What can you do when you defend someone under attack?

Written by Phil O'Brien

So you’re a good Samaritan and confident enough to step in and defend a person under attack — but can you do it and be able to claim that you acted in self-defence?

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Coming to the aid of another can get messy, so be prepared 

The answer is yes, but, as always, conditions apply. In the eyes of the law, acting as a good Samaritan and coming to the aid of another can be classed as self-defence and so the same tests will be used in court.

In New South Wales, Section 418 of the Crimes Act 1900 states that you are not criminally liable if you carry out your actions in self-defence, which includes the defence of others, described as follows:

“A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

• to defend himself or herself or another person, or

• to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

• 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.”

The Victorian Crime Act, Queensland Criminal Code and Western Australian Criminal Code all have similar provisions and, of course, some protection is also provided by precedents in case of law such as those discussed in previous issues (the leading case on self-defence is Zecevic v DPP (1987) 162 CLR 645).

As with any claim of self-defence, the following questions will be asked:

Was your behaviour or response to the attack necessary? In other words, did you believe that the person you were coming to assist or save was in real danger of being hurt, injured or worse? This belief must be grounded in reality — you can’t use force against a person just because you think they might attack someone else.

Secondly, were your actions reasonable in the circumstances as you perceived them? Would the level of force you applied be considered ‘reasonable’ in the circumstances, as judged by a reasonable person?

If you step in before the other person is attacked, you will have to argue that they were in imminent danger of attack and that your actions were the only way of stopping it — thus being reasonable under the circumstances.

In New South Wales, the Civil Liability Act also provides good Samaritans protection from being sued (check your state for similar protections). It states that “a good Samaritan is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured”.

Section 52 of the Civil Liability Act, which refers to self-defence, also protects a good Samaritan from being sued but only if:

“the conduct to which the person was responding:

(a) was unlawful, or

(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

And again, this legislation reiterates that, “A person carries out conduct in self-defence if and only if the person believes the conduct is necessary to defend himself or herself or another person.”

So, the key elements of the good Samaritan defence are:

• You ‘acted in good faith’,

• Your actions were necessary

• Your actions and any force you used were reasonable under the circumstances.

A note of caution, though: If it was your friend who started the fight and then found themselves in a losing position, your good Samaritan defence could be compromised, as your actions could be considered as being part of the initial attack and you could find yourself charged with affray.

In these circumstances, your best option as a good Samaritan would be to remove your friend from the fight as soon as possible without actually engaging the other person.

Remember, almost everyone has a camera phone and almost everything is recorded. It will be hard to argue that you acted in the defence of another person if the video shows otherwise. This is where some knowledge of restraining and unbalancing techniques, rather than striking alone, will come to the fore.

And, as with any incident involving self-defence, please heed the advice of previous articles. If and/or when you are dealing with the police or anyone else that wants you to provide your side of the story, say nothing until you have received competent legal advice.
 
Disclaimer: This is general information only; it does not replace advice from a qualified solicitor. Should you require legal advice, seek it from a suitably qualified and experienced legal practitioner in your state or territory.

Read more self-defence articles here.