Assault and Self Defence – The Loose Cannon

I often come across situations where a farmer gets charged with assault after challenging someone on their land. Typically, the farmer has heard the sound of distressed stock and perhaps dogs barking, and has armed himself before going out to investigate fearing wild dogs are attacking his stock.

He approaches the scene and the trespasser either exaggerates the altercation or lies about it and charges result.

Similar situations often arise following exchanges between duck hunters and protesters. The latter, who are often extremely anti-gun, and often react hysterically merely at the sight of a firearm, let alone a dead duck.

Consequently, when approaching someone, it is important to have all firearms out of sight.

I know on the one hand having a rifle in your hand when approaching a poacherwho looks like a feral version of Rambo is reassuring, particularly if you are alone, and in a remote spot, but the flip side of reassurance is intimidation.

If you are feeling reassured- the person you have approached is probably feeling intimidated, and that for you is a big problem, because the offence of Assault involves any act committed intentionally, or possibly recklessly, that causes another person to apprehend immediate and possible violence.

Historically, if violence was involved, the offence became one of battery, the distinction between assault and battery has blurred, and now for example s61 of the Crimes Act (NSW) refers to an Assault that does not inflict actual bodily harm having a penalty of two years.

There are various types of assault, and there are variations on the theme such as discharging a firearm with intent to commit grievous bodily harm. There is no need to look at the varieties of assault here.

Often when a person is charged, they claim that they were only defending themselves, and this raises the defence of self-defence.

The treatment of the Law of Self-defence by society today is ground for much confusion.

In NSW in a strictly legal sense is not a defence at all, rather it is a reversal of onus, so that the Police have to prove beyond reasonable doubt that the person did not carry out the conduct in self-defence, and the second confusing thing for the lay person is that, each of these matters turns very much upon their own particular circumstances.

The law in most states requires a person believed on reasonable grounds that it was necessary for them to do what they did.

In NSW, there are two tests, did the defendant subjectively believe the conduct was necessary in order to achieve one or more of the following:

  • Defend himself, herself or another person
  • Prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person
  • To protect property from unlawful taking, destruction, damage or interference
  • Or to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

If this test is met, one moves on to ask whether the conduct was a reasonable response to circumstances as he or she perceived them. Here the fact finder needs to consider what the reasonable person would do in the subjective circumstances perceived by the defendant.

In order to be able to avail yourself of the defence, you need to be fearing for your safety, or that of someone else, acting because your angry or because you have had, or fear having your property stolen will not work.

If excessive force is considered to have been used. A person may not be found guilty of murder, but could be found guilty of manslaughter, a lesser offence.

Secondly, if you were only seeking to prevent criminal trespass or protect property, one would not be able to rely on self-defence if you killed the fellow, but you would if you were charged with the lesser charge of assault.

The Law provides that a person is not criminally responsible for an offence if the person carried out the conduct in self-defence.

As society has become increasingly ‘civilised’ and here I use in the way that President Theodore Roosevelt used to use it, as a euphemism for ‘feminised’, the establishment view has been to seek to prohibit items that may be used for self-defence, such a pepper spray, personal Taser’s, clubs, even the carrying of a pocket knife has been banned.

Protection of the person has also been removed as a reason for firearms ownership, and

Police have also sought to generate a myth that they alone are there to protect us, when all they ever do- unless it is one of those occasions where their intelligence is really good and they know where and when something is going to happen, is arrive after the event and document things, and hope that they can find the perpetrator.

When they do not, the system fails miserably until shots get fired at Police.

If this version of events sounds too cynical, witness the capture of the father and son Fugitives, Gino & Mark Stocco, who committed murder and mayhem, during an eight-year crime spree in rural Australia across a number of different states. This was not the victory for Policing that the NSW Police Commissioner depicted.

Rather, their capture largely was the result of forensic activities by their victims, and not Police, and Police only really got serious in dealing with the pair after they used force against Police to evade capture.

Sadly, exit the Capital cities, and the thin blue line has more holes in it than a fishing net, and in saying this please do not take this the wrong way, I am not criticising officers who daily put their life on the line to protect the community, most do a truly excellent job.

While personal protection is not ground for ownership of a firearm and the one exemption to being armed for protection is if you are protecting money. A security guard protecting the fortune of a business or rich individual can lawfully carry a firearm to prevent the theft of money, but if after doing so, he then needs to head off to the airport to collect a famous rock musician or actor who he is to protect, he must go back to the office first and deposit the pistol in the safe because firearms for the defence of person are not legal.

Were the public ever consulted about whether it viewed a bank’s corporate millions as more important than the life of a voter? No of course not, and one hopes that the new world order as marked by the turning of the electoral worm- witness BREEXIT, TRUMP, and stronger voter support for such parties as the Shooters Fishers & Farmers Party, may achieve some equity in this regard.

Fortunately, in the matters in which I have been instructed, I have observed that where self-defence was genuinely raised, juries are good at weighing up a witness’s demeanour, and, like the electorate from which they are comprised, show far more common sense than the politically correct prosecution, and waste little time acquitting.

What should you do if your family found itself in a situation of facing a violent threat? I am not going to say never contemplate use of a firearm, such advice would be trite, politically correct claptrap. People do what they have to do to protect themselves. You need to understand that this moves beyond the terms of your licence to possess a firearm, and into a legal mine field that could see you charged with criminal offences.

Indoors, I would remove my family and myself to a position of safety and call Police. Only if a perpetrator persisted, after withdrawing from the assault as far as you could should you contemplate using an armed response and only then to an extent necessary to minimise further injury to yourself and the perpetrator. Note the perpetrator also has rights, as you will find out if you are subsequently judged to have used an unreasonable amount of force. Then hole up and wait for the cavalry….

You should never consider pursuing the person with a firearm and shooting a firearm at him if he is retreating, or going out with the firearm to look for the individual.

However, having said this the individual who defended themselves under the very circumstances raised here may still find themselves charged, and have to go through an expensive and stressful legal process that often strains and destroys marriages, and even when acquitted, they may have a battle getting their firearms licence returned, however, as the American bumper sticker reads, at the end of the day, it is better to be tried by twelve than carried by six.

One other word. If there is a firearm present and Police arrive. Ensure the firearm has been visibly made safe, has been put down and your hands are very clearly in the air. You do not want what to be considered a threat to Police when they arrive.

Simon Munslow
National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice.
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advices & opinions related to Firearms law matters




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