Recently there has been a number of incidents of teenagers viciously attacking Chinese people in various districts of Sydney, NSW. It is often a dilemma whether and how to fight back in a sudden conflict. Some people worry that it is illegal to fight back, while others think that it is okay for me to fight back if someone else does it first. Under the new state’s legal system, when is it legal to fight back in “self-defense”? Under what circumstances would it be considered “excessive use of force” or even “assault”?
In New South Wales (NSW), section 418 of the Crimes Act 1900 makes it clear that if a person believes that he or she or another person is facing unlawful harm and acts reasonably in order to protect himself or herself, then this may be considered “self-defense”. In other words, as long as the action was “necessary” and “reasonable,” the court may recognize your self-defense. In determining whether self-defense is justified, the court will usually consider a number of factors, such as whether there was an immediate threat at the time of the incident, whether the act was motivated by self-defense, whether the person concerned objectively had other choices (including the possibility of fleeing, and not initiating self-defense, etc.), whether the act was more than necessary, and whether the person’s reaction was reasonable under the circumstances. There is no set pattern to these considerations, and they need to be judged in the context of the specific circumstances of the case.
To constitute self-defense, the following basic elements generally need to be met:
- There is a real and immediate threat (not assumption, speculation or retaliation after the incident);
- The behavior is in defense of self or others, not out of revenge or anger;
- The means of defense employed is commensurate with the degree of danger faced;
- It was not significantly more than necessary
⚠️ self-defense is not a valid defense if the conflict resulted in a fatality
Many people mistakenly think that as long as “the other side first”, their “fight back” is certainly legal, in fact, this is not the case. The key to self-defense is “defense”, not “retaliation” or “lessons”. For example, if the other person stops attacking or turns to run away, and you continue to pursue him or her, you may be found guilty of assault or even criminal assault. Similarly, if the other person only verbally provokes you and you strike, the court will not support such behavior. Thus, defense is predicated on the existence of a realistic and necessary act to protect oneself, not a reason to take the opportunity to strike. The standard ultimately remains whether you were in reasonable danger in the moment and acted proportionately.
Emotions often run faster than reason in the event of an attack. In a panic, people are prone to react instinctively out of anger, humiliation or fear, such as the urge to fight back, to “get out of the way”. But the reality is often more complex than we think – a moment to fight back, sometimes not only can not solve the problem, but will make the situation more out of control. The evolution of many conflicts is due to the “momentary lapse in judgment” and lost the balance. That’s why we always recommend: in emergencies, the primary goal is not to “win”, but to “get out safely”.
– Call the police at the first opportunity
Call the police on 000 or go to your local police station. The earlier the police are involved, the more effective they will be in preserving key evidence.
– Assisting the police in the proper preservation of evidence
Materials that may be requested by the police include:
- Photos of physical injuries
- Surveillance video, car recorder footage, or photos of the scene
- Witness information
- Medical records, etc.
– Prioritize personal safety
It is not recommended to continue to tangle with the other person when you can get out of danger. Protecting yourself comes first.
– Apply for a protection order if necessary
If there is persistent sexual harassment or threatening behavior, you may seek the advice of an attorney or the police for legal protection.
In the event of aggression, the first response is, of course, to ensure safety. If you have the opportunity to escape, you should give priority to fleeing; if you are forced to fight back, you should try to maintain the “necessity” and “reasonableness” of your defensive behavior. After the incident, you should call the police, go to the hospital as soon as possible under the arrangement of the police and record your injuries, and keep the evidence at the scene (e.g., photos, videos, eyewitnesses’ information, etc.), which may play a key role in the subsequent investigation. Regardless of the party involved, contacting a professional criminal lawyer as early as possible throughout the process and leaving the coping strategies in the hands of the lawyer is a wise choice to protect one’s rights and interests.
Justifiable defense as a legal defense does hold up in the New South Wales criminal law system. However, it is important to note that claiming self-defense does not mean that the case will be exonerated or not pursued at an early stage. The factual background of the case, the level of evidentiary support, and whether the conduct was “reasonably necessary” are all key factors that must be assessed and argued in court on a case-by-case basis.
It is therefore advisable to contact a professional criminal lawyer as soon as possible after the incident. A solicitor can assist you in clarifying the facts of the incident, preparing a formal statement, organizing evidence, negotiating with the police and providing a clear and sound strategy for the subsequent development of the case. The guidance of a legal professional will help you to express your position accurately and avoid the risk of unclear presentation of facts or inappropriate responses that may affect the judgment of the case.
Why choose Sunfield Chambers Solicitors & Associates？
When faced with a criminal legal matter, it is critical to choose an attorney who understands your background, communicates without barriers, and genuinely cares about your rights. As a full-service law firm, criminal defense is one of our primary areas of service. Whether you are caught in an unexpected situation in unfamiliar surroundings or are fighting for your family’s legal rights, we can provide you with sound, professional support. We believe that the law is not only about rules, but also about being understood and protected. Here, you are not alone in a complex situation, but with a team of trusted professionals.
Written by Xueying Yang; Content planning: Sun Gang; Xueying Yang; Proofreading: Sun Gang
The content of this article is based on publicly available information and the author’s understanding, and does not constitute any form of professional legal advice or basis for business decisions. Readers should refer to this article in the context of their own actual situation and consult relevant professionals for specific guidance. The author and the publishing platform do not assume legal responsibility for any consequences arising from the use of the information in this article.
Consultation with Specialized Lawyers
Abraham Sun
Principal Solicitor
As the Principal Solicitor, Abraham has been working with numerous clients including listed companies, state-owned enterprises, ultra-high-net-worth clients, and investment banks. Customers in various industries including Australian and Chinese companies and individual investors, had achieved considerable economic benefits with his professional legal advice.
Dickson Luo
Solicitor
Dickson mainly conducts dispute resolutions and commercial litigation in areas across insolvency, corporations, employment, real property and consumer law. He is proficient in English and Chinese Mandarin, and have extensive experience acting for clients who have limited or no English skills in complex disputes and litigation matters.
Ming Zhao
Partner, Solicitor
Ming is proficient in immigration law and has over 20 years of experience in this area of law. He specialises in business skills migration, employer nomination scheme, employer nomination migration in regional areas, etc. Also, Ming is highly experienced in all areas of criminal defence, including matters involving drink driving, drive while disqualified/suspended, etc.
David Ho
Solicitor
David’s main practice areas are criminal defence and immigration law. He assists client in defending criminal proceedings and assist with visa and/or citizenship applications. David is always dedicated irrespective of the complexity of the matters, and he is always diligent and practical.
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