When police respond to a domestic incident, they do not always get the full picture. Victims of family violence are sometimes the ones who end up charged with assault, particularly where both parties have injuries, where the situation was chaotic, or where a statement was made before a lawyer was consulted.
If you defended yourself from attack, or if you have experienced ongoing family violence, you may have a complete defence to the charge against you. Self-defence, properly presented, can result in a full acquittal. The prosecution bears the burden of disproving it, not you.
This fact sheet explains how self-defence works under NSW law, why victims sometimes end up charged, what evidence matters, and what to do if you are in this situation.
Key Takeaways
- Self-defence is a complete defence to assault under section 418 of the Crimes Act 1900 (NSW). If established, you must be acquitted.
- Once self-defence is raised with some supporting evidence, the prosecution must disprove it beyond reasonable doubt. You do not have to prove you acted in self-defence.
- NSW courts can consider the history of violence and coercive control in the relationship when assessing whether your response was reasonable.
- A domestic violence notation on a charge carries consequences beyond the criminal matter itself, it can affect AVOs, parenting arrangements, firearms licences, and working with children checks.
- The most common mistakes in these cases, making statements to police without legal advice, failing to document injuries, not preserving evidence of prior violence, are all avoidable with early legal help.
- O’Brien Criminal & Civil Solicitors have extensive experience defending assault charges in domestic violence cases across NSW, including where the person charged was the victim.
At a Glance: Act Quickly If You Have Been
- Charged with assault following a domestic incident where you were defending yourself
- Served with an interim ADVO alongside a criminal charge
- Injured during the incident but found yourself being charged rather than the other party
- Asked to make a statement to police, with or without having spoken to a lawyer first
- About to attend your first court date without legal representation
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 before entering any plea.
Why Victims Sometimes End Up Charged
NSW Police have a practice of charging all parties involved in a domestic incident where there is evidence of mutual violence, regardless of who was the primary aggressor. A person who acted in self-defence, or who was the victim of ongoing family violence, can find themselves facing criminal charges as a result.
Common reasons this happens include police attending after the fact and hearing only one account, both parties having visible injuries with police unable to immediately determine who was the aggressor, statements made by the person charged before speaking to a lawyer being used to support the charge, family members or bystanders giving accounts that do not accurately reflect what happened, and police making a risk assessment that leads to charges being laid as a precaution.
Being charged in these circumstances is distressing and often feels deeply unjust. The criminal justice process does, however, give you the opportunity to put forward the full account of what happened, including a self-defence claim.
How Self-Defence Works Under NSW Law
Self-defence is a complete defence to an assault charge under section 418 of the Crimes Act 1900 (NSW). If it is established, you must be acquitted, regardless of whether the prosecution has proven the assault itself.
Two elements must be satisfied:
- Genuine belief the conduct was necessary. You genuinely believed your actions were necessary to defend yourself (or another person), or to prevent or terminate your unlawful detention. This is a subjective test, it asks what you actually believed at the time, not what a reasonable person would have believed.
- A reasonable response to the circumstances as you perceived them. Even where the first element is satisfied, the response must be proportionate to the threat as you perceived it. This is assessed from your perspective at the time, not from the perspective of a bystander who does not know the history.
Both elements must be satisfied, but courts assess them in the context of everything you knew and had experienced, including a history of violence or coercive control in the relationship.
The Prosecution Carries the Burden
Once self-defence is raised with some supporting evidence, the prosecution must disprove it beyond a reasonable doubt. You do not have to prove that you acted in self-defence. If the prosecution cannot rule out the possibility that you were defending yourself, the charge must fail. This is a significant protection.
Defence of Another Person
Section 418 also covers acting in defence of another person. A parent who uses force to protect a child from an attacking family member, or a person who intervenes to protect someone else in the household, may have a valid self-defence claim. The same two elements apply.
Excessive Self-Defence
Where self-defence is raised but the response is found to have been excessive, the accused is not automatically convicted of the original charge. Under section 421 of the Crimes Act 1900, a person who uses excessive force in circumstances that would otherwise support self-defence may be convicted of a lesser offence. In assault cases in the Local Court, this can result in a finding on a lesser charge rather than full acquittal, which is still a significantly better outcome than conviction on the original charge.
