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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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Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear of apprehension, but not the only way. 56 Continuing, Taylor J held that in deciding whether or not there was an assault, the court would have to consider the circumstances and, most materially, the Bronitt and McSherry above n6 at 305.

Barton v Armstrong [1969] 2 NSWR 451.


Above n52 at 455.



effect on the victim’s mind of the words or action – and not whether the defendant actually had the intention or means to follow it up. 57 In Zanker v Vartzokas the facts were that the accused had accepted a lift, and then demanded sexual favours from her. 58 When the complainant refused, the accused had refused to allow her to leave the vehicle and threatened, ‘I am going to take you to my mate’s house. He will really fix you up.’ 59 White J noted, ‘The threat in the circumstances put her in such fear that she opened the door and leapt out on to the roadside.’ 60

At the trial a quo the magistrate said:

–  –  –

Based on the fact that the threat of harm was not immediate, the magistrate thus dismissed the complaint. 62 On appeal, White J acknowledged that in cases of assault ‘[g]enerally speaking, the authorities refer to the immediacy or imminence of the feared physical violence.’ 63 However, referring to Barton v Armstrong he held that in this case too, the complainant reasonably believed ‘in the defendant’s intention and power to inflict violence in due course with the help of his “mate”.’ 64

In finding that there was an assault on the complainant, White J held:


Zanker v Vartzokas (1988) 34 A Crim R 11, at 11. From the facts of the case, it is clear that the complainant and the accused were strangers.: at 11.

Above n58 at 12.





Above n58 at 17.

… her fear was a continuing fear induced by his original words in a situation where he remained in a position of dominance and in a position to carry out the threatened violence at some time not too remote, thus keeping the apprehension, the gist of assault, ever present in the victim’s mind. 65 Referring to Zanker v Vartzokis Leader-Elliot notes that whilst the court referred back to the condition of imminence, it appeared to take the view that ‘relative to an assault, conduct would satisfy the old element of imminence if it were established that the attack, set to occur at some uncertain time in the future, was inevitable, to the extent that the victim had no reasonable means of preventing it from occurring. 66 Interestingly, the standard of ‘inevitability’ was again raised by the Victoria Law Commission, 67 and by Yule who notes that such an amendment of the law would best accommodate the lived experience of victims of domestic violence. 68 In Tassone (unreported) the accused shot her sleeping husband after he had assaulted and raped her. The evidence was that he was a violent man and that this was not an isolated incident of abuse. The accused testified that she was terrified of the extreme and unpredictable violence of her husband, that she had tried (unsuccessfully) to leave him on a number of occasions, and that she believed that she would never be able to get away from him. She testified further that the rape had ‘upped the ante’ in the sense that it demonstrated a new level of violence towards her. In his instruction to the jury, however, the judge demonstrated a clear bias in favour of the view that a sleeping aggressor could not present a ‘threatened assault’ against which a woman could be defending herself. In his instruction, he stated, ‘[This case] will be very likely to be beyond the outer limit [of self-defence], but I say my inclination is to leave it to the jury.’ 69 Above n 58 at 18.

I Leader-Elliot ‘Battered But Not Beaten: Women Who Kill in Self-Defence’ 1993 15 Sydney Law Review 403, at 453.

Victoria Law Reform Commission: Defences to Homicide: Final Report above n4 at 59.

Yule above n4 at 18.

J Stubbs and J Tolmie ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ 1999 23 Melbourne The jury, however, found that even though her husband had not verbally threatened her before he fell asleep, the general and ongoing threat that he presented to her, demonstrated by his past behaviour, was sufficient to justify a finding that she had acted in self-defence. 70 In supporting the decision in Tassone the Queensland Government Taskforce Report emphasised that the acquittal was justified ‘on the basis of the on-going threat represented by the constant abuse.’71 In Secretary the Supreme Court of the Northern Territory was clear that there was no specific requirement of ‘imminence’ (or a ‘temporal connection’, per Mildred J) in the law. 72 Thus, the court in Secretary found that even a pre-emptive strike would satisfy the criteria for self-defence were it found that ‘the accused believed on reasonable grounds that it was necessary to so act.’73 Queensland and Western Australia

In Queensland and Western Australia the Codes refer specifically to ‘defence against an assault’. 74 However, a complete reading of the Criminal Code Act 1899 (Qld) and Criminal Code Act 1913 (WA) makes it clear that the reference to ‘assault’ also includes threats of violence. 75 Thus, in Keith the Queensland Court of Appeal acknowledged that antecedent threats could give rise to a circumstance of self-defence; however, the court emphasised that the threats must have been made within a reasonable time of University Law Review 708, at 734 referring to the unreported decision of Tassone Supreme Court of the Northern Territory, 20 April 1994.


Above n24 at 3. The Taskforce commented that in assessing the question of reasonableness, especially in the so-called non-confrontation cases, a truer position of the law would be to regard the battered woman as defending herself ‘against the cumulative effect of the last assault, plus the numerous previous assaults by the batterer.’: at 4.

Secretary (1996) 107 NTR 1 at 7. In casu the accused shot and killed her sleeping aggressor after he fell asleep after terrorising her, assaulting her, and threatening her with further harm when he awoke.

Above n72 at 10-11.

Section 248 Criminal Code (WA) 1913 is not materially different from the provisions in section 271 Criminal Code (Qld) 1899.

