Pepper Spray

Zebee Johnstone said:

In aus.bicycle on 3 Feb 2007 12:46:09 GMT

Blue Heeler said:

Dave said:

On Sat, 03 Feb 2007 07:25:24 +0000, Blue Heeler wrote:

> It is however not illegal as such to actually use it, although
> there are a range of assault and weapon charges that could
> potentially be brought, they all have very good excuses and
> defences available.

Simply by carrying an illegal weapon, self defence becomes a very
flimsy argument for you to use.

That is incorrect.

You are making a lot of very short blunt all encompassing statements,
got anything to back them up?

Yes

Quoted message said:

Such as case law, legislation, any kind of legal publication?

Indeed. But both yourself and the other gentleman who were making wild
assumptions and passing them off as legal fact might like to do so for
yourselves, http://www.austlii.edu.au beckons, with one minor caveat,
you should ensure that the cases/legislation/scholarly articles you
read and perhaps rely on actually relate to the jurisdiction in which
you live, after all it does vary in minor, but important detail,
between the various States and Territories.

--

In aus.bicycle on 3 Feb 2007 21:31:17 GMT

Blue Heeler said:

Zebee Johnstone said:

You are making a lot of very short blunt all encompassing statements,
got anything to back them up?

Yes

Quoted message said:

Such as case law, legislation, any kind of legal publication?

Indeed. But both yourself and the other gentleman who were making wild
assumptions and passing them off as legal fact might like to do so for
yourselves, http://www.austlii.edu.au beckons, with one minor caveat,
you should ensure that the cases/legislation/scholarly articles you

Well, I at least was trying to be not quite dogmatic.

What were the results of your austlii searches?

Case names? Legislation?

You did do some?

I am mostly relying on conversations and secondary sources, what
austlii searches have you got available to hand?

Zebee

"Blue Heeler" <[email hidden]> wrote in message
news:[email hidden]...

Quoted message said:

hemyd said:

"Blue Heeler" <[email hidden]> wrote in message
news:[email hidden]...

Quoted message said:

slow verb wrote:

> I think roadies should keep pepper spray handy, we must
> protect ourselves.
>

A mate got "hassled" by a small group of youths the other morning
whilst he was out training.

An old style Zefal pump is a handy thing to defend yourself with -
it inflicted sufficient damage on two of them so as to cause them
to lose "interest" and the other jackals became more interested in
assisting them from the scene than in taking my mate's bike off him.

--

That would "escalate the violence". the morons would then be out to
kill you. Then some kindly judge would decide that they "were
provoked" and that's why they had to kill you. I think the wisest
option is to try to get the rego of their car and report the matter
to the police (I know it's difficult sometimes), but don't cause a
confrontation. Just swallow your pride and ride on.

Henry M.

You know, a wise man once said "opinions are like bum holes, everyone
has one". May I gently suggest that you were not there, and that to
make a blanket statement that the employment of violence will
inevitably result in an overall escalation of violence is the kind of
apologist twaddle that is at the root of many of the behavioural
problems that currently beset our society.

There was no car involved, merely a pack of youths on foot, full of a
mixture of alcohol, drugs and the knowledge that life on the street is
pretty much "it" for them combined with a well practiced "skill" of
taking from others the things they will never legitimately own.

Add to the mix my mate who was on his normal morning fitness ride and
who is smart enough to avoid locations where "street people" congregate.

It was the youths who were in the "wrong" (or at least out of
character) spot, not my mate.

In the circumstances by the time he fully appreciate what was happening
he was pretty much surrounded.

He had a choice:-

He could hand over his bike, wallet and phone, and then in all
probability get a kicking for his trouble.

Or, he could make a stand.
In causing as much "damage" as possible to the clear ring-leaders, he
deprived the mob of jackals of their directing mind and will. when it
became clear that he was both prepared to defend himself and his
property, and was capable of causing damage to anyone silly enough to
come within reach, they slunk off like the mongrels they are.

I occasionally have to ride through a part of town at night where I
have met similar scum. I have a collapsible baton - known as an "asp"
if you are a "The Bill" watcher, the one I have is about 250mm stored
and extends to a little over 600mm and has a hard rubber covered weight
on the business end.

My possession of it is illegal in the State in which I live, if I am
ever "called" for using it (and I have used it - twice) I'll take my
chances happily.

It is however not illegal as such to actually use it, although there
are a range of assault and weapon charges that could potentially be
brought, they all have very good excuses and defences available.

