The elements for claiming self-defense

on Feb 24 ( Malaysia ), a father and his son were charged for murdering a robber in order to protect their family members under Penal Code 302 ( Punishment of Murder ). Once they were sentenced, they will face death penalty.

This case was gone viral on the internet especially on Facebook. A lot of the people were reacted vigorously on behalf of the father and son. Most of the comments: they were self-defence for the family, why the murder charged ? Malaysia legal system is stupid! Malaysia court has no justice ! and the list goes on.

There are certain elements needed to be fulfilled in order for someone to claim self-defence and claiming self defence should be very particular when it comes to fulfilling the elements otherwise the other outcome such as facing secondary degree murder charged will happen.

Self defence applied only when three circumstances come together
1) necessity is great
2) it exists right now
3) for prevention only

Pre-emptive strike ( come too soon ) or Retaliation ( come too late ) are not allowed !

The elements of self-defense

Unprovoked attack 

The defender did not start the attack, if yes self-defence is not available to an initial aggressor.
But there is an exception: withdrawal of treat exception

For example : A son is threaten to shoot his father with a gun. The father went to a neighbour's house, borrowed the neighbour's gun and came back. The son told him to "stop". When the father shot, the son turned and ran, the father pursued him. The son then turned and shot his father, killing him.

The son had completely withdraw his treat by saying "stop" to his father. When the father shot, the son did run. In this withdrawal of treat situation, the father still pursue him and the son had the right for claiming self defence.

Necessity

The defenders could only allow to use deadly force when it is extremely necessary to repel an imminent deadly attack or serious bodily injury. The imminent deadly attack should happening at this moment, could not be yesterday and of course in the future. The necessity of defence not only to save your life but other as well.

The necessity allows you to respond even if you have reasonable belief that someone is going to hurt you. An action of grabbing a fist/ the action that is highly positive to hurt you.


Proportionality

Defender can use deadly force only if the use of non deadly force is not enough for the situation otherwise the proportionality does not exist. Excessive force is not allowed such as the number of people, and the type of weapon used. Threats alone can never justify deadly force but you need reasonable belief there was a threat.

Reasonable belief

The defender should reasonably believe that is necessary to use deadly force to repel the imminent attack. There are some statutes allow one to kill in defence for crime such as rape, sodomy, kidnapping as well as armed robbery. The defender must retreat unless the situation would unreasonably expose the person to death or serious bodily harm. You have to run whenever possible. Minority retreat rule says you have to retreat if you reasonably believe that you are in danger of death. Otherwise, it doesn't make sense of saying you have reasonable belief the person is going to harm you but you choose not to run and fight him.


Stand your ground rule

If you are not the initial aggressor, you do not have to retreat. If he did not start the fight, he can stand his ground and kill to defend himself.

For example: A burglar broke into your house and try to attack you when you discover his presence. House is suppose to be the safest place for you, thus you can fight the burglar with deadly forces. This is known as castle' exception.

Coming back to the case which the father and son were charged by murder. The robber was found dead when his hands and legs were tighten up.

Necessity for self-defence -> yes
Proportionality for self-defence -> no, in fact, is overkilled
Unprovoked attack -> yes, the robber attack them and they did not initiate the fight
Retreat doctrine -> no, both of them did not try to try yet they fight back immediately

The details of the case might be unknown but what I want to say is, claiming self-defense is not easy in fact it is extremely hard to claim self-defence successfully. There must be a reason why the court charge them with Penal Code 302.

Therefore, I hope this post could help for reducing the viral comments as well as the extreme attitude toward the Malaysia Court System before knowing the fact as a whole. The information that I wrote here was not very details but the basic understanding for you to know what are the requirements for claiming self-defence.

Claiming self-defence should be something sincere to protect you when you have really no choice but to fight back with deadly force. Please do not use this as an excuse for escaping the guilt of killing someone when you are not necessary to do so.












Small Introduction:

My name is Avant, I am a final year forensic science student. I am inspired to write this blog because of Mr Oon Yeoh and I am very happy to share my learning. I am newbie of writing forensic related stuffs, if there is any other useful suggestion I am more than happy to know.

Thank you for reading