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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 ...»

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referring to DPP Reference (No 1 of 1991) – that in practice, the law of ‘selfdefence in Australia is open in its formulation in the sense that there are not many substantive rules limiting its scope.’ 11 They conclude that self-defence is a matter of fact which is generally left to the jury to decide. 12 Australian jurists have also entered the at times academic debate on whether self-defence should be a defence of excuse or justification. In distinguishing between the rules of justifiable and excusable homicide in Australia, Wilson, Dawson and Toohey JJ noted in Zecevic v DPP (Vic) that the fundamental distinction between the two defences is in the consequences – justifiable homicide carried the sanction of commendation rather than blame and entitled the accused to a complete acquittal ‘entailing no forfeiture of goods and requiring no pardon.’ 13 Excuses on the other hand were said to focus on the actor’s state of mind and the effect of a successful plea involved both a pardon and the forfeiture of goods. 14 In discussing the distinction, Snelling notes (referring to Foster – without citing the source) that excusable homicide was not entirely without blame and the accused may be regarded as being ‘in some measure blameable’ and thus the killing is merely excused rather than acquitted. 15 In further explaining the excuse defence, Dixon notes that it was concerned not with the execution of justice, but simply with a necessary and reasonable response to a threat to life and limb. 16 In 1828, the principle of forfeiture was abolished and Bronitt and McSherry express the opinion that this then rendered the distinction between excuse and justification obsolete. 17 In Zecevic v DPP (Vic) Wilson, Bronitt and McSherry above n6 at 301. See also DPP Reference (No 1 of 1991) (1992) 60 A Crim R 43 at 46.

Bronitt and McSherry above n6 at 301.

Zecevic v DPP (Vic) (1987) 162 CLR 645 at 657-8; and see also Bronitt and McSherry above n6 at 299.

Above n13 at 658.

HA Snelling ‘Killing in Self-Defence’ 1960 34 Australian Law Journal 130, at 133; see also O Dixon ‘The Development of the Law of Homicide’ 1935 9 Australian Law Journal 64.

Dixon above n15 at 65-6.

Bronitt and McSherry above n6 at 299. Acknowledging the comment of Bronitt and McSherry and noting the preceding discussion, it would appear that the difference between excuse and justification lay in the nature of the punishment that attached to the defence. This is contrary to the position in South Africa where the distinction between a defence of justification and one of excuse lies in the fact that the former focuses particularly on aspects of the case that exclude the unlawfulness of the act whilst the latter focuses on excluding the element of intention.

Dawson and Toohey JJ also indicate a blurring of the boundaries between

justification and excuse stating:

True it is that in result a successful plea of self-defence resembles justification rather than excuse because it entitles the accused to a full acquittal, but in scope and in practice nowadays the plea has a greater connection with excusable homicide, being in the most cases related to the preservation of life and limb rather than the execution of justice.’ 18 The conflation of excuse and justification is evident in the written judgment of Brennan J who states at one point that ‘When the defence of self-defence is available to an accused, it justifies or excuses the … act which is alleged to have caused the death.’19

–  –  –

The common law rules of self-defence, still apposite in Victoria, were clearly set

out in the leading case of Zecevic v DPP (Vic). 21 In describing the law of selfdefence, Wilson, Dawson and Toohey JJ set out the requirements as follows:

It is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. 22 Above n13 at 658.

Above n13 at 666.

Bradfield notes that the traditional position required that the threat of harm be immediate or, at least, imminent when the accused the defensive action: however, she emphasises that imminence is no longer a formal requirement of self-defence.: Bradfield above n6 at 206.

Above n13.

Above n13 at 661. This expression of the law was accepted by all four of the other judges, as well. See the judgments Mason CJ at 654, Brennan J at 666, Deane J at 681, and Gaudron J at

685. Thus, the six-stage test for self-defence previously set out in Viro (1978) 141 CLR 88 was expressly set aside as being unworkable in practice.: above n13 at 653. For completeness, the Viro test is set out hereafter. The court in Viro held: Where threat of death or grievous bodily harm to the accused is in question and the issue of self-defence arises, the task of the jury must be stated as


Extrapolating from the court’s ruling, the requirements for self-defence under the

common law may be said to be:

1. a belief that it was necessary to act in self-defence; and there must have been a reasonable basis for such a belief. 23 2.

The test is an amalgamation of subjective and objective elements in that it requires that the accused’s belief be tested by reference to reasonable grounds. 24 They are further quick to note that ‘[t]here is, however, no requirement that the accused’s belief be tested against that of an ordinary person; the question is what the accused might reasonably have believed in all the circumstances.’ 25 It is further appropriate to note that in outlining the requirements of the test for self-defence, Zecevic v DPP (Vic) also made it clear that unlawfulness of the attack, proportionality between attack and defence, and an obligation to retreat before taking defensive action are no longer explicit elements of the defence. 26 1.(a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily injury was being or about to be made upon him.

(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.

2. If the jury is satisfied beyond reasonable doubt that there was no reasonable belief by the accused of such an attack no question of self-defence arises.

3. If the jury is not satisfied beyond reasonable doubt that there was no such reasonable belief by the accused, it must then consider whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.

4. If the jury is not satisfied beyond reasonable doubt that more force was used than was reasonably proportionate it should acquit.

5. If the jury is satisfied beyond reasonable doubt that more force was used, then its verdict should be either manslaughter or murder, that depending upon the answer to the final question for the jury – did the accused believe that the force which he used was reasonably proportionate to the danger which he believed he faced?