The bottom line legally is that you are expected to run if you can
where there is only the risk of property offences, but you are allowed
to defend yourself against offences to the person, providing that such
"defence" is not excessive. One person on their own laying into a group
of marauding dingos with a zefal pump (or an asp for that matter)
probably will not constitute "excessive" force - actually killing one
of the buggers might, certainly shooting them would, but merely
knocking them about a bit - never.

--

Sorry but I was generalising, not addressing the specific situation. The
situation I am addressing is where you see some deadhead in a car who has
almost run you down, and you want to take pieces out of him, or one who
yells obscenities at you. By yelling obscenities either at him for his
actions, or answering his obscenities with your obscenities, you could
change the situation into a physical confrontation. If you are built for
that, or if you have a suitable army assisting you, then I suppose that's
OK, but in my case for instance, where there is a fairly big chance I'll
come off second-best, I would advise just riding on. My problem is, though,
that i have trouble telling myself that.

That is, of course, my opinion, and I accept that there may be other more
valid opinions, especially in different cases.

Henry M.

Zebee Johnstone said:

Well, I at least was trying to be not quite dogmatic.

:-)

Quoted message said:

What were the results of your austlii searches?

Dunno didn't do any today, last time I had to research assault,
provocation, self defence and the rights/responsibilities/limits of
each was a while ago.

However, without turning this into either a "law lesson" or anything
that might be mistaken for "legal advice", for the QLD situation the
first port of call is the Criminal Code:-

___________________________________________________________________
CRIMINAL CODE 1899 - SECT 271
271 Self-defence against unprovoked assault

(1) When a person is unlawfully assaulted, and has not provoked the
assault, it is lawful for the person to use such force to the assailant
as is reasonably necessary to make effectual defence against the
assault, if the force used is not intended, and is not such as is
likely, to cause death or grievous bodily harm.

(2) If the nature of the assault is such as to cause reasonable
apprehension of death or grievous bodily harm, and the person using
force by way of defence believes, on reasonable grounds, that the
person cannot otherwise preserve the person defended from death or
grievous bodily harm, it is lawful for the person to use any such force
to the assailant as is necessary for defence, even though such force
may cause death or grievous bodily harm.
___________________________________________________________________

Now, the use of a proscribed weapon comes under another category
relating to the duty of a person in posession of a "dangerous thing".

____________________________________________________________________
CRIMINAL CODE 1899 - SECT 289
289 Duty of persons in charge of dangerous things

It is the duty of every person who has in the person's charge or under
the person's control anything, whether living or inanimate, and whether
moving or stationary, of such a nature that, in the absence of care or
precaution in its use or management, the life, safety, or health, of
any person may be endangered, to use reasonable care and take
reasonable precautions to avoid such danger, and the person is held to
have caused any consequences which result to the life or health of any
person by reason of any omission to perform that duty.
____________________________________________________________________

As I said previously, being attacked by a group of human dingos in a
circumstance where retreat is not practicable triggers the full range
of defences/excuses etc, the fact that you happen to possess a
proscribed weapon and then use it lawfully in your own self defence
will not protect you from action for the posession of it, but your
possession is utterly and completely irrelevant to the fact of you
using it in your defence.

The situation does of course vary from jurisdiciton to jurisdiction but
generally the principle will hold true that the physical possession of
a "thing" and the acts in which that "thing" is subsequently employed,
can, in circumstances of self-defence/necessity etc. can be seperated.

The final thing to be dealt with is the silly assertion that possession
of a weapon automatically means that the person possessing the weapon
is "looking for trouble", or that it reduces a person's rights in
relation to self defence. As that assertion was made by you, and of
course one other, you get to try and prove it....

--

hemyd said:

Quoted message said:

--

The situation I am addressing is where you see some deadhead in a car
who has almost run you down, and you want to take pieces out of him,
or one who yells obscenities at you. By yelling obscenities either at
him for his actions, or answering his obscenities with your
obscenities, you could change the situation into a physical
confrontation.

In both the circumstances you outline above, the correct action is to
ignore it. The law is pretty big on the "sticks and stones may break my
bones, but names can never hurt me bit."

I guess I tend to focus a little too closely on the close grained
detail and I failed to appreciate that you were not solely responding
to my post.

Quoted message said:

If you are built for that, or if you have a suitable
army assisting you, then I suppose that's OK, but in my case for
instance, where there is a fairly big chance I'll come off
second-best, I would advise just riding on.

