Self / Friend / Family Defence

[Happy Camper]

What are the limits on what you can do to someone if they are attacking you, your friends, or your family ? And what if they haven't attacked yet, but look like they might; if they were robbing your house for instance ?

[dwarfthrower]

Legally... and IANAL... I think all you can do is call the police and wait for them to come and rescue you. At any rate that's the way the government would like it.

Generally though, I think as long as you do as little as possible to achieve the desired result (ie protecting the innocent) you should be pretty safe. So if you can scare em off... then scare em off, if you have to incapacitate - then incapacitate. Killing them is usually frowned upon unless someone's life is under direct threat.

[Vardsy]

I have always thought that the rule is you can use as much force as is being used on you,

if a guy comes at you with a knife and you have a gun I don't think you can shoot them (unless you are the police and in that case it can be a mobile phone) but if he comes at you with the gun and you stab him in the face that is all good??

Who is the resident Zgeek legal advisor?

[Sagacious]

Section 271 to 278 Criminal Code Queensland deal with these issues where the situation arises in Queensland.

As follows:

271 Self-defence against unprovoked assault
(1) When a person is unlawfully assaulted, and has not provoked the
assault, it is lawful for the person to use such force to the assailant as is
reasonably necessary to make effectual defence against the assault, if the
force used is not intended, and is not such as is likely, to cause death or
grievous bodily harm.
(2) If the nature of the assault is such as to cause reasonable
apprehension of death or grievous bodily harm, and the person using force
by way of defence believes, on reasonable grounds, that the person cannot
otherwise preserve the person defended from death or grievous bodily
harm, it is lawful for the person to use any such force to the assailant as is
necessary for defence, even though such force may cause death or grievous
bodily harm.

272 Self-defence against provoked assault
(1) When a person has unlawfully assaulted another or has provoked an
assault from another, and that other assaults the person with such violence
as to cause reasonable apprehension of death or grievous bodily harm, and
to induce the person to believe, on reasonable grounds, that it is necessary
for the person’s preservation from death or grievous bodily harm to use
force in self-defence, the person is not criminally responsible for using any
such force as is reasonably necessary for such preservation, although such
force may cause death or grievous bodily harm.
(2) This protection does not extend to a case in which the person using
force which causes death or grievous bodily harm first begun the assault
with intent to kill or to do grievous bodily harm to some person; nor to a
case in which the person using force which causes death or grievous bodily
harm endeavoured to kill or to do grievous bodily harm to some person
before the necessity of so preserving himself or herself arose; nor, in either
case, unless, before such necessity arose, the person using such force
declined further conflict, and quitted it or retreated from it as far as was
practicable.

273 Aiding in self-defence
In any case in which it is lawful for any person to use force of any degree
for the purpose of defending himself or herself against an assault, it is
lawful for any other person acting in good faith in the first person’s aid to
use a like degree of force for the purpose of defending the first person.

274 Defence of moveable property against trespassers
It is lawful for any person who is in peaceable possession of any
moveable property, and for any person lawfully assisting him or her or
acting by his or her authority, to use such force as is reasonably necessary
in order to resist the taking of such property by a trespasser, or in order to
retake it from a trespasser, provided that the person does not do grievous
bodily harm to the trespasser.

275 Defence of moveable property with claim of right
When a person is in peaceable possession of any moveable property
under a claim of right, it is lawful for the person, and for any person
lawfully assisting him or her or acting by his or her authority, to use such
force as is reasonably necessary in order to defend the person’s possession
of the property, even against a person who is entitled by law to possession
of the property, provided that he or she does not do grievous bodily harm to
such other person.

276 Defence of moveable property without claim of right
When a person who is entitled by law to the possession of moveable
property attempts to take it from another person who is in possession of the
property, but who neither claims right to it, nor acts by the authority of a
person who claims right, and the person in possession resists him or her, it
is lawful for the person so entitled to possession to use the force that is
reasonably necessary in order to obtain possession of the property,
provided that he or she does not do grievous bodily harm to the person in
possession.

