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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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In Tasmania, section 46 of the Criminal Code Act 1924 (Tas) provides that a ‘person is justified in using in defence of himself or another person such force as, in the circumstances as, he believes them to be, it is reasonable to use.’ Thus

Bradfield notes that the primary condition of self-defence in Tasmania is that:

1. the force used, in the circumstances as the accused believed them to be, must have been reasonable. 31 The test thus appears to be objective insofar as assessing whether the force applied was reasonable but subjective for determining the circumstances of the act which gave rise to the basis of the charge. It is also interesting to note that Tasmania is the only one of the states that makes no reference to a requirement that the accused believe that his/her conduct was necessary.

In the Northern Territory, section 28 of the Criminal Code Act 1983 (NT) is relevant. It provides specifically for lethal force to be used where ‘the nature of an attack is such as to cause the person using the force reasonable apprehension of death or grievous bodily harm.’ According to Bronitt and

McSherry the requirements of the defence are:

1. the accused reasonably apprehended death or grievous bodily injury; and the accused believed that such defensive conduct was necessary. 32 2.

Bradfield above n6 at 222. Also Bronitt and McSherry above n6 at 303. In Tasmania, there is no expressed requirement of necessity.

7.3 CONDITIONS RELATING TO THE ATTACK

7.3.1 Unlawfulness

According to Bronitt and McSherry, Victoria prescribes no requirement of ‘unlawfulness’. 33 This was confirmed in Zecevic v DPP (Vic) where the court noted that ‘[w]hilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so.’ 34 In the opinion of Bronitt and McSherry, however, self-defence against a lawful attack will only be upheld in exceptional circumstances. 35 In Queensland and Western Australia in establishing the requirements of selfdefence, the Codes - Section 271 of the Criminal Code Act 1899 (Qld) and section 248 of the Criminal Code Act 1913 (WA) - make specific reference to an ‘unlawful’ assault and this has become one of the qualifying conditions for the application of the sections. 36 In clarifying the element of ‘unlawful’ as used in the Griffith Code Brennan J in Zecevic v DPP (Vic) stated that ‘ “unlawful” is used in the self-defence provisions [of the Griffith Code] to describe the character of the force against which a person may defend himself, not to describe the force Bronitt and McSherry above n6 at 303. See also Bradfield above n6 at 224.

Bronitt and McSherry above n6 at 306.

Above n13 at 653. Brennan J, however, disagreed with the majority judgment on this issue. It was his view that ‘the defence of self-defence is not available when the force against which the accused defends himself is lawfully applied.’: at

667. In his judgment he expressly affirmed the view expressed by Gibbs J in Viro namely that ‘[i]t is obvious enough that a person cannot rely upon a plea of selfdefence unless the violence against which he sought to defend himself was unlawful.’: at 667. However, Brennan too noted a disfavour with the use of the term ‘unlawful’ and indicated a specific preference for the expression ‘unjustified’, stating that the concept of ‘unlawful’ may be confounded by legal technicality.: at 682.

Bronitt and McSherry above n6 at 306.

See above n8 at 231. In drafting the Criminal Code Act 1995 (Cth), the MCCOC followed the approach of Queensland and Western Australia.

Consequently, section 10.4(4) of the Criminal Code Act 1995 states that selfdefence will not apply if the accused is responding to lawful conduct and he or she knew that the conduct was lawful.

applied by a victim who is criminally responsible for applying it.’ 37 Stated otherwise, ‘unlawful’ in the Code provisions describes force which is ‘not authorized, justified or excused by any law whatever be the state of mind of the person who applies it.’ 38 In the Australian Capital Territory and Northern Territory Codes there is a clear statement that self-defence will not apply if the accused was responding to lawful conduct and he knew that the conduct was lawful. 39 In South Australia section 15(4) of the Criminal Law Consolidation Act 1935 (SA) also states clearly that where the accused resists a person attempting to exercise the power of arrest or who is acting in response to an unlawful act committed by the accused, self-defence will only be available if the accused is able to show that s/he believed on reasonable grounds that the other person was acting unlawfully. 40 In Fry the issue of self-defence against a lawful arrest was specifically brought into question. 41 In casu the accused raised a plea of selfdefence after stabbing a police officer who was attempting to make a lawful arrest. The trial court found that self-defence was not proved and found the accused guilty of murder. On appeal, the Court of Criminal Appeal, South