Again, I would never, ever, advocate being the initiator of violence,
that's just plain silly, the best option, and in fact the requirement
under the law is that wherever practicable and reasonable to do so -
you bug out.

The situations to which I was referring are those where violence is
inevitable and the only remaining decision is whether you are going to
be the "giver" or the "taker".

Whilst this may seem a somewhat arch distinction, I suggest that in
reality such decisions are sadly forced upon people every day.

Quoted message said:

My problem is, though,
that i have trouble telling myself that.

I have no problem walking away from mere words - I see the consequences
every day of people failing to do that.

--

Blue Heeler said:

The final thing to be dealt with is the silly assertion that possession
of a weapon automatically means that the person possessing the weapon
is "looking for trouble", or that it reduces a person's rights in
relation to self defence. As that assertion was made by you, and of
course one other, you get to try and prove it....

And how does repeated failure of constable Plod to display any interest
in previous assult affect your chances?

If constabvle plod, actually seargent tubby, was to have goten off their
[censored] and done a bit of community policing, the murder of bicyclist might
not be happening.

hemyd said:

My problem is, though,
that i have trouble telling myself that.

Just keep your eyes open.[1]
It is surprising how many times you can uncover the home base of the
vehicle, brake fluid, side cutters, keys etc {:-).[2]

There was a time when you went to Constable Plod to lay a complaint and
they'd look up the rego number you gave them and ask you "do you know
any one from 'some suburb'? " then go onto give you the speil about your
word against theirs.

[1] I found the last idiot the next day, which was a bit of a shock to
him when he worked out "who the <crow-call> is that on the bicycle
waving to me".

[2] Another reason for greasing your cluster. The pauls don't clack and
advertise your prescence on quiet nights.

Terryc said:

And how does repeated failure of constable Plod to display any
interest in previous assult affect your chances?

I am not at all sure I understand what you are getting at.

Is it;

You have been repeatedly assaulted and you have reported these assaults
to one particular officer, who apparently has taken no action, or;

Or, you have been assaulted once, had no witnesses and no evidence, and
all you got from the police was tea and sympathy (no doubt doled out in
miniscule quantities), or;

You were trying to say something entirely different?

--

Blue Heeler said:

An old style Zefal pump is a handy thing to defend yourself with - it
inflicted sufficient damage on two of them so as to cause them to lose
"interest" and the other jackals became more interested in assisting
them from the scene than in taking my mate's bike off him.

I'd say that you won this 'argument' Bluey.
My congratulations to your friend. Now if I could get me a shotgun with
carbon stock and titanium barrel that would be nice!
Halcyon

Halcyon said:

Blue Heeler said:

An old style Zefal pump is a handy thing to defend yourself with -
it inflicted sufficient damage on two of them so as to cause them
to lose "interest" and the other jackals became more interested in
assisting them from the scene than in taking my mate's bike off him.

I'd say that you won this 'argument' Bluey.
My congratulations to your friend. Now if I could get me a shotgun
with carbon stock and titanium barrel that would be nice! Halcyon

A little too lethal for my liking.

If I thought I'd not get too much [censored] for using it, I'd buy a Tazer.
But at present there is a little too much hysteria surrounding their
use and the law in my jurisdiction lumps them in with concealable
firearms.

I'm not in any particular hurry to try and argue my way out of that
one......

--

quote='Terryc'slow verb said:

Here is one

http://www.kitbag.com.au/prod470.htm

Actually, I doubt if this is legal in NSW, unless you are a police officer.[/QUOTE]

How about flyspray/aero guard?? As last resort ,for and a quick getaway

Blue Heeler said:

Indeed. But both yourself and the other gentleman who were making wild
assumptions and passing them off as legal fact might like to do so for
yourselves, http://www.austlii.edu.au beckons,

How about:"and the conduct is a reasonable response in the circumstances
as he or she perceives them.". The interpretation is that if you think
you're being assaulted you're probably OK provided you take what the law
would see as a "reasonable response". The use of an illegal weapon,
particularly if concealed, is not generally going to be seen as reasonable.

You also appear to be equipped for a fight. That makes it much more likely
that a jury will believe you started a fight, rather than acting in self
defense. That's the line the opposition barrister will take, and it's up
to the jury to decide if it's believable.

I can't see a judgement on austlii in the time I can be bothered to spend
there, but I can see plenty where judges make my first point above in
their directions to the jury.

Remember that it is not the judge who will be making these decisions, but
a jury.

