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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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that was brought against her. The Supreme Court of New South Wales found her guilty and sentenced her to twelve years imprisonment, to serve a minimum term of six years. 121 She successfully appealed the conviction and sentence before the Court of Criminal Appeal, New South Wales. The Appeal Court per Gleeson J found that the trial judge had erred in his instructions to the jury both in respect of self-defence and provocation defences especially when explaining the element of temporal proximity. 122 In his judgment at the trial, Slattery AJ advised the jury that ‘… the crucial matter is what happened at the time of the killing.’ However, Gleeson J accepted the argument of counsel for the appellant that this was ‘too narrow a basis’ and the jury should rather have been instructed that there was an issue for them to consider ‘even if they were satisfied beyond reasonable doubt that, at or immediately before the time of the killing, there was no attack upon the appellant by the deceased. 123 However, before the case was re-heard, the accused pleaded guilty to manslaughter, and the plea was accepted by the prosecution and the accused was accordingly sentenced to a term of eight years imprisonment, to serve a minimum of four. 124 Tolmie argues that a real and possible reason for the accused to have lied to the police may have been embedded in the accused’s life history and experience; yet Above n120 at 2.

Above n120 at14.

Above n120 at 6.

Above n82 at 476. The facts of the case were detailed in the judgment of the trial court, which was not reported. The writer has taken the facts from the summary presented by Tolmie – see above n82. According to Tolmie’s representation, The facts indicated that after the killing, the accused told the police that she and her husband had been attacked by robbers. She later confessed to her attorney that she had killed her husband. Her version was that her husband had come at her with a meat cleaver. She had ducked, grabbed his legs (causing him to trip) and then grabbed the cleaver from where he had dropped it and attacked him, to prevent him from killing her. However, the psychiatrist who testified for the defence during the sentencing stage of the case testified that during their consultations the accused had told him that she had killed her husband whilst he was asleep, and that she had done so in response to his earlier violent behaviour.: above n82 at 478.

Her version of the events (as told to the psychiatrist) was that on this occasion she had identified two things that were different in his behaviour when compared to his other abusive outbursts.

Firstly, he made death threats against her and the children and secondly, he had made the threats whilst holding a knife. She believed that there was an escalation to his violence and that there was now a real probability of harm to herself and her children.: above n82 at 478.

her history was never actually presented to the court. 125 Tolmie also points out that the accused had lived in Cambodia under circumstances when executions and torture, especially of the capitalist class from which the accused came, were rife. The people soon learned to hide their histories and their family backgrounds, as a means of protecting themselves. The accused was forced to marry a man chosen for her by the state. She and her husband later fled Cambodia and sought refugee status in Australia. The state and its representatives were never seen by the accused as protectors. 126 Tolmie concludes that the court in considering the case of Chhay completely overlooked this aspect of her reality. 127 Another aspect that the court emphasised was the lack of evidence to corroborate the claims of the accused. As discussed in Part One of this study, research into intimate violence has shown that it is not uncommon for the abuser to assault his victim in private, and on parts of the body where the bruising does not show or cannot be seen. Confirming this fact in her relationship with the deceased and explaining the lack of witnesses, the accused’s evidence to the court was that the deceased had always attacked her when there was no one around to assist her and she was vulnerable. 128 Also, it is recognised in the literature on family violence that the shame and embarrassment of being an abused wife, the social standards and the family loyalties often prevent the victim from confiding in people. 129 Tolmie supports this comment noting that these values are particularly entrenched in the cultural teachings of Asian families ‘where the individual represents the family [and] guilt and shame assume a different meaning. The Asian concept of “loss of face” implies that the entire family clan loses respect and status in the community when Ibid.

Above n82 at 479-81

Tolmie notes:

If anything, the judge tended to discount or minimise the significance of the accused’s recent history by telling the jury that it was relevant only to her state of mind when she killed the deceased. … [A]ny sympathy or prejudice they might personally feel towards her [should be] put aside as she had now placed herself under the protection of the Australian legal system.: above n82 at 482. See also above n102 at 1249.

Above n82 at 486.

See Part One below.

an individual is shamed. … This places a severe burden on the individual to keep harmony and order, and to minimise any conflicts and problems which could bring guilt and shame to the family.’ 130 This makes it more difficult for the victim and reinforces the feeling of being trapped in the violent relationship. Queensland and Western Australia

In Queensland and Western Australia, the requirements of the defence are firstly that the accused had a reasonable apprehension of death or grievous bodily harm. Under this requirement, Kenny notes that in determining whether the fear of the accused was reasonable, one must evaluate such apprehension against that of a reasonable person. The test is thus objective. 131 In Keith Web J held that whilst the test was the objective standard of the reasonable person, a court was always required to take proper cognisance of the circumstances and position of the accused. 132 However, he also pointed out that ‘the test is not retrospective in perpetuity’ and that the courts will always require ‘a reasonable nexus between the alleged defensive action and the prior conduct of the victim.’ 133 In Muratovic there was evidence of prior violence to the accused by the victim and a threat made six days before the killing incident, which the trial judge had refused to admit, the Court of Criminal Appeal, Queensland allowed the appeal and ordered a new trial, recognising that the jury was entitled to consider the evidence as to the previous threats and assaults to show the nature of the final attack and the accused’s apprehension concerning it. 134 Similarly, in Masters the Court of Criminal Appeal, Queensland again held that evidence of the accused’s belief about the violent character of his victim and evidence of the basis upon which that belief had been founded was admissible as going to the issue of the accused’s belief that he faced a threat of death or grievous bodily harm and the reasonableness thereof. 135 Above n82.

