spatial
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Post by spatial on Mar 28, 2018 9:29:11 GMT 10
I have no experience with Australian criminal law which is very different to civil or environmental law - so don't take what I have written below as legal advice - just my understanding on how things roll.
My understanding of the law is that it is all about intent. If one has a baseball bat under your bed and an person breaks into your house and you pummel them with the bat. If you tell the court that you keep the bat under your bed for the purpose of beating people up then you are in trouble. If you say the bat belongs to one of your children who used to play soft ball and they left it in your room and you just garbed the nearest thing in a panic you are all good.
Likewise if you keep a knife or any purposely designed item for self defence that can harm a person one can end up in deep legal problems. If you have a first aid kit with a decent pair of scissors and you stab an attacker in the throat with it - you simply acted out on the perceived threat and improvised (you aimed for the arm that was attacking you and missed, stick to your story). Keep every day items that can reasonable be thought to be in your possession without it being considered an offensive weapon.
When it comes to self defence I go crazy African style - pick up the entire bedside table and hit the person with it - think big.
Beware of intent and when an incident happens don't make statements to police or ambulance etc.. just say you cant remember what happened it all happened to fast - get legal advice. In the heat of the moment people tell law enforcement way to much and it often comes back to bite you.
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spatial
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Post by spatial on Mar 28, 2018 10:21:47 GMT 10
Spatial, my understanding of the law is that intent is irrelevant when claiming self defence. The jury would be instructed to only consider the two aspects I listed in my previous post. For example, if I kept a loaded gun in my room and used it to kill an intruder, it would have no relevance during my trial if I claim self defence. The ONLY relevant aspect would be: was my fear genuine and did I honestly consider my response reasonable. As for intent, that seems to be an urban myth. Intent is very difficult to prove. Intent is a mindset, and how can 12 people of different ages and backgrounds unanimously determine what your mindset was when they are not permitted to know anything of your history or background? But I agree to never make a statement. Almost got burnt once by doing that. What you say is true, but if one has a baseball bat with nails in it and clobbered a guy with it, - you had intent to make a deadly weapon and used it or you had a mindset to injure people that is why you made the bat. I think it will there is a big risk of legal repercussions.
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grumble
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Post by grumble on Mar 28, 2018 17:38:36 GMT 10
The core component is the jury will be asked in basic terms
is what you did reasonable ? would a reasonable person done the same ?
if you can tick yes to both boxes then you are sitting pretty in terms of self defence
I will give a personal example of where I have had to deal with the legal system on this matter
when working in a remoter part of Australia where things were still a bit wild things used to flare up quite quickly and the nearest police were 145ks away
I was walking to the local pub to have tea when I noticed there was a disturbance so I decided to head back home and that's were it all went bad because on the way back I encountered a large group of pissed off people who proceeded to attack me for no reason other than I was in the wrong place at the wrong time
long story short I ended up with 2 broken ribs 4 fractured fingered 2 missing teeth 27 stitches and a bunch of bruises they attacked me with a star picket a garden hose a lump of wood and a plastic chair yeah one of those green garden plastic chairs totally pointless but annoying as hell
The main thing I remember was I kept thinking don't fall down don't fall down don't fall f*cking down or you're done for
while truthfully I don't remember much the main thing I remember were the police visiting me in hospital to take my statement and to let me know they were investigating whether or not I will be charged with assault with a deadly weapon and causing grievous bodily harm Thankfully the officer was kind enough to let me in on a secret and that was
no judge in qld would accept a person of legally sound mind would unprovoked attack a group of 9 people so my actions were performed under duress in genuine fear for my life he even assured me that with my statement and the statements of other witnesses to the event it wont even get to court
oh and the deadly weapon was a rock that I picked up
It was a clear case of self-defence as the courts recognise that if you get attacked by a group of three or more people the chances of you defending yourself successfully from a life threatening injury without a force multiplier are very slim and given only a week beforehand a young ringer had been beaten and stomped so badly that he was still on life support it was a very real possibility of sharing the same fate
my point is there are effective laws dealing with self defence in Australia just don't go to far and for the love of god if some one attacks you even if they have a weapon and you get the upper hand and proceed to hand them their ass the moment they yell stop! or help! Immediately stop and back away from them because they have clearly demonstrated they are no longer a threat to you and anything you do beyond that point you will be held legally accountable for worse still they suddenly become the victim and you the aggressor it only takes one person to say they heard them yelling for help or begging you to stop and you didn't this alone will sink your whole argument of self defence
Ask any good barrister and they will confirm this is very much the case
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Post by spinifex on Mar 28, 2018 18:10:32 GMT 10
This is a very interesting conversation. Definitely a good plan to be fairly forgetful and very contrite after the event. And in my experience not too difficult for that to be actually true. Well ... at least the forgetful bit.