Australia dismissed the appeal and put the matter, especially with regard to selfdefence against a lawful arrest, to rest. White ACJ stated:





… lawful arrest, even accompanied by some violence, is one of those situations where self-defence could hardly be said to arise – except perhaps in extreme cases of violence. 42 However, following Victoria, Tasmania makes no specific requirement that selfdefence will only be available against an unlawful attack but Bronitt and McSherry Above n13 at 668.

Ibid.

Bronitt and McSherry above n6 at 306. See also sections 27(g) and 28(f) of the Criminal Code Act 1983 (NT).

Bronitt and McSherry above n6 at 306.

Fry (1992) 58 SASR 424.

Above n41 at 443.

note again that it will probably only be in rare situations that a lawful attack would provide reasonable grounds for self defence. 43 In Thomas the Criminal Court of Appeal in New South Wales followed the ruling of the court in Zecevic and accepted that in unusual cases, an accused might plead self-defence to a lawful arrest. 44 In Thomas, the victim arrived home to realise that his home had been burgled. The victim went out in search of the thief (who turned out to be the accused). Finding the thief, the victim attacked him, attempting to arrest him. A struggle ensued during which the accused stabbed the victim. The accused was convicted of assault and using an offensive weapon to resist lawful apprehension. The accused appealed on the basis that the selfdefence instruction given to the jury by the trial court regarding the lawful conduct of the victim was erroneous. The Court of Criminal Appeal allowed the appeal

and held:

If the impression conveyed by the directions at the time … was that no issue of self-defence could arise if the actions of the [victim] were lawful, then … a direction which conveyed such an impression was wrong. 45 Bronitt and McSherry above n6 at 306 and section 46 of the Criminal Code Act 1924 (Tas). In explaining their view, Bronitt and McSherry cite the example of a suspect who ‘defends’ himself against a police officer attempting to effect a lawful arrest. According to the authors, self-defence will not be available under such circumstances (except possibly in cases of extreme violence by the law enforcement agent).: Bronitt and McSherry above n6 at 306. In the Report of the Law Reform Committee of the Northern Territory Self Defence and Provocation October 2000 at http://www.nt.gov.au/justice/policycoord/documents/lawmake/Self%20Defence.p df [accessed on 7 December 2008] the authors note that the test for self defence in Northern Territory ‘removes the … requirement that the response of the accused be to an unlawful arrack; …’: at 8.

Thomas (1992) 65 A Crim R 269 (NSW CCA).

Above n43 at 273.

7.3.2 Imminence 7.3.2.1 Victoria In Victoria, the legal rule with regard to the required temporal proximity between

the actus reus and mens rea was defined by Lowe J in McKay as follows:

Reasonable self-defence is not limited to cases in which the life of the person committing homicide is endangered or grave injury to his person is threatened. It is also available where there is a reasonable apprehension of such danger or grave injury. There is such a reasonable apprehension if the person believes on reasonable grounds that such danger exists. 46 In Zecevic v DPP (Vic) the court held that self-defence is applicable when there is a physical attack on the accused and also in circumstances where the accused perceived that there was a danger that an attack would occur. All that is required is that the accused believed on reasonable grounds that she was being threatened or attacked. 47 Thus, the requirement of temporal proximity between the attack and the defence in the law of self-defence is satisfied if (i) the attack is McKay [1957] VR 560 at 562-3. In Lane [1983] 2 VR 449 (an interesting judgment that has analogous application in cases of battered women) the facts were as follows: the accused, a homosexual, had picked up the deceased in a bar and they had returned to the home of the accused.

