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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 Osland the accused did not succeed in her defence.: See above n50 per McHugh, Kirby and Callinan JJ; Gaudron and Gummow JJ dissenting. In specifically looking at the evidence presented by the accused regarding her violent relationship with the accused, Kirby J in Osland notes, ‘Self-defence may indeed be relevant to a case where an abusive relationship is established by the evidence. Such evidence may assist the jury to understand, as self-defensive, conduct which on one view occurred where there was no actual attack on the accused underway but rather a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike.’: at 220. However, in understanding such cases, Kirby J noted further that in the latter instances what was required was that immediately before the fatal attack, the alleged abuser must be seen to have made some attack of threat of attack. The judge clarified, however, that ‘[t]he significance of the perception of danger is not in its imminence. It is that it renders the defensive force used necessary and justifies the defender’s belief that he or she had no alternative but to take the attacker’s life.’: at 221. Considering the instruction to the jury, Kirby J was satisfied that the jury had been properly advised and had still come to the conclusion that the appellant’s conduct was ‘pre-meditated and effected with a calm deliberation and detached reflection rather than reasonably necessary to remove further violence threatening her with death or really serious injury.’: at 221. In summing up the approach of the Australian courts to the evidence, Callinan J found that in dealing with cases such as Osland, which involved allegations of battered woman syndrome, the judge was required to give due weight to the expert evidence presented and the jury was also required to consider such evidence in assessing the factual realities of the case.: at 243. In reviewing the jury instruction and the findings, the judge was satisfied that the trial judge had ‘moulded his directions to accord with the facts of the case before the court. … In the end, it was for the jury to decide whether the deplorable conduct of her husband as recounted by her had actually occurred and whether, in the circumstances, it justified the response of the appellant. It was open to the jury to accept or reject the contentions of the appellant and of the psychologist on these matters. Their verdict of guilty in her case strongly suggests that this is what the jury did.’: at 244.

defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. 94 It is the writer’s view that the dissenting judgment is especially important for its acknowledgement of the relationship between battered woman syndrome and self-defence. However, Stubbs and Tolmie are more critical of the judgment pointing out that a fundamental limitation is the fact that it focuses on battered woman syndrome as only explaining the subjective elements of self-defence.

They comment that Gaudron and Gummow JJ appear to suggest that:

… BWS assists the court in understanding the personal or idiosyncratic – the ‘subjective’ responses of battered women who suffer from the syndrome – rather than explaining the effect that circumstances of violence might have on the responses of ordinary or reasonable women. 95 Whilst the comment of Stubbs and Tolmie is fair, especially regarding the court’s failure to present a more comprehensive judgment on the subject, it is suggested that it could not have been the intention of the court to limit the battered woman syndrome evidence only to the subjective belief of the accused. This view is supported by the fact that in dealing with the use of expert evidence in cases of battered women, the judges themselves specifically acknowledged that expert testimony to explain the history of a particular relationship would assist the court in understanding the reasonableness of the belief (and allied conduct) of the accused. 96 In his judgment, and specifically with reference to battered woman syndrome, Kirby J in Osland commented that the purpose of introducing such evidence was ‘to show how a victim’s actions in taking lethal self-help against the abuser were reasonable in the extraordinary circumstances which the victim faced.’ 97 Above n50 at 185.

Above n69 at 725.

Above n50 at 185. In fact, Stubbs and Tolmie actually also admit this fact of the judgment.:

above n69 at 725 fn79.

Above n50 at 215.

Referring to and applying the law as set out in the Canadian case of Malott [1998] 1 S.C.R. 123 as persuasive authority, he noted that such evidence was integral to the assessment of ‘whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the charge.’98 In looking at all the facts of the case and the nature of the relationship between the accused and the deceased, Kirby J referred to the ‘significance’ of the accused’s perception of danger as being relevant to assessing whether the defensive force used was really necessary and justified the defender’s belief that she had no alternative but to take the attacker’s life. 99 Stubbs and Tolmie thus suggest that the approach of Kirby J is preferable to that of Gaudron and Gummow JJ in that it more directly acknowledges that evidence of battered woman syndrome is relevant to the objective leg of the test of selfdefence. 100 In underscoring the importance of the social framework and the various circumstances that the court will consider, Scutt nevertheless cautions against drawing the conclusion that the overall test for assessing the accused’s belief and consequent defensive action has become purely subjective – she emphasises Above n50 at 217-8.

Above n50 at 221. On the evidence before it, the court found that the behaviour of the accused was pre-meditated and the conviction was confirmed. The further specific evidence before the

court summarised by Callinan J was that:

(i) two witnesses testified (and there was evidence to this effect) that well before the killing the accused had sought to solicit their services to kill the deceased;

(ii) the appellant’s claims of fear of the deceased did not match statements that she had made to independent third parties. In these conversations the accused had admitted to leading an independent life from the accused, going out alone with her friends, and nowhere in the statement transcripts did she refer to sustained abuse from the deceased; and (iii) the appellant, in her evidence, did not make any suggestion of particular words or deeds which may have triggered the killing. Her evidence was simply that it was ‘more of the same’. (Whilst the son gave evidence of the abuse suffered by him and the accused on the night of the killing, the accused did not do the same.): above n50 at 235.

Thus, concluded Callinan J, ‘… this was a pre-planned killing in which the participants had, pursuant to that plan, dug a grave, rendered the deceased comatose by drugging his food, discussed the method of executing the “kill” and then ruthlessly carried it out. Such pre-planning, it was said, was the antithesis of self-defence …’: above n50 at 234-5.

