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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

-- [ Page 38 ] --

As noted from the discussion, it would appear that the law of self-defence in Canada has evolved into a simple test. It is a progressive blend of subjective evaluations and objective assessments with sufficient flexibility to ensure that justice is done. Thus, in understanding the conceptual paradigm of an accused, the courts have recognised both present circumstances and past history insofar as it is relevant to the conduct with which the accused is charged. Evidence of past beatings and threats as well as the accused’s knowledge of the attacker’s Above n17 at 103.

In Malott the admissibility of the expert opinion of Dr Jaffe was not challenged by the prosecution and therefore was not an issue.: Malott above n11 at 133.

This approach may be attributable to the fact that battered woman syndrome has been

specifically acknowledged as a psychiatric condition and is so reflected in the DSM-IV Manual.:

Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, Washington: 1994) 393.

Lyons (1987), 37 C.C.C. (3d) 1 at 48 (S.C.C.).

D Downs More Than Victims: Battered Women: The Syndrome Society and the Law (University of Chicago Press, Chicago: 1998) 131.

Above n109 626.

propensity for violence have all been held to be relevant in gauging the reasonableness of the defender’s beliefs and her response to the attacker. 159 The Canadian law has also established that there is no requirement of a de facto assault before the defender’s response can be justified as self-defence. Rather, the requirement is that the defender must have had an apprehension (based on reasonable grounds) of an unlawful assault that could result in death or grievous bodily harm. 160 A further constructive note of progress in the law is the intention not to arrogate to the definitional requirements of self-defence the elements of imminence and proportionality. With specific reference to imminence, no such reference is contained in the law but the legal writers blame the case law for reading such a condition into the law. However, in Lavallee Wilson J sought to settle the law of self-defence vis-à-vis imminence stating explicitly, especially with regard to battered women before the law, that the traditional rules of imminence did not permit the courts to properly contextualise the enquiry. To seek to impose such a requirement would be inherently unfair. 161 With regard to the requirement of proportionality between the defensive response and the attack, it appears wellsettled that proportionality is one of the elements for consideration when assessing the necessity of the force used in defence – it is not a defining requirement of self-defence. It is clear that the test under Canadian law is not the reasonableness of the force used but rather the reasonableness of the belief that force was necessary in the circumstances.

Interesting about the interpretation of section 34 (2)(b) especially with regard to the ‘apprehension’ or ‘belief’ of the accused is that it creates a space for ‘mistake’ under the law of self-defence. 162 In South Africa, for instance, a reasonable mistake would rather be considered under the condition of culpability and the accused’s state of mind. It would, accordingly constitute an excuse of the alleged criminal act and not a justification. 163 However, under the Canadian law, a Above n2 at 3-5.

Above n2 at 4.

Above n17.

Above n16 at 7-8.

Under the South African law, a defence allied to self-defence (though not to be confused with self-defence) is putative (or supposed) self-defence. It applies where the defender genuinely believes that a defence excluding unlawfulness exists (but it does not) or the defender honestly mistaken apprehension or belief that is reasonable will be properly addressed under self-defence.

Especially positive about the law of self-defence as it has developed, is that whilst a reference has been made to battered woman syndrome, there is an implicit understanding that the law will not create categories of victims by imposing labels. 164 Also, and in keeping with this approach, it is clear from Lavallee and Malott that the law has shown no intention to establish battered woman syndrome as a separate defence. In Lavallee Wilson J emphasised that ‘[t]he focus is not on who the woman is, but on what she did.’ 165 In Malott L’Heureux-Dube J stated unequivocally that ‘battered woman syndrome is not a legal defence in itself such that an accused woman need only establish that she is suffering from the syndrome in order to gain an acquittal.’ 166 thinks that she is entitled to use such force as she did (but she is not), then the defender is said to lack fault in the form of intention.: J Burchell and J Milton Principles of Criminal Law (Juta, Kenwyn: 1999) 346. This genuine mistake by the defender regarding the existence of a defence negatives fault in the form of intention on the part of the accused and may serve to excuse the conduct of the accused.: at 346-7.

Above n17 at 126. See specifically the cited comment of the trial judge. According to Tang the Canadian courts have been clear that battered woman syndrome is not a legal defence in itself ‘but rather it is a psychiatric explanation of the mental state of an abused woman that can be relevant to understanding a battered woman’s state of mind.’: above n109 at 619. This approach was confirmed in the Canadian Self-Defence Review submitted to the Minister of Justice and Solicitor General of Canada.: above n22 at 5.





Above n17 at 126.

Malott above n11 at 140. Interestingly, in the Australian case of Osland (1998) 159 ALR 170 (HC) Callinan J interpreted the Canadian law otherwise.

He noted:

The reasons of Major J [in Malott], which followed earlier considerations of the “battered woman syndrome” in the Supreme Court of Canada in Lavallee v R, show that his Lordship and the courts in Canada may regard “battered woman syndrome” as a separate defence.: at 242.

In support of his contention, the judge cites the following passage from the judgment of Major J:

The admissibility of expert evidence respecting battered woman syndrome was not at issue in the present case. The admissibility of the expert evidence … on battered woman syndrome was not challenged. However, once the defence is raised, the jury ought to be made aware of the principles of that defence as dictated by Lavallee. In particular, the jury should be informed of how that evidence may be of use in understanding the

following:

1. Why an abused woman might remain in an abusive relationship. … 2. The nature and the extent of the violence that may exist in a battering relationship. In considering the defence of self-defence as it applies to an accused who had killed her violent partner, the jury should be instructed on the violence that existed in the relationship and its impact on the accused. … 3. The accused’s ability to perceive danger from her abuser. Section 34(2)(a) [of the Criminal Code] provides that an accused who intentionally causes death or grievous bodily harm in repelling an assault is justified if he or she does so “under reasonable apprehension of death or grievous bodily harm”. …

4. Whether the accused believed on reasonable grounds that she could not otherwise preserve herself from death or grievous bodily harm.: at 242.