6. If the jury is satisfied beyond reasonable doubt that the accused did not have such a belief the verdict will be murder. If it is not satisfied beyond reasonable doubt that the accused did not have that belief the verdict will be manslaughter.: at 88.

Bronitt and McSherry above n6 at 302.

Bradfield above n6 at 199; Bronnit and McSherry above n6 at 301. See also above n13 at 673, and the Queensland Government Taskforce Report on Women and the Criminal Code: Defences to Violence Chapter 6 www.qld.gov.au/resources/criminal-code/documents/chapter-6.pdf 5 and 9 [accessed on 16 June 2009].

Bronitt and McSherry above n6 at 301.

Above n13 at 663-4. With specific reference to the requirement of proportionality, Zecevic expressly rejected this requirement, overturning the In all the other Australian jurisdictions, a slightly different wording to the Zecevic test is applied but the majority of the states refer to the requirements of necessity and reasonableness.

In New South Wales and the Australian Capital Territory sections 418 of the Crimes Act 1900 (NSW) and 42 of the Criminal Code 2002 (ACT) respectively both require that:

1. the accused must have had a belief that the conduct was necessary; and

2. the conduct was a reasonable response in the circumstances as the accused perceived them. 27 In Queensland and Western Australia the use of force by a person acting in self-defence is set out in sections 271 and 272 of the Criminal Code Act 1899 (Qld) and sections 248 and 249 of the Criminal Code Act 1913 (WA). These two Codes make a specific distinction between self-defence relating to a provoked attack and self-defence relating to an unprovoked attack and also the use of statement on self-defence set out in Viro (which required that in assessing the efficacy of a plea of self-defence the jury must consider inter alia ‘whether the force in fact used by the accused was reasonably proportionate to the danger which he believed he faced.’): above n22 at 147. In firmly abolishing the proportionality requirement in the law of self-defence, the court in Zecevic’s case stated unequivocally that ‘the use of excessive force in the belief that it was necessary in self-defence will not automatically [negate self-defence. Only i]f the jury concludes that there were no reasonable grounds for a belief that the degree of force was necessary, the defence of self-defence will fail ….’: above n13 at

654. In attempting to ensure that the issue of proportional force was not completely forgotten, the court in Zecevic, however, noted that it would in many cases ‘be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered.’: above n13 at 653. (The writer is of the opinion, however, that such a jury instruction on its own could lead to confusion that proportionality was a definitional requirement of the defence and that this is not the legal position also needs to be made clear to the jury.) Again one notes that proportionality is not a requirement of the defence. Thus, in Lean and Aland (1993) 66 A Crim R 296, in response to a jury instruction by the trial judge that the proportionality between the defence and attack had to be considered as a separate requirement, the New South Wales Court of Criminal Appeal held firmly that the court a quo had erred.: at 296.

The Appeal Court confirmed that ‘there is no rule of law that the use of excessive force necessarily establishes that the accused did not act in self-defence.’: at 298. In dealing with proportionality, however, it may be reasonably concluded that it will always be one of the factors when considering necessity and/or reasonableness of the force used.

lethal and non-lethal force in self-defence. 28 For purposes of this study, the discussion will be limited to self-defence in cases of an unprovoked assault where the accused has used lethal force to defend herself. Accordingly, sections 271(2) of the Code (Qld) and 248 of the Code (WA) are apposite.

Section 271 (2): Self-defence against unprovoked assault, reads as follows:

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using the 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. 29

The same provision is contained in section 248 of the Code (WA).

Thus, in applying the section, the courts of Queensland and Western Australia

must consider whether the accused had:

1. a reasonable apprehension of death or grievous bodily harm; and

2. a belief based on reasonable grounds that the force used is necessary for defence, even though such force may cause death or grievous bodily harm.

Bronitt and McSherry note that the test is subjective for assessing the fear of the accused but objective insofar as determining whether or not the force used by the accused was reasonably necessary. 30 Sections 271 and 248 apply to self-defence against an unprovoked assault; whilst sections 272 and 249 cover the situation of self-defence where there has been a provoked attack. Above n8 at 230 and Bronitt and McSherry above n6 at 302.

Section 248 Criminal Code (WA) 1913 is not materially different from the provisions in section 271 Criminal Code (Qld) 1899. The Queensland Government Taskforce Report, however, notes that whilst section 271 does not make any reference to the requirement of immediacy, the courts often read it into the Code provision when determining whether the force used was reasonably necessary. The Taskforce acknowledged that this is an unfortunate interpretation of the law and should be avoided by the courts.: above n24 at 13-14. It specifically noted that self-defence and pre-emptive strikes are not mutually exclusive.: at 4.

Bronitt and McSherry above n6 at 308.

In South Australia, section 15(1) of the Criminal Law Consolidation Act (SA) 1935 as amended by the Criminal Law Consolidation (Self-Defence) Amendment Act 1997 permits the use of force if the person ‘believes that the force is necessary and reasonable for self-defence and conduct was reasonably proportionate to the threat that the accused genuinely believed to exist.’ The

requirements of the defence, thus, are:

1. a belief that the force was necessary and reasonable for self-defence; and

2. the defence was reasonably proportionate to the attack.

South Australia is the only state in Australia which has expressly reintroduced the requirement of proportionality as a condition of self-defence.

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