--
Dave Hughes | [email hidden]
"The problem with people whose minds are in the gutter is
that they keep blocking my periscope."

Dave said:

Blue Heeler said:

Indeed. But both yourself and the other gentleman who were making
wild assumptions and passing them off as legal fact might like to
do so for yourselves, http://www.austlii.edu.au beckons,

How about:"and the conduct is a reasonable response in the
circumstances as he or she perceives them.". The interpretation is
that if you think you're being assaulted you're probably OK provided
you take what the law would see as a "reasonable response".

You have managed to be pretty right up to here.

Quoted message said:

The use
of an illegal weapon, particularly if concealed, is not generally
going to be seen as reasonable.

Wrong.

Quoted message said:

You also appear to be equipped for a fight. That makes it much more
likely that a jury will believe you started a fight, rather than
acting in self defense. That's the line the opposition barrister will
take, and it's up to the jury to decide if it's believable.

What on earth makes you believe that the matter would EVER come before
a jury. Don't they have summary trials where you live? Said summary
trial by the way would be for the creature that attacked me. I might
face a later charge in respect of the possession of a weapon (assuming
of course that it is firstly found and that secondly its use can be
sheeted home to me).

How about you have a read of the legislation posted earlier. Whilst I
have no quarrel with you, your post is an excellent example of how
facts can be ignored in favour of fantasy/supposition and belief
without foundation.

Quoted message said:

I can't see a judgement on austlii in the time I can be bothered to
spend there, but I can see plenty where judges make my first point
above in their directions to the jury.

See above

Quoted message said:

Remember that it is not the judge who will be making these decisions,
but a jury.

Don't think so. Don't have a jury in Magistrate's courts where I live.

--

Blue Heeler said:

Wrong.

OK, how about para 63 in this case: ( http://preview.tinyurl.com/2xb3t3 ).
Now that's a shotgun used for murder, rather than capsicum spray, but it
shows a _judge_ ruling that possessing and carrying a weapon made it
unlikely that an act was done in self defence.

Quoted message said:

What on earth makes you believe that the matter would EVER come before
a jury. Don't they have summary trials where you live?

Oh yes, but that's in the District Court and austlii doesn't report them.
I've just shown you a judgement from the Supreme Court indicating that
prior possession of a weapon weakens a self defence claim. In the case of
the poster claiming to have an asp the likelihood of an accidental death
due to an (un)lucky blow is real. Even capsicum spray can cause death in
some cases (allergies, existing medical conditions). A Zefal might be less
effective, but you're going to have a much better chance of suggesting
that it was convenient and a reasonable response.

If you're happy to take the risk and think you'll get away with it, good
luck to you. But just be aware that there *is* a risk that your self
defence claim may be rejected. The other guy can claim the same thing
(maybe he tried to fend you off as you barreled into him on your bike?)

--
Dave Hughes | [email hidden]
There are some things so serious you have to laugh at them.
- Niels Bohr

Dave said:

Blue Heeler said:

Wrong.

OK, how about para 63 in this case: (
http://preview.tinyurl.com/2xb3t3 ). Now that's a shotgun used for
murder, rather than capsicum spray, but it shows a judge ruling that
possessing and carrying a weapon made it unlikely that an act was
done in self defence.

Yawn.....

The learned judge ruled that the particular accused, carrying that
particular weapon, in the circumstances of that particular case. There
is no blanket rule there at all.

I'm afraid you have wasted your time, because the case, interesting
though it is, is utterly and completely irrelevant to the issue that
has been discussed here.

Quoted message said:

Quoted message said:

What on earth makes you believe that the matter would EVER come
before a jury. Don't they have summary trials where you live?

Oh yes, but that's in the District Court and austlii doesn't report
them. I've just shown you a judgement from the Supreme Court
indicating that prior possession of a weapon weakens a self defence
claim.

Actually, the issue beign tested was provocation, an entirely different
matter.

Quoted message said:

In the case of the poster claiming to have an asp the
likelihood of an accidental death due to an (un)lucky blow is real.

I am currently assisting a chef who inflicted a minor cit on his hand
whilst chopping parsley. Three weeks later his hand was removed to save
the rest of his arm, and indeed his life, from teh gangrene infection
he caught from the parsley.

It is a vanishingly small possibility to catch gangrene from a nick
suffered whilst cutting herbs.

It is admittedly a little more likely that a carelessly handled asp may
inflict a fatal injury.