Having read the Canadian judgments and paid attention to the section cited by Callinan J in Osland the writer remains convinced that the Canadian courts did not intend to introduce an autonomous defence called battered woman syndrome. It is clear from the dicta of both courts, read as a whole, that they only intended to use the information on battered woman syndrome to assess the conduct of the accused under the defence of self-defence. It is submitted that what appears to be a reference to a separate defence is possibly the result of imprecise language by the judge in Malott’s case.

PART TWO: SELF-DEFENCE

CHAPTER SEVEN

THE LAW OF SELF-DEFENCE IN AUSTRALIA

7.1 INTRODUCTION In describing the origins of Australian criminal law, Waller and Williams state that ‘it is generally accepted that the early settlers in Australia brought the common law with them and the English law of that period thus formed the basis of criminal law in the various states.’ 1 However, over the years the law evolved with each state and territory making changes and legislating for itself. During the 1990’s, Australian jurists, dissatisfied with the idea of a divided set of criminal laws, sought to bring about greater harmonisation between the laws of the different states. As Goode points out, the law of Australia should be ‘systematic and comprehensive, offering the prospect of a criminal law that is easy to discover [and] easy to understand...’ 2 Thus, in 1990, the Standing Committee of Attorneys-General established the Model Criminal Code Officers Committee (MCCOC) to draft a model uniform criminal Code that would be accepted in all states and territories. The Committee finalised its recommendations on a harmonised set of principles of criminal responsibility, which were codified as part of the federal law in the Criminal Code Act 1995 (Cth) of Australia. 3 As a result, L Waller and CR Williams Brett, Waller and Williams CRIMINAL LAW Text and Cases (Butterworths, Sydney: 1993) 5.

M Goode ‘Codification of the Australian Criminal Law’ 1992 16 Criminal Law Journal 5, at 8.

Only the sections of the Commonwealth Criminal Code Act 1995 on self-defence relevant to this

study are cited below:

Section 10.4 (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if he or she believes the

conduct is necessary:

(a) to defend himself or herself or another person; or … (e) …;

and the conduct is a reasonable response to the circumstances as he or she perceives them.

(3) … (4) … the current position is that self-defence in all Australian jurisdictions is now regulated by statute, specifically the Model Criminal Code, 1998. 4 However, states still have their respective sovereignty with regard to the promulgation of domestic laws and not all the states and territories have implemented the provisions of the Model Criminal Code into their respective laws. 5 Thus, as Bradfield notes, the definition of and approach to self-defence still varies across the various Australian jurisdictions. 6 The law of self-defence across the states and territories of Australia is contained in the following legislation. In Victoria and the Australian Capital Territory (ACT), self-defence is regulated by the Crimes Act 1958 (Vic) and the Criminal Code 2002 (ACT) respectively. In New South Wales the law of self-defence is contained in the Crimes Act 1900 (NSW) and in South Australia it is in the Criminal Law Consolidation Act 1935 (SA). 7 In Queensland, a separate criminal Code – Criminal Code Act 1899 (Qld) - was enacted. 8 This Code was adopted by Western Australia in 1902 but repealed and then re-enacted in 1913 as the Criminal Code Act 1913 (WA). 9 In 1924 Tasmania adopted a modified version of this Code – Criminal Code Act 1924 (Tas) - and in 1983, the Code was adopted also with modifications by the Northern Territory as the Criminal Code Act 1983 (NT). 10 However, an analysis of the comparative jurisdictions reveals that even though not all states have specifically adopted the Model Criminal Code, 1998 there are definite fundamental principles common to all the states which will become clear in the following discussion. Further, Bronitt and McSherry note – See also D Brown, D Farrier, S Egger and L McNamara Materials and Commentary on Criminal Law and Process of New South Wales (The Federation Press, New South Wales: 2001) 736.

J Yule ‘Current Issues with Regards the Defences of Provocation and Self-Defence in the Criminal Law Context’ 2007 in Proceedings: Australasian Law Teachers Association 1, at 14.

See also the Victorian Law Reform Commission, Defences to Homicide: Final Report October 2004 at 63.

See Brown et al above n3 at 33.

RJ Bradfield ‘The “Frightened Woman” – The Defence of Self Defence and Homicide’ eprints.utas.edu.au/10457/Bradfield_ch6.pdf 199 [accessed on 16 June 2009]. See also S Bronitt and B McSherry Principles of Criminal Law (Lawbook Co., New South Wales: 2005) 300.

Above n1 at 5-6.

It is often called the Griffith Code after its primary author and came into effect in 1901.: above n1 at 6; Bronitt and McSherry above n6 at 70; RG Kenny Criminal Law in Queensland and Western Australia (Butterworths, Sydney: 2000) 1 and 5.

Above n1 at 6. See also Bronitt and McSherry above n6 at 70.

Above n1 at 6; above Bronitt and McSherry n6 at 70; S Gray Criminal Laws Northern Territory (The Federation Press, New South Wales: 2004) 9.



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