See above n69 at 726.

that the test is clearly not what the accused honestly, even if unreasonably, believed. 101 The overall test is an objective test with subjective elements.

Crenshaw re-iterates the relevance of taking cognisance of the individual experiences of the accused. In her argument she urges further that particular note be taken of the ‘different hierarchies of oppression [that] interact in a person’s life to produce unique experiences.’ However, she warns against the trap of developing stereotypes.

Cognisant of the seriousness of the problem of domestic violence facing the country and the difficulties confronted by victims of abuse in the courtroom, the Victoria Law Reform Commission gave specific consideration to the question whether a new defence should be introduced with regards to women who kill abusive partners. 103 However, deciding against this approach, the state rather opted for a modification of the existing law. 104 A new provision was introduced which takes note that where family violence is involved a person may have reasonable grounds for believing that their conduct is necessary to defend themselves even if responding to harm that is not immediate. 105 Evidence which was considered relevant included (but was not limited to) the history of the relationship; the cumulative effect of domestic violence; social, cultural, or economic factors; general nature of relationships that involve violence; and the psychological effect of violence. 106 New South Wales

In New South Wales the requirement is that the accused has a belief that force was necessary and a reasonable response to the circumstances as s/he perceives them to be. In Dziduch, the court confirmed that the proper instruction to a jury dealing with a case of self-defence was for them ‘to consider the whole JA Scutt Women and the Law (The Law Book Company, New South Wales: 1990) 417.

K Crenshaw ‘Mapping the Margins: Identity Politics, Intersectionality, and Violence Against Women’ 1991 43 Stanford Law Review 1243, at 1245.

Victoria Law Reform Commission, Defences to Homicide: Final Report above n4 at 66.

Crimes Act 1958 (Vic), section 9AE.

Above n104, section 9AH.

Ibid. Victoria is the only state to have specifically enacted legislation in this regard.

of the circumstances’ in which the accused found himself. 107 In Hickey the New South Wales Supreme Court was presented with the following facts: The deceased had been abusive towards both the accused and their children, especially when he was intoxicated. 108 At the time of the killing, the accused was living apart from the accused. However, on the day in question, the accused had taken their children to visit with their father. 109 However, after some time spent drinking and after the accused refused to allow the children to stay overnight, the deceased became violent. 110 The evidence was that he threw the accused onto the bed, headbutted her and tried to strangle her. 111 The deceased then stopped his assault, sat up on the bed and turned his back on the accused. At this point the accused grabbed a knife and fatally stabbed the deceased. 112 The question was whether it could be found that the accused believed that it was necessary to kill the deceased and whether such a belief could be said to have been based on reasonable grounds. On the facts, the jury found that this was so and acquitted the accused. In arriving at its decision, the jury took particular notice of the history of the relationship between the parties and the violent assault which occurred immediately before the killing. 113 In Conlon, heard by the Supreme Court of New South Wales, the prosecution argued that the decision as to whether there were reasonable grounds for any belief on the part of the accused that it was necessary to do in self-defence what he did, was a purely objective one. 114 The court disagreed. Relying on Zecevic v DPP (Vic) the court found that the belief which had to be reasonable was the belief of the accused and not that of the reasonable hypothetical person in the position of the accused. 115 Thus, the court added, ‘the assessment as to whether the accused’s belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the Dziduch (1990) 47 A Crim R 378 at 380 (CCA NSW).

Hickey (1992) 16 Crim LJ 271, at 271.





Above n108 at 272-3.

Conlon above n80. See also Hawes (1994) 35 NSWLR 294.

Conlon above n80 per Hunt CJ at 98.

reasonableness of his response to that danger, …’ 116 In casu, in considering the personal circumstances of which note should be taken, the prosecution argued that ‘voluntarily induced intoxication through the consumption of alcohol or drugs should not be taken into account as such a personal characteristic because … to do so would entitle those whose perceptions are mistaken by reason only of such intoxication to kill with impunity.’ 117 Again rejecting the argument, the Supreme

Court held:

No judgment of an Australian court … given since Zecevic has been found which insists that such a characteristic should be excluded from this assessment. … [Accordingly,] the voluntarily induced intoxication of the accused [should be taken into account] in so far as it may have affected either his appreciation of the gravity of the threat which he faced or the reasonableness of his response to that danger. 118 In Hawes the Supreme Court of New South Wales took a similar approach to Conlon confirming that it was the belief of the accused, based on the circumstances as the accused believed them to be, which had to be reasonable – and not the belief of the hypothetical person in the position of the accused. 119 The test thus appears reasonably well settled as a hybrid objective and subjective assessment.

In Chhay, the accused was charged with the killing of her husband who she claimed had been habitually violently abusive towards her. 120 The accused raised self-defence (and, in the alternative, provocation) to the charge of murder Conlon above n80 at 99.


Ibid. In New South Wales self-defence will not be available to a defender in circumstances where she was mistaken as a result of self-induced intoxication.

This has been specifically legislated against in section 428F of the Crimes Act 1900 (NSW). See also section 1 of the Criminal Code Act 1983 (NT) above n10.

Referring specifically the recognition of intoxication, Leader-Elliot agrees with the more sympathetic and more realistic approach to intoxication when selfdefence is in issue.: above n66 at 448.

Above n114 at 306.

Chhay (1994) 72 A Crim R 1 at 2. See also above n80 where Tolmie discusses the unreported trial judgment (Chhay Supreme Court of New South Wales, Criminal Division, 24 August 1992).

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