Most agree that Queensland Senator Fraser Anning's public response to the terrorist massacre in Christchurch where 50 defenceless Muslims – including children – were slaughtered as they prayed in two mosques, has been nothing short of disgraceful.
As a result, the senator has been censured by parliament and both the prime minister and opposition leader have made clear these types of views unacceptable in parliament.
"I would normally not want to give this any oxygen, but I want to absolutely and completely denounce the statements made by Senator Anning ... on this horrendous terrorist attack, with issues of immigration, in his attack on Islamic faith specifically," Mr Morrison told the media."
Opposition leader Bill Shorten similarly stated:
"I cannot dream what world a politician or any Australian is seeing by blaming their victims and the faces of those being murdered.
"It is disgusting and has no place in the Australian Parliament and hopefully the voters will deal with this fellow in the most effective way."
The egging and response
This article is not about the senator's response. Nor is it about the atrocity that occurred on 15 March 2019 – a date which stands to be etched into history.
It is also not about the origins or causes of terrorist atrocities, or the different way people from different cultures are treated by the police and the media, or 'which side is worse'.
The question this article poses is: does the senator's response to being egged amount to self-defence, or was it disproportionate and therefore an assault?
Most of us have seen the footage: Mr Anning is addressing the media at a political meeting in Moorabin, south-east of Melbourne, when a slightly built 17-year old breaks an egg into the back of his head, while the teen films the act on his mobile phone.
That conduct certainly amounts to common assault under the law, regardless of Mr Anning's prior comments or views.
Upon egging the senator, the teen steps backward and continues to film, with his left hand holding a phone and right arm down. He certainly does nothing to indicate a further attack – in fact, his movements suggest the contrary.
The senator then turns to his left to face the teen and, after a brief moment of observation, strikes at his face. As the teen stumbles backward, the senator moves towards him and strikes him a second time.
Almost simultaneous with the second strike, the teen attempts to strike back at the much larger man, before being thrown to the ground by the senator's minders, placed in a headlock and manhandled.
The law of self-defence in our state is contained in section 418 of the Crimes Act 1900 (NSW).
The section provides that a person is not criminally responsible if he or she believes their actions were carried out in self-defence, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.
The defence is available where the conduct is necessary to:
- defend himself or herself or another person, or
- prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- protect property from unlawful taking, destruction, damage or interference, or
- prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.
Section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence.
If the prosecution is unable to do this, the defendant must be acquitted.
This is very similar to the law in Victoria, where the incident occurred.
In that regard, section 322 of the Crimes Act 1958 (Vic) provides that:
(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if—
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them.
Do the actions amount to self defence?
In the event Mr Anning is charged with assault, his defence lawyers would likely raise self-defence at any ensuing hearing.
They could do this by adducing evidence the senator was fearful for his safety and that his response in striking the teen was reasonable in the circumstances as he perceived them at that time.
Film of the footage would be played during the prosecution case, which would precede any evidence brought by the defence.
The senator might take the witness stand at the start of the defence case in an attempt to explain his reaction by testifying about his fear at the time – specifically, that he felt the strikes were necessary in his own defence.
There is no doubt extensive cross-examination would follow, likely canvassing areas such as the conduct of the teen after the egging – especially the fact he took backward steps and had his 'free' hand down before being struck – the teen's size and demeanour, the fact the senator is seen to look at the teen rather than react instantaneously, the fact his guards are nearby, that he could have simply stood in the same place or moved away (and the conduct was therefore unnecessary), that he moves toward and strikes a second time as the teen stumbles backward (raising 'excessive self defence', which is equally an assault under the law) – and the list goes on and on.
The prosecution would later make closing submissions that there is no reasonable possibility – in all the circumstances – the senator's actions could be considered a reasonable response under the law.
In view of the footage, that would seem to be strong submission, unless the senator's court testimony regarding his fears turned out to be credible and compelling in the eyes of the magistrate.
In that regard, the defence might make closing submissions – if supported by the evidence – that their client had been the subject of online threats leading up to the incident – which were on his mind at the time – that he was not aware of the precise nature of the attack that had just occurred against him, was fearful that his assailant might continue with the attack, and that his reaction was reasonable to subdue the threat as he perceived it at the time.
The decision regarding guilt or innocence would, of course, be solely for the magistrate, and the senator would be entitled to an acquittal if the prosecution could not negative the possibility of self-defence beyond a reasonable doubt.
Let the court decide
In any event, the law makes clear that police require only a suspicion on reasonable grounds that an offence has occurred in order to bring criminal charges against a suspect. They can consider a range of discretionary factors when deciding whether charges should be brought in any given situation.
Needless to say, charges can be brought against more than one participant in an assault, even if only two people are involved.
There is little question the footage is more than enough to provide a reasonable suspicion that senator Anning committed an assault.
It is suggested the senator should therefore be charged and the matter left to the determination of a court of law.
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