Above n8 at 233. See also Muratovic [1967] Qd R 15 at 28 followed in Lawrie [1986] 2 Qd R 502.

Keith [1934] St. R. Qd. 155 at 169. See also Gray above n10 at 128.

Above n132 at 169-70.

Muratovic above n131 at 19-20.

Masters (1986) 24 A Crim R 65. See also Ellem (1994) 75 A Crim R 370 at 373-4.

The second requirement under the law of Queensland and Western Australia in cases of unprovoked assault and a lethal act of self-defence is that the accused had a belief, on reasonable grounds, that the force used was necessary and he or she could not otherwise have preserved him or herself from death or grievous bodily harm.

The first aspect of this condition is the belief by the defender that the force used was necessary and that she could not have preserved herself by any other means. In Keith the court was of the opinion that the factors to be considered went beyond the immediate engagement between the attacker and the accused and the weapon that the attacker may have showed. 136 The court was also required to take into account any previous conduct by the attacker for example any prior acts of hostility towards the accused. 137 Web J noted that ‘the apprehension of the latter would naturally be grounded on the knowledge he possessed of such manifestations and declarations.’ 138 In Marwey the accused had fatally stabbed his victim and was charged with murder. In dealing with the plea of self-defence and specifically this requirement,

the trial judge instructed the jury as follows:

Above n132 at 177.


Ibid. However, despite taking cognisance of the previous threats and utterances of the deceased, the Appeal Court dismissed the appeal finding that there was a remoteness between the alleged defence of the accused and the previous conduct of the deceased. In casu, there was evidence that there had been an ongoing relationship of hostility between the accused and the deceased. However, the judge refused to admit evidence of the deceased’s assaults on other persons as well as statements made by the deceased some eight months prior that he (the deceased) intended to kill the accused. On the day in question, the accused claimed that his bull had strayed on to the property of the deceased and he went onto the deceased’s property to retrieve his animal.

He had a shotgun with him in case he needed to shoot the animal. Whilst on his mission, the accused was confronted by the deceased who advanced towards him. The accused claimed that the deceased was bigger and stronger than him and that he was afraid of the deceased. The accused shot the deceased, fatally wounding him. The accused appealed against the decision of the trial judge to exclude the further evidence of the deceased’s conduct and threats.

A critical question is what is reasonably necessary. Of course, you take into account all the circumstances [but i]n the ultimate result … it is all a question of what is reasonable in the circumstances,.... 139 The question before the Supreme Court of Queensland was whether the inclusion of the objective qualification that the defence ‘should be reasonably necessary’ constituted a misdirection to the jury. The Supreme Court upheld the appeal and held that the appropriate question should be: Was the belief of the accused based on reasonable grounds? 140 O’Reagan criticises the instruction of the court a quo as it obviously ‘incorporated into the second paragraph a test of objective necessity.’ 141 In both Muratovic and Marwey the courts were clear that the level of force used will be justified if the accused believed, on reasonable grounds, that the force was necessary to make an effective defence. 142 Confirming the application of the law, McPherson JA held in Gray that it was the existence of an actual belief to that effect that remained the critical and decisive factor. The courts have agreed that the provisions of the Codes refer to the former. Thus, in Gray the court noted that in the case of s 271(2) the test will concern itself with the defender’s actual state of mind and the assessment is ‘at least, in part, subjective. The defender must believe that what he is doing is the Marwey (1977) 138 C.L.R. 630 at 633-4. In outlining some of the circumstances that the jury could consider, Barwick CJ noted that on the one hand the jury would have to take note of the seriousness of the weapon used by the accused (a knife), whilst on the other hand they would have to balance whether they accepted that this was the only weapon available to the accused in the circumstances in which he claimed to have found himself. The judge also reminded the jury to take note of the ‘stormy atmosphere’ during the attack and the speed of the assault.: at 633-4. See also above n24 where the taskforce confirmed that the use of lethal force requires that the accused be confronted with a threat of death or serious bodily injury.: at 14.

Above n139 at 635-6 and 637.

RS O’Regan New Essays on the Australian Criminal Codes (The Law Book Company Limited, Sydney: 1988) 87. See also above n8 at 234 where Kenny confirms that there ‘is no requirement for a test of reasonableness to be applied to the amount of force which may be used by the accused.’ Muratovic above n131 at 19 and above n139 at 636-7. See also Gray (1998) A Crim R 593 at 593-4. The confusion in the Marwey case a quo may have arisen from the fact that in Queensland and Western Australia the Codes distinguish between non-lethal defence and lethal defence. In the former instance, the Code provisions require that the force used be ‘reasonably necessary’ – section 271, para 1 Criminal Code Act 1899 (Qld) and section 248, para 1 Criminal Code Act 1913 (WA), but in the latter instance, the reference is only to force that is ‘necessary’.

Above n142 at 593.

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