The accused testified that shortly thereafter, the deceased became belligerent, started smashing items of furniture in the house and threatened the accused. The accused retaliated and hit the deceased with a champagne bottle and continued assaulting him even after he was immobilised.: at 453-4 and 460. In advising the jury on the appropriateness of a self-defence finding, the Supreme Court of Victoria noted that there appeared evidence that the accused was terrorised by the deceased, who was a younger and stronger man. There was also evidence of the problems ‘associated with the public disclosure of the presence of the naked deceased in his raving condition and in the applicant’s own home’ that prevented the accused from calling for help.: at 455. More importantly, the court recognised that the accused could easily have retreated from the fracas.

However, it held that retreat was not an element of immunity. According to the court, a person in his own home, placed in constant danger of serious bodily threat, is entitled to take pre-emptive action, anticipating renewal of the attack by the intruder.: at 456. The evidence of the accused clearly indicated that, at the time of the killing he had not been the victim of physical assault but he testified, ‘I couldn’t work him out – he kept saying sorry and then smashing more things – well, I wasn’t going to be the next victim. Bad enough having all my furniture smashed to pieces.’: at

453. Considering the circumstances of the battered woman against the facts and decision in Lane, the writer submits that she has far more at stake when she defends herself against her abuser within the confines of her home.

Above n13 at 651-2 (per Mason J), 657-9 (per Wilson, Dawson, and Toohey JJ), 672 (per Deane J) and 683 (per Gaudron J).

underway; (ii) there is a threat of danger; and/or (iii) the accused had a reasonable apprehension of harm. The court in Zecevic v DPP (Vic) showed express signs of abandoning the traditional requirements of imminence in favour of a simpler assessment of whether the accused believed that ‘it was necessary to do in self-defence what he did.’ 48 In expressly describing the law on the

subject, Wilson, Dawson and Toohey JJ stated:

… a person who kills with the intention of killing … can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death … If the response of an accused beyond what he reasonably believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. 49 Similarly, in Osland (a case which dealt with intimate partner homicide) Kirby J noted specifically that self-defence may still be applicable in a case involving a battered woman who kills an abusive partner even though no actual attack by the deceased is underway at the time. The court recognised, however, that the justification for the accused’s conduct – specifically that there was a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike – must be established by the evidence and, if successful, would result in the acquittal of the accused. 50 Thus, it would appear that the court acknowledged that whilst there may be no overt evidence of a proximate attack, the threat and fear from the prior conduct of the victim remains on foot and may justify a response in self-defence. In each case, the courts will consider the particular facts of the case in reaching its decision.

Above n13 at 666 per Brennan J.

Above n13 at 662.

Osland (1998) 159 ALR 170 at 185 and 220 (HC) per Gaudron and Gummow JJ and Kirby J respectively.

7.3.2.2 Australian Capital Territory, Northern Territory, New South Wales, South Australia and Tasmania In the Australian Capital Territory, the Northern Territory, New South Wales, South Australia and Tasmania there is no requirement that the attack must have commenced. 51 In Barton v Armstrong the plaintiff alleged an assault after being threatened over the telephone. 52 The evidence indicated that the defendant was a person in authority over the plaintiff and that the plaintiff had a general fear of the defendant. Thus, when the defendant telephoned the plaintiff and threatened him with serious violence, the plaintiff feared the threat. 53 In dealing with the question of whether the conduct of the defendant constituted an assault, Taylor J held that threats uttered over a telephone in such circumstances could not be ‘properly categorised as mere words’. 54 The court found that the words and the circumstances could put a reasonable person in fear of later physical violence and that this could constitute an assault ‘although the victim does not know exactly when that physical violence may be applied.’ 55 Explaining further he

noted:



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