But, just as most chefs will continue to chop parsely without wearing
mesh gauntlets, I shall continue to take my chances that I will nto
actually kill, or inflict "grevious bodily harm" with an asp.

Quoted message said:

Even capsicum spray can cause death in some cases (allergies,
existing medical conditions). A Zefal might be less effective, but
you're going to have a much better chance of suggesting that it was
convenient and a reasonable response.

You don't get it do you? I will not have to "suggest" anything.

Quoted message said:

If you're happy to take the risk and think you'll get away with it,
good luck to you. But just be aware that there is a risk that your
self defence claim may be rejected. The other guy can claim the same
thing (maybe he tried to fend you off as you barreled into him on
your bike?)

Yep and the martians might land and cause the "trial" to be aborted
too...

Sorry, but it is difficult to treat the sort of nonsense being produced
as fact in this thread seriously.

--

IIt's hard to go past a good, mid-sized torch - solid maglite style one. Not too heavy, but used well can do some nasty damage. Temporarily disorient/blind attackers, as a club, to jab, poke, whatever. Plus it helps you see things in the dark!

But cfsmtb is true - best defensive weapon is fleeing (if you can). And when you're riding you've got the best defensive weapon there is. Just ask dutchy! 😄

quote='Terryc'slow verb said:

Here is one

http://www.kitbag.com.au/prod470.htm

Actually, I doubt if this is legal in NSW, unless you are a police officer.[/QUOTE]

Yep, it is illegal in NSW.....but as somebody else pointed out, there are any number of aerosol products readily available in your local supermarket which will cause any aggressor to stop and think long enough for you to make a getaway.

matagi said:

Yep, it is illegal in NSW.....but as somebody else pointed out, there are any number of aerosol products readily available in your local supermarket which will cause any aggressor to stop and think long enough for you to make a getaway.

Point of law - using a weapon in self defence is no defence if you could have run away without using the weapon. Also applies if you could have ridden away.

And don't even try to argue provocation as a defence in Australia.

SteveA

Blue Heeler said:

The learned judge ruled that the particular accused, carrying that
particular weapon, in the circumstances of that particular case. There
is no blanket rule there at all.

You asked for an instance of carrying a weapon weakening the self defence
argument. I supplied an example where a judge ruled that that argument
was completely invalidated, which is about as weak as you can get. Note
that I have never said that the argument won't hold, simply that it is
weakened.

Quoted message said:

Sorry, but it is difficult to treat the sort of nonsense being produced
as fact in this thread seriously.

At no stage did I say that these were likely scenarios, simply possible
ones. You are the one requesting absolutes, and blithely ignoring
everything I say.

--
Dave Hughes | [email hidden]
If you call blowing things up experiments, there were a lot of
chemistry experiments. -- Neal Stephenson

Dave said:

Blue Heeler said:

The learned judge ruled that the particular accused, carrying that
particular weapon, in the circumstances of that particular case.
There is no blanket rule there at all.

You asked for an instance of carrying a weapon weakening the self
defence argument. I supplied an example where a judge ruled that that
argument was completely invalidated, which is about as weak as you
can get. Note that I have never said that the argument won't hold,
simply that it is weakened.

Hello Dave, if you can make a flying visit to this planet, please
actually read the case.

The "self defence" issue was raised tangential to the main purpose of
the section of the hearing you have a hard on for, which was to dispose
of the "provaction" defence. The small facts you are wilfully ignoring
are :-

The accused purchased the shotgun for the express purpose of killing a
particular person.

The accused carried out the killing of that person according to his
preset plan.

The accused attempted to raise provication as a defence and mentioned
self defence more or less in passing.

It is of absolutely zero relevance to the matters being discussed here
and has no application generally to the defence of "self defence".

I mean, let's get real here, you buy a shottie for the express purpose
of killing someone, then actually do kill them. It's a little difficult
to then raise a defence of "self defence".

Quoted message said:

Quoted message said:

Sorry, but it is difficult to treat the sort of nonsense being
produced as fact in this thread seriously.

At no stage did I say that these were likely scenarios, simply
possible ones. You are the one requesting absolutes, and blithely
ignoring everything I say.

I'm not requesting "absolutes" I'm merely dealing with the legal
realities of situations.

You, and one or two others are responding with what you imagine to be
the applicable law, what you imagine would be the the process adopted
in a court would be and what you imagine a judicial officer might
direct or rule. Unfortunately, because you commence from the false
premise of not understanding the applicable law, everything after is
just word salad.

--