How Courts Assess Self-Defence in Domestic Violence Cases
Domestic violence cases raise particular complexities for self-defence claims, and NSW courts are required to consider contextual factors that go beyond the isolated incident charged.
History of violence and coercive control. Courts can and do consider the history of the relationship when assessing whether you genuinely believed your actions were necessary. A person who has experienced ongoing violence or coercive control may have a heightened sense of danger that makes a response appear reasonable in context, even if it might seem disproportionate to an outsider. The Crimes (Domestic and Personal Violence) Act 2007 (NSW) includes coercive control as a form of domestic violence, and a pattern of controlling behaviour is directly relevant to the self-defence assessment.
Physical differences between the parties. Courts take into account differences in size, strength, and physical capacity. A person who is physically smaller or less powerful than their attacker may reasonably perceive a greater threat from a lesser act of aggression, and may reasonably use more force than might otherwise seem proportionate.
Attempts to retreat or de-escalate. NSW law does not impose a duty to retreat before using force in self-defence. However, evidence that you tried to leave, de-escalate, or avoid the confrontation is relevant to the genuineness of your belief and the reasonableness of your response. Courts view such attempts as consistent with acting defensively rather than aggressively.
Your perception of the circumstances. The second element of self-defence is assessed from your perspective, not from an objective bystander’s viewpoint. If you genuinely believed you were about to be seriously harmed, even if that belief was mistaken, this can still support a self-defence claim, provided the response was proportionate to the threat as you perceived it.
Evidence That Supports a Self-Defence Claim
Building a self-defence case in a domestic violence matter requires careful identification and presentation of evidence. The following are commonly important.
Your own account. A clear, detailed, and consistent account of what happened, how the attack or threat began, what was said, what you perceived, and what you believed at the time, is central to any self-defence claim. Preparing this carefully with your lawyer before giving evidence in court is essential.
Medical evidence and photographs of injuries. Medical records documenting your injuries, taken at the time or shortly after the incident, are powerful evidence that you were the victim rather than the aggressor. Photographs should be taken as soon as possible and again over the following days as bruising develops.
Prior incidents and history of the relationship. Records of prior incidents involving the same person — previous police call-outs, AVOs, medical presentations, or messages and emails describing prior threats or violence, establish the context in which you acted.
Witness statements. Statements from anyone who witnessed the incident, or who has knowledge of the history of violence in the relationship, can corroborate your account. Family members, neighbours, or friends who have seen or heard relevant conduct can be important witnesses.
Police body-worn camera footage and triple zero recordings. The conduct and statements of all parties captured on body-worn camera when police attended are often revealing. Recordings of triple zero calls can also show who was seeking help and in what state. Inconsistencies between what was recorded and what is alleged in the charge can be significant.
Gaps in the police investigation. Police investigations of domestic incidents are sometimes incomplete, photographs of the accused’s injuries may not have been taken, witnesses may not have been interviewed, CCTV from nearby locations may not have been obtained. A thorough defence review of the police brief can identify these gaps and expose failures in the investigation.
Expert evidence. In some cases, expert evidence from a psychologist specialising in family violence can help the court understand the context in which you acted, including the effect of sustained coercive control on a person’s perception of threat and their response to it.
AVOs and the Criminal Charge
In most domestic assault cases in NSW, an Apprehended Domestic Violence Order (ADVO) application will run alongside the criminal charge, either as an interim order issued by police or applied for by the complainant. ADVOs are dealt with under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and are separate from the criminal charge, but are usually managed at the same time.
If the criminal charge is successfully defended, the ADVO application will often fall away or be significantly weakened. However, even where a charge is withdrawn or results in acquittal, the court may still make a final ADVO if there is evidence of conduct warranting protection, even if that conduct does not meet the criminal standard of proof.
Where both parties have experienced conduct by the other, mutual ADVO applications can arise. These require careful handling, particularly where children are involved or family law proceedings are on foot. See our factsheet on ADVOs and domestic violence charges for more information.