I live by the rule: Better to explain it to a judge than Saint Peter.
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Post by Peter on Mar 28, 2018 20:13:18 GMT 10
I've said it before, and I'll say it again...
Keep a ball and mitt next to your baseball bat. Your defense attorney will thank you for it.
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Morgo
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Post by Morgo on Mar 28, 2018 21:48:57 GMT 10
The best advice that can be given with regards to self defence and the Australian legal system is don't find yourself in that position!
Our legal system is a LEGAL SYSTEM, it is not a JUSTICE SYSTEM.
Regardless of how clear cut it may seem on paper it is rarely that simple. Generally a best case scenario is not to be convicted or have anything against your name but in many cases someone who shouldn't have to will have to go through the whole legal system to get this result which is;
- incredibly stressful - time consuming - very costly.
Again legal system, not a justice system.
FYI, intent is VERY important in basically every part of law. The intent of what is written, regardless of what it actually says its the intent that matters most. Same thing for the intent of the individual involved.
With regards to having something for the intent of using it to defend yourself, that's a no go. You can not have anything for the purpose of self defence or with the intent of using the item for self defence.
NEVER admit to having something for that reason.
Also, never talk to the police with out legal aid. This is where many good people, thinking they can trust the police and things will be better if they explain themselves, come undone or find themselves in a difficult position later in court.
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Morgo
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Post by Morgo on Mar 28, 2018 21:55:11 GMT 10
Spatial, my understanding of the law is that intent is irrelevant when claiming self defence. The jury would be instructed to only consider the two aspects I listed in my previous post. For example, if I kept a loaded gun in my room and used it to kill an intruder, it would have no relevance during my trial if I claim self defence. The ONLY relevant aspect would be: was my fear genuine and did I honestly consider my response reasonable. As for intent, that seems to be an urban myth. Intent is very difficult to prove. Intent is a mindset, and how can 12 people of different ages and backgrounds unanimously determine what your mindset was when they are not permitted to know anything of your history or background? But I agree to never make a statement. Almost got burnt once by doing that. First question they will ask you is "what was your intent for having a loaded firearm in your room" The answer is obvious to the court. You can't have a legally owned firearm loaded in your home. Breaking the law there. You can't have a firearm for the purpose of self defence. Breaking the law there again now. Now your no longer the innocent victim you want to be seen as. Now you're also a criminal.
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ml8300
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Post by ml8300 on Mar 28, 2018 23:45:24 GMT 10
I was taught in my security course years ago, that it all comes down to what you say. As long as you say, I feared for my life, and I used equal and reasonable force to defend myself, you can beat someone to a pulp, just stick to to that saying and don't falter from it. If the police ask, could you of done it this way, say no. If you say yeah I could of, you'll get done.
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Morgo
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Post by Morgo on Mar 29, 2018 10:44:50 GMT 10
It still has to be proven it was self defence first though.
The intent of having that loaded firearm matters because it casts doubts on whether it was really self defence or a form of murder.
The security guard was permitted to have a loaded firearm to be used for protection and defence, residents in NSW are not allowed this in their homes.
It could be said, knowing that it was illegal for you to have a loaded firearm yet still doing it, that your intent in having a loaded firearm was to harm or kill someone.
The act of using a firearm for self defence in Australia, circumstances contingent, is not illegal even though they are not allowed for this purpose to ordinary people. But as someone has said, having a bat with spikes or nails in it demonstrates an intent to harm. Having a loaded firearm would be seen as the same thing.
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Ammo9
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Post by Ammo9 on Mar 29, 2018 11:55:29 GMT 10
Self defence is legal, self protection is illegal. You can't plan to protect yourself or prevent a crime, at least in victoria.
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Ammo9
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Post by Ammo9 on Mar 29, 2018 11:58:37 GMT 10
And reference using firearms, new laws coming in in victoria will make havng a loaded firearm where it might be considered unsafe an offence along with several other similar offences... so you might get off the assault or murder charge but then be convicted on half a dozen firearm offences.
