourselves, it is also about those who mean most to us and then this right of defence should include the defence or safety of them (another person).
In simple terms the general rule regarding self-defence is that a person is allowed to take any defensive or evasive steps that they believe to be necessary. If force is used in taking the defensive action, then that force must be appropriate and proportionate to the danger.
The law in relation to self-defence, is viewed from the normal expectations of the average person.
Clearly, both the law and common sense, have the understanding that a person who is attacked may defend themselves, but only to the extent of doing what is reasonably necessary in a specific attack and the circumstances of the attack.
In teaching self-defence, the message to students is the best form of defence is to avoid the danger or threat, this of course is on the assumption that they have time. This is often not the case, and a person may be in immediate danger and have to take some spontaneous defensive action. When the danger no longer exists, the issues of appropriate and proportional actions would not be met or justified in using force as a way of revenge against the attacker, as this would be viewed as violence and be seen as an assault.
The main things to consider in all cases of self-defence are: (a) Type of the attack. (b) Response to the attack is proportionate.
Looking at each of the points; firstly a) being the type of the attack, what is the perception of the victim of the danger believed to be faced; and b) perception of the level of personal danger and how proportional is the response to that danger. What this means is that, the force used by a person in using self-defence must be reasonable and proportional to the danger which they reasonably believed they faced.
IN USING SELF DEFENCE IN ANY CONFRONTATION SITUATION, YOU MUST MAKE SURE THAT YOU DO NOT BECOME THE AGGRESSOR. THE LAW IS CLEAR THAT ANY BELIEFS AND DEFENSIVE ACTIONS MUST BE REASONABLE.
The legal test for self defence
The legal principle for self-defence comes from the Australian High Court decision set down in Zecevic v DPP (1987) 162 CLR 645. In this judgement the following rule for self-defence was established:-
It is self-defence if the accused person believed on reasonable grounds that it was necessary in self-defence to do what he or she did.
Looking to self-defence in legislation, we can turn to s 10.4(2) of the Criminal Code 1994 (Cth) which states the following:
A person carries out conduct in self-defence if, and only if, he or she believes the conduct is necessary:
- to defend himself or herself or another person; or
- to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
- to protect property from unlawful appropriation, destruction, damage or interference; or
- to prevent criminal trespass to any land or premises; or
- to remove from any land or premises a person who is committing criminal trespass.
Unlike other areas of law, self-defence isn’t reliant on a specific step by step approach, but rather, is dependent on the facts of the specific situation, and in the end the question is ultimately left to the courts and a jury to decide.
Wouldn’t it be nice to think we didn’t need self-defence!
Self-defence and the average person
When it comes to the average person the question about reasonable force and when it is appropriate to use in self-defence situations is confusing at best; as most people don’t handle confrontation well whether it is physical or verbal.
The other side of the coin of self-defence is assault and having an understanding of what is defined as assault helps in giving a clearer picture as to appropriate and proportional force.
A simple definition of what may be viewed as assault is:
“The unlawful use of physical force against the person of another and includes an unlawful attempt or threat of a bodily act or gesture to use force against the person of another under such circumstances that the person making the attempt or threat actually has or appears to have the present ability and intention to carry out his/her purpose.”
This means that to constitute an assault a person must:-
- Use unlawful force against another person, or
- Attempt to use unlawful force against another person, or
- Threaten to use unlawful force against another person.
- Use unlawful force against another person, or
- Attempt to use unlawful force against another person, or
- Threaten to use unlawful force against another person.
In considering the above there are two additional points to be met and satisfied before the offence of assault can be committed. The first is the physical act (Actus Reus), and the second is the intention to commit the act (Mens Rea). The intention to commit the act can be either deciding to do something or doing something without fearing the consequences of an act or omission which amounts to the reckless indifference to human life or suffering. Therefore to satisfy the law the person must have the fear or apprehension that the offender has:-
(i) the intention to apply the force, and (ii) the present means or ability to carry out the act.
People are often confused about what to do and whether to respond to confrontational situations that occur while they are going about their general day to day activities; and whether the personal safety line has been crossed.
Here are some instances that would constitute an assault, based on actual cases to help with giving some clarification:
- An attempted forced kiss.
- A threat to kiss or strike a person.
- Wrongful detention, holding someone against his/her will, even though there has been no touching.
- In certain circumstances, a threat over the telephone.
- Presenting a firearm at a person within range.
- Presenting a replica or toy firearm, which appears to be real, at a person within range.
- Pushing a person in anger.
- Spitting at a person.
- Throwing a firecracker.
- Striking a horse and the rider is thrown off.
- Cutting or injuring the clothes a person is wearing.
The type of appropriate defensive response and proportionate level of force that could be used for each of these can be very different, and in the end is dependent on the actual and or perceived level of danger. As with all things in our daily lives we are all held accountable for our actions. If you choose to use force in any circumstances it is best to make sure it is lawful.
Author: Paul Mracek
Resource Box:
9th Degree Black Belt – IMACC, 8th Degree Black Belt – Taekwonjitsu 8th Degree Black Belt – Taekwondo OCFM Certified Coach; ADT/PPDT Certified Instructor Trainer & Master Coach – NLP & Kotan Method
Chartered Professional Engineer; Fellow: Australian Institute of Management Graduate: Australian Institute of Company Directors Master Coach & Practitioner: Time Line Therapy® & Hypnosis
Recent Comments