Real-World Scenarios
Scenario 1: The Person Who Called Police Gets Charged
A woman calls the police after her partner becomes violent. When officers arrive, both parties have visible injuries. Police, unable to immediately determine who was the primary aggressor, charge both. Despite being the person who called for help, she is served with a charge and an interim ADVO. Her lawyer obtains the body-worn camera footage, which shows her distressed state and her injuries. The prosecution’s case is challenged at a defended hearing, and the magistrate finds self-defence has not been disproved beyond reasonable doubt. She is acquitted.
Scenario 2: A History of Coercive Control
A man with a long history of controlling behaviour physically attacks his partner when she attempts to leave the home. She uses force to get away and sustains injuries in the process. He reports to police that she assaulted him. She is charged. Her lawyer gathers medical records, prior police call-outs, and messages documenting the pattern of coercive control. Expert evidence from a psychologist is obtained to assist the court in understanding why she perceived the threat as she did. The magistrate is satisfied the prosecution cannot disprove self-defence.
Scenario 3: Defence of a Child
A mother intervenes physically when her partner begins assaulting their child. She is charged with assault. Section 418 of the Crimes Act covers acting in defence of another person. The same two-part test applies, genuine belief the conduct was necessary and a reasonable response to the circumstances as perceived. Evidence of the partner’s conduct toward the child and the mother’s perception of the danger is central to the defence.
Read more criminal defence case studies.
Frequently Asked Questions
Can I raise self-defence even if I was also injured?
Yes. In fact, your own injuries are evidence supporting your self-defence claim. Medical records and photographs documenting your injuries can be powerful evidence that you were acting defensively rather than as the aggressor.
Do I have to prove I acted in self-defence?
No. Once self-defence is raised with some supporting evidence, the prosecution must disprove it beyond reasonable doubt. If the prosecution cannot rule out the possibility that you were defending yourself, the charge must fail.
What if my response was more forceful than it needed to be?
This goes to whether the response was proportionate to the threat as you perceived it. Courts assess proportionality from your perspective at the time, taking into account everything you knew about the person and the history of the relationship. Where the force used was excessive, section 421 of the Crimes Act may still allow for a conviction on a lesser charge rather than the full assault charge.
What if I made a statement to police before speaking to a lawyer?
Statements made to police before legal advice is obtained are a common problem in self-defence cases. Your lawyer will review what was said and assess whether it can be challenged or contextualised. The fact that you made a statement does not mean your case cannot be defended, but it does make early legal advice about the rest of your case more important.
Can I consent to an ADVO without it affecting my criminal case?
Consenting to an ADVO without understanding its consequences is one of the most common mistakes people make in domestic violence matters. An ADVO is not a criminal conviction, but it carries real consequences, for parenting arrangements, firearms licences, working with children checks, and future proceedings. Speak to a lawyer before agreeing to any AVO or ADVO.
What if the other party has also been charged?
If both parties have been charged, the cases are usually heard separately. Your case stands on its own evidence and your own self-defence claim. The fact that the other party faces charges does not automatically support or undermine your case, but it is a relevant piece of the overall picture that your lawyer will consider.
What to Do Right Now
If you have been charged with assault in a domestic setting and believe you were acting in self-defence:
- Do not make any further statements to police. Anything you say can be used against you, and self-defence cases are particularly sensitive to how events are described.
- Seek medical attention and have your injuries documented, even if they seem minor.
- Photograph all injuries, including bruising that develops over the following days.
- Write down exactly what happened while the details are fresh, what was said, who did what, in what order, and what you believed at the time.
- Preserve all evidence, messages, call logs, photographs, and any records relevant to the incident or the history of the relationship.
- Do not breach any interim AVO or ADVO conditions, even if you believe the order was wrongly made. Breaching an AVO is a separate criminal offence.
- Contact a criminal defence lawyer before your first court date.
How O’Brien Criminal & Civil Solicitors Can Help
O’Brien Criminal & Civil Solicitors has extensive experience defending assault charges in domestic violence cases across NSW, including cases where the person charged was the victim of family violence. We appear regularly in the Local Court, District Court, and Court of Criminal Appeal.
Call O’Brien Criminal & Civil Solicitors on 02 9261 4281 or enquire online for a confidential consultation.
This fact sheet provides general legal information only and does not constitute legal advice. Every case is different. If you have been charged with an assault offence, seek independent legal advice about your specific circumstances promptly.