See Criminal Code (Qld) ss 245, 271, and 272, Criminal Code (WA) ss 222, 248 and 249. See also above n22 at 146; and Morgan v Colman (1981) 27 SASR 334 at 337.

the defensive action. 76 In casu it was held that the trial judge had been correct in refusing to accept evidence of death threats against the accused made by the deceased three years previously and then repeated about eight months before the accused shot his victim allegedly in self-defence. 77

In Phillips, Barwick CJ confirmed:

[An assault in the common law sense of the word] necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted …. 78 More recently, Stjernqvist (unreported) makes a very important statement particularly in cases involving intimate partner homicide. In casu the jury acquitted an accused on the basis of self-defence when she shot her husband in the back as he walked away from her. In instructing the jury, the trial judge made it clear that the assault against which the accused was mounting the defence was to be found in the general nature of the relationship and particularly in the threats the deceased had made to the accused over a period of years, rather than in any specific action he had taken on the day in question. 79 The Supreme Court of Western Australia applied a similar interpretation to the condition of imminence and in Beckford noted that where an attack was imminent (but not yet commenced), the accused would certainly have been justified in taking pre-emptive action. 80 Keith [1934] St. R. Qd 155 discussed in Gray above n10 at 128.


Phillips (1971) 45 ALJR 467, at 472.

Above n69, at 735 referring to the unreported decision of Stjernqvist Cairns Circuit Court, 18 June 1996.

Beckford [1987] 3 WLR 611 at 619. See also Conlon (1993) 69 A Crim R 92 which confirmed this approach.


7.4.1 The Accused’s Belief and Defensive Action Victoria In Zecevic v DPP (Vic) the court established the requirement that the accused must have had a belief based on reasonable grounds that the force applied was necessary. 81 In explaining the condition, Tolmie notes that two features of evidence are vital. Firstly, she refers to the ‘nature of the threat’ faced by the accused at the time of acting and points out that this would involve an assessment of the violence threatened by the deceased at the relevant time, as interpreted in the context of the aggressor’s past violent behaviour towards the accused. Secondly, Tolmies stresses the importance of the evaluation whether the accused had alternative courses of action available to her to deal with the threat. 82 In amplification she states that ‘[c]learly if she [the accused] was able to perceive realistic alternatives to lethal self-help then her actions were not “necessary” to defend herself.’ 83 In interpreting the rule of necessity, Bronitt and McSherry maintain that the force used in relation to the threat or attack must be reasonably necessary (as opposed to a minimum necessary response). 84 They comment that this was also the intention of the court in Zecevic wherein, although the court did not expressly state any preferred rule with regard to the element of necessity, the court did

endorse the legal principle established in Palmer namely that:

It is both good law and good sense that [the accused] may do, but may only do, what is reasonably necessary. … [However,] if there has been an attack so that defence is reasonably necessary it will be recognised Above n13 at 654, 661, 666, 681, and 683.

J Tolmie ‘Pacific-Asian Immigrant and Refugee Women Who Kill their Batterers: Telling Stories that Illustrate the Significance of Specificity’ 1997 19 Sydney Law Review 472, at 477.


Bronitt and McSherry above n6 at 308; and Bradfield above n6 at 202.

that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. 85 Summarising the legal position, it is submitted that in dealing with this condition the courts are required to determine firstly, what the accused believed was necessary (this is a subjective assessment); and secondly, whether there were reasonable grounds to warrant such a belief (this will be an objective assessment).

In considering a further specimen of personal circumstances to which the courts will have regard, the court in Wills acknowledged that ‘all physical features of the situation and of the action of the accused man involved’ should be given consideration; 86 whilst in Hector the court recognised a somewhat narrower rule namely that the nature of the relationship between the parties (which was alleged to have been violent) as being of relevance. 87 In support of these decisions, Findlay notes that personal circumstances such as ‘ongoing victimisation through violence’ are always relevant and may influence both the subjective and objective evaluations. 88 In Osland’s case the facts were as follows: the accused and her son were charged with the murder of her husband (and the boy’s step-father). 89 The evidence of the accused and her son was that during the many years that they had lived with the deceased, he had been a tyrannical and violent man. The evidence of the appellant was that the accused’s violence and her fear of it continued up until the day he died. 90 The facts were that the accused and her son worked out a plan to murder the deceased and get rid of his body. They dug a hole in the garden and during the evening meal, the accused mixed sedatives into the deceased’s dinner. When the sedatives took effect and the deceased retired to sleep, the son hit him over the head with an iron pipe in the presence of Palmer [1971] AC 814 at 831-2. See also above n13 at 654 (per Mason CJ) and at 661 and 665 (per Wilson, Dawson and Toohey JJ.

Wills [1983] 2 VR 201 at 212.

Hector [1953] VLR 543 at 544.

M Findlay Problems for the Criminal Law (Oxford University Press, Victoria: 2001) 277.

Above n50.

Above n50 at 172.

the accused. The accused and her son then took the body and buried it in the hole that they had dug earlier. The mother and son then made out that the deceased had ‘disappeared’. 91 On the facts, the son was acquitted of murder but the mother was convicted of murder. 92 She appealed the decision to the Victoria Court of Appeal which upheld the conviction. She then appealed to the High Court of Australia. In her defence, the accused claimed that the deceased had been violent and that she had feared him. Both mother and son gave evidence of the brutality of the deceased and the fact that he had during the day prior to the decision to kill him threatened to kill the son if he did not leave the house. 93 In their dissenting judgment, Gaudron and Gummow JJ noted specifically the relevance of battered woman syndrome evidence in the context of self-defence.

In considering the issue, the judges remarked:

BWS evidence, specifically the heightened arousal or awareness of danger that such a woman might possess may be directly relevant to selfIbid.


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