A few days ago, a news story in China went viral:

In Xianyang, Shaanxi, a husband was assaulting his wife at her workplace. The wife’s colleague stepped in to stop him. During the struggle, the husband bit the colleague’s face, and the colleague then struck the husband with a thermos flask. Company security and other staff also pinned the husband to the ground and called the police. The husband was subsequently taken to hospital for treatment. By the time officers arrived, he had already died. The Xianyang Municipal Court found that the colleague who intervened to stop the domestic violence had not committed a criminal offence — her conduct amounted to lawful self-defence — and decided not to prosecute.

When faced with injustice, many people with a strong sense of justice choose to “step in when the moment calls for it”. However, Australian and Chinese law differ. Whether you should step in, when, and whether you may incur legal liability for doing so, all need to be clearly understood.

How is “self-defence” defined?

Australian criminal law expressly provides that lawful self-defence can exempt a person from criminal liability. To constitute self-defence, the following elements must be met:

1. It is carried out to protect the interests of oneself or another person;

2. To prevent or stop any unlawful restriction of personal liberty, including restrictions on one’s own or another person’s liberty;

3. To protect property against unlawful taking, theft, damage, etc.;

4. To prevent criminal trespass onto one’s own land, or to remove another person who has unlawfully entered one’s land.

For example, when living overseas it is unavoidable to sometimes encounter racial discrimination. In the face of malicious verbal or gestural abuse from a racist, you should first stay calm, loudly tell the person that their conduct is unlawful, and warn them that if they do not stop immediately you will call the police. It is also a good idea to have your phone ready to call the police, and if possible use your phone to take photos, audio recordings or video as evidence, or ask nearby passers-by to act as witnesses, and then report the incident to the police afterwards.

What if the other person physically attacks you? Generally, when facing racial discrimination you should try to avoid direct physical confrontation. In particular, you must never throw the first punch — if you hit first, you may well be committing an offence of violence. However, if you are unable to call the police, or the police have not yet arrived and the racist continues to attack you with force, lawful self-defence in that situation is entirely permissible. Self-defence includes not only defending yourself but also defending another person from an attacker. For instance, if a friend is being physically attacked by a racist, it is also lawful to strike the racist in order to protect your friend. Make good use of your surroundings and everyday objects for self-defence — your clothes, shoes, belt, a pen on you, or stones and dirt nearby — to give yourself a chance to escape.

What counts as “excessive self-defence”?

During self-defence, if you fail to get the “degree” right, it can easily cross over into excessive self-defence and become an unlawful act. As mentioned above, when dealing with a racist, if the racist only gave someone a shove or was about to leave, and the person shoved then used a wooden stick to beat them and cause serious injury, it would be very difficult to rely on self-defence as a defence.

In 2019, a Sydney resident named Johan woke up one day to find a stranger, Soper, hiding behind the sofa in his living room. This person had unlawfully entered Johan’s home and had first gone for a swim in his pool. Once Johan had gathered his wits and realised the intruder might be a thief, the two got into a fight. During the struggle, Soper was grasped by the neck by Schwartz and soon lost consciousness and collapsed. Neighbours and paramedics who later arrived at the scene performed emergency first aid on Soper, but he could not be revived.

Johan was taken to the police station and questioned for several hours before being released, with the possibility of criminal proceedings not ruled out.

Whether “excessive self-defence” has occurred is determined mainly by:

1. Whether the circumstances genuinely required self-defence to protect oneself or another;

2. The factual circumstances at the time, which determine the kind of means used to bring the threat to an end;

3. Once the other party has stopped the offending conduct or has lost the ability to continue it, no further defensive action may be taken;

4. Where the purpose is to protect property from unlawful taking, theft or damage, or to remove an unknown person who has unlawfully entered one’s land, the defensive action must not result in death.

In other words, the core question in determining whether self-defence was excessive is whether force was abused, particularly after the other party had lost the ability to continue the attack.

In the well-known case of R v McKay (1957) VR 560, a farmer shot and killed a chicken thief who had unlawfully entered his farm. The judge held that he had used excessive self-defence, because causing death solely to protect property or to deal with an unlawful trespass onto land is not protected by law. Section 420 of the Australian criminal legislation also reflects this view.

How do you get the “degree” of self-defence right? Be sure to keep the following in mind:

1. In an emergency, do everything possible to call the emergency number 000 as quickly as possible;

2. In the circumstances at the time, the personal safety or property of yourself or another person must genuinely have been under threat;

3. Whether life is under threat is determined by the objective circumstances, not merely by a subjective belief;

4. Based on the objective situation and circumstances, the defensive response must be proportionate to the threat faced;

5. Once the other party stops the offending conduct or loses the ability to continue it, no further defensive action may be taken.

Finally

When you encounter a dangerous situation, our recommendation is to call the police as soon as possible. Vulnerable individuals may wish to carry items such as pepper spray or a personal alarm, and should try as much as possible to avoid physical confrontation. If a physical confrontation really cannot be avoided, you must carefully consider the necessity and reasonableness of self-defence, and at the same time make sure that relevant evidence is preserved for any future legal proceedings that may arise.