277 Defence of premises against trespassers—removal of disorderly
persons
(1) It is lawful for a person who is in peaceable possession of any land,
structure, vessel, or place, or who is entitled to the control or management
of any land, structure, vessel, or place, and for any person lawfully
assisting him or her or acting by his or her authority, to use such force as is
reasonably necessary in order to prevent any person from wrongfully
entering upon such land, structure, vessel, or place, or in order to remove
therefrom a person who wrongfully remains therein, provided that he or
she does not do grievous bodily harm to such person.
(2) It is lawful for a person who is in peaceable possession of any land,
structure, vessel, or place, or who is entitled to the control or management
of any land, structure, vessel, or place, and for any person acting by his or
her authority, to use the force that is reasonably necessary in order to
remove therefrom any person who conducts himself or herself in a
disorderly manner therein, provided that he or she does not do the person
grievous bodily harm.
(3) In this section—
“place” includes any part of an enclosure or structure, whether separated
from the rest of the enclosure or structure by a partition, fence, rope,
or any other means, or not.

278 Defence of possession of real property or vessel with claim of right
When a person is in peaceable possession of any land, structure, or
vessel, with a claim of right, it is lawful for the person, and for any person
lawfully assisting him or her or acting by his or her authority, to use such
force as is reasonably necessary in order to defend the person’s possession,
even against a person who is entitled by law to the possession of the
property, provided that he or she does not do grievous bodily harm to such
person.

[dwarfthrower]

Definition of "grievous bodily harm" would be handy here too.

[Sagacious]

GBH Defined

“grievous bodily harm” means—
(a) the loss of a distinct part or an organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would
endanger or be likely to endanger life, or cause or be likely to
cause permanent injury to health;
whether or not treatment is or could have been available.

GBH used to be an injury which seriously disfigured or maimed.

Maiming is injuring a man such that he is permanently unfit for battle.

[dwarfthrower]

Cool... so a couple of busted ribs and a few bumps on the noggin doesn't really rate then.

[Sagacious]

Cool... so a couple of busted ribs and a few bumps on the noggin doesn't really rate then.
that depends on how badly broken the ribs are and how bad the bump on the head is.

Think punctured lungs and closed brain injury and were looking at something fairly close to GBH

[dwarfthrower]

Hmmm... ok.

So when I'm beating up random junkies... erm I mean "should someone try to mug me"... what's the burden of proof on my end that the unconscious party was in fact engaged in some sort of nefarious act?

[Sagacious]

Hmmm... ok.

So when I'm beating up random junkies... erm I mean "should someone try to mug me"... what's the burden of proof on my end that the unconscious party was in fact engaged in some sort of nefarious act?

If you are defending yourself against an unprovoked attack the crowen must prove that you assaulted the complainant and they must prove that beyond reasonable doubt.

If you are relying on a defence then you must prove the elements of your defence on the balance of probabilities ie. on the evidence it is more likely than not that you were being assaulted yourself and that you took those steps and used such force as was reasonably necessary in the circumstances to preserve life and limb.

If you kill the fucker or casue him GBH then you have to apply two tests teh first test is a two limbed test:

First - did you apprehend (fear) that the assault on you would result in death or GBh to you or the person you were defending?

Second - If the answer is yes then what has to happen is that your apprehension or fear has to be reasonable assessed objectively (ie. would a reasonable person in your circumstances been afraid that he/she/the person being defended would suffer death or GBH by reason of the unprovoked assault on them).

If both tests are answered yes then the second limb comes into play:

Was the force used to resist the assault and defend against it reasonable in the circumstances? if the answer is yes then you have established the elements of your defence and can expect to be acquitted of murder or GBH.

[Arcane1]

I have a pretty simple outlook on these things. If someone is threatening me, or in some way making me feel threatened, I'm not too awful bothered. In previous excursions I have been known to heal pretty well and without too much scarring.

Now, if someone messes with or even hints at messing with my family or one of the very few that I consider to be in the "friend" category, then their life is in serious jeapordy. Whatever it takes to make certain that they are no longer a threat is justifiable to me.

If the law has anything to say about it, then they can talk to me later.

Granted, I've never hit a person in my life, broken a few bones, but never hit.

[Happy Camper]

What is a claim of right and how is that different from acutaly owning it ? It's it like "thats my seat on the train ?"