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Beno
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Post by Beno on Mar 29, 2018 15:04:42 GMT 10
and then taken to the cleaners through civil suits. you might win the court case initially but the system will break you financially.
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Post by spinifex on Mar 29, 2018 16:51:45 GMT 10
Our legal system is a LEGAL SYSTEM, it is not a JUSTICE SYSTEM. Also, never talk to the police with out legal aid. Your point about it being a Legal system and not a Justice system is really significant. One requires getting to the truth the other does not. It just requires an acceptable explanation. Like any system (taxation comes readily to mind) there are presumably ways to use it to your advantage and ways to get crushed by it. It seems like the system really just wants to apportion blame and cost by way of explanation. The truth is optional in explaining things. Ask any 4 year old. Thus your second point (and made by others) seems super important. Let an expert do the explaining. I'm seeing an opportunity for pre-preparing an explainable scenario for using ANY amount of force. Which would be to always swear blind that you thought the intruder was holding a gun. Intruders rarely intrude on well-lit situations so it ought to be an acceptable explanation for the 'system' to digest.
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Morgo
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Post by Morgo on Mar 30, 2018 8:29:28 GMT 10
Well I guess we will have to agree to disagree.
I don't think anyone here is scared of the legal system but rather, as I've already said, its a "legal" system not a "Justice" system and many people simply do not have much trust in what they see as a flawed/broken system. I know from personal experience from the several cases I've witnessed that its a flawed system where innocent people are financially crippled and emotionally devastated because of it.
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Ammo9
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Post by Ammo9 on Mar 30, 2018 8:52:42 GMT 10
You might not to jail in the first instance but you'll be bankrupted and lose any and all police issued licences/ permits.
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Post by spinifex on Mar 30, 2018 13:48:35 GMT 10
I had an elderly relation (60) who shot 'near' a couple of younger (late 20's) blokes during an altercation ... and ended up with nothing worse than a couple of weekends of community service and the firearm being confiscated. Legal costs quite minor. The judge said he could even apply to have the firearm returned. So it ain't all doom and gloom. We found out later that the other parties, who had a few convictions against them already, got much heavier penalties for their aggravated assault charges.
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Beno
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Post by Beno on Mar 30, 2018 19:12:35 GMT 10
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Post by SA Hunter on Mar 30, 2018 21:46:29 GMT 10
A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a 'defensive purpose' (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment) under s 15 Criminal Law Consolidation Act 1935 (SA).
If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
This will be a complete defence to an offence, including murder, as long as the force used was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat the defendant genuinely believed to exist (for example, see Zecevic v DPP (1987) 162 CLR 645). See however the exception to reasonable proportionality in: Home invasion.
It will be a partial defence to murder, reducing the offence to manslaughter, if, despite the defendant believing his or her actions were necessary, the conduct was not reasonably proportionate to the threat that the defendant believed existed.www.lawhandbook.sa.gov.au/ch12s10s08.phpThis is from SA Laws - I'd check what your own State Law says.
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Post by SA Hunter on Mar 30, 2018 21:49:16 GMT 10
In the case of a home invasion (that is, a serious criminal trespass in a place of residence), acting for a defensive purpose or to defend property can be complete defences to an offence, including murder, even if the defendant's conduct was not objectively reasonably proportionate to the perceived threat [s15C Criminal Law Consolidation Act 1935 (SA)]. What is required is that the defendant genuinely believed that the victim was committing or had just committed a home invasion .
This section is not available if the victim was an on-duty police officer , or if the defendant was themselves engaged in criminal activity that might have given rise to the threat , or if the defendant was affected by drugs (unless involuntarily taken, or prescribed or over-the-counter and used appropriately .
www.lawhandbook.sa.gov.au/ch12s10s03s01.php
This relates to home invasion ( now, not sure how I made these lines appear either).-
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Post by Peter on Mar 30, 2018 21:56:35 GMT 10
The problem as I see it is the term "reasonably". When I studied business law (just a 101 unit as part of a commerce degree - not an entire law degree) we were cautioned about interpretation of that word.
What is reasonable to one person may be unreasonable to another. For example, I believe it is reasonable to find a home invader as a serious threat to my self and my family, and deal with them accordingly. Those on the political left (for example) may find it reasonable to see them as a suffering person in need of help, understanding, and hospitality. No, I don't understand that view either.
I guess it depends on how good your lawyer is and who's in the jury.
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