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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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only way he can save himself or someone else from the assault.’ 144 There is no additional requirement that the force used be, objectively speaking, necessary for the defence. 145 In interpreting the provisions of the Codes, the courts have drawn a clear distinction between the two interpretations namely, a ‘belief, on reasonable grounds’ of the amount of force to be used; and a belief that the force was ‘reasonably necessary’. 146 Bronitt and McSherry agree noting that the law does not require a consideration ‘of what a reasonable or ordinary person would have believed, but rather, what the accused him or herself might reasonably have believed in all the circumstances. 147 The second element of the requirement is the requirement that the belief that the force used was necessary must be based on reasonable grounds. This aspect of the requirement imports an objective assessment into the enquiry. 148 In applying this second requirement to a case involving domestic violence, Stubbs and Tolmie applaud the court in Stjernqvist for demonstrating ‘a sophisticated understanding’ of the issues. 149 In casu in considering the necessity of the action of the accused, the court acknowledged the reality of the abusive relationship and analysed the violence which the accused faced in terms of a general overall threat that she lived with, rather than evaluating her experiences with the deceased as a series of isolated instances of violence with periods of calm in between. 150 According to Derrington J, in analysing the circumstances of the accused, he was forced to take cognisance of the demands being placed on the accused namely, Above n142 at 598.


Kenny notes that had the Code provisions stipulated a requirement that the accused believe that the force was ‘reasonably necessary’, an honest and reasonable but mistaken belief by the accused would still have permitted her to rely on self-defence.: Above n8 at 236. However, this is not the statement of either Code.

Bronitt and McSherry above n6 at 308.

Above n8 at 234.

Above n69 at 739.


to remain in the situation of abuse and violence or leave and then be subjected to the threat of being killed by her aggressor. 151

The duty to retreat

None of the Australian states place a specific duty upon an accused to retreat from an attack. However, Kenny notes that whilst this may not be explicitly stated in sections 271(2) of the Criminal Code Act 1899 (Qld) or 248 of the Criminal Code Act 1913 (WA), the use of the word ‘otherwise’ in the provisions ‘may be wide enough to include the question of the accused’s retreat from the scene as a possible alternative to using force.’ 152 Thus, Kenny expresses the opinion that if the accused had an opportunity to retreat reasonably available to her, ‘the jury may find that the belief in the necessity to use the force in fact used may not be based on reasonable grounds.’ 153 In considering the use of the word ‘otherwise’, the Supreme Court of Western Australia in Srekovic held that the use of the word “Otherwise” required a consideration by the court of whether the accused had, on the facts of the case, an alternative reasonable available to him that would equally protect him from the danger with which he was being confronted. 154 O’Reagan confirms that from the case law it would appear to follow ‘that if the accused applied such force instead of retreating when he had an opportunity to do so he would lose the protection of this section. He could have preserved himself “otherwise” than by acting as he did.’ 155 Ibid. The importance of the judgment by Derrington J is supported by the research of Hunter who concluded from her study that magistrates appeared generally to be looking ‘for a recent

incident’ and that their general focus was on ‘incidents rather than patterns of abusive behaviour’.:

R Hunter ‘Narratives of Domestic Violence’ 2006 28 Sydney Law Review 733, at 756. Hunter goes further to note that the consequence of this approach of understanding the violence in terms of ‘decontextualised physical incidents’ is that magistrates ‘often did not understand why women continued to be fearful of the defendant even after they had separated from him or may not have seen him for some time.’: at 756-7.

Above n8 at 234.


Srekovic [1973] WAR 85 at 89. See also Johnson [1964] Qd R 1; and Muratovic above n131 at 19-20 where the principle was re-iterated and seems to have become fixed in the Australian law.

Above n141 at 83. See also above n139 at 636-7 per Barwick CJ.

It is thus arguable that sections 271(2) and 248 of the Queensland and Western Australia Codes respectively impose a higher obligation than the common law and the requirements of the other Code jurisdictions. Heed should, however, be paid to the comment of the Queensland Supreme Court in Johnson which cautioned that ‘the jury should be warned against being wise after the event and they must consider the matter from the point of view operative on the accused’s mind in the stress of the moment.’ 156 Northern Territory

In respect of the law of self-defence in the Northern Territory it must be noted at the outset that the Criminal Code Act 1983 (NT) does not distinguish between provoked and unprovoked attacks, as is the case in Queensland and Western Australia. 157 The requirements of self-defence in the Northern Territory are covered in the Criminal Code Act 1983 (NT) in sections 27 to 29 under the broad rubric of ‘justifications’. Section 29 deals specifically with justifications in situations of self-defence. It is, however, read with sections 27 and 28. 158 The provisions of sections 27 and 28 require that the force used must not be

unnecessary force. ‘Unnecessary force’ is defined in the provisions as:

force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion. 159 Thus, Gray notes that in carrying out its onus, the prosecution may prove beyond a reasonable doubt either (i) that the user of force subjectively knew that the force used was unreasonable; or (ii) that an ordinary person, in her Johnson above n154 at 13.

Above n10 at 133.

Above n10 at 127.

Section 1 Criminal Code Act 1983 (NT).

circumstances, would have considered the forced used unnecessary or disproportionate. 160 In defining a person ‘similarly circumstanced’, section 1 of the Code leaves the determination widely open providing only that it should not be a person ‘voluntarily intoxicated’. 161 In providing a measure of guidance, Gray expresses the opinion that the test for ‘reasonable grounds’ which is applied under the common law will also be appropriate in considering sections 27 and 28. 162 According to section 29(1) a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act. In order for the act to fall within the ambit of ‘defensive conduct’ section 29(2)(a) [as amended by Amendment No 75/91, section 3] provides that the person must believe the conduct is necessary for certain purposes (which include inter alia defence of himself or another person). This requirement is a subjective assessment. Reading section 29(2)(a) further, one notes that under such circumstances, the defender is further entitled to use lethal force or force necessary to cause grievous bodily harm.

The objective analysis of the defendant’s conduct is contained in section 29(2)(b) which requires that the conduct is a reasonable response in the circumstances as the person reasonably perceives them. Thus, the accused must have a reasonable belief of the threat posed and the force used in response must also be reasonable. 163 Gray notes that this provision will be similar in its interpretation Above n10 at 127.

Section 1 Criminal Code Act 1983 (NT).

Above n10 at 128.

Above n10 at 133. See also the Report of the Law Reform Committee of the Northern Territory Self Defence and Provocation above n43 at 29. The amendment of the Criminal Code Act (NT) 1983 by Criminal Code (NT) Amendment Act 27 of 2001 (see www.nt.gov.au/dcm/legislation/current.html - accessed on 7 December 2008) has extended the interpretation of conduct in self-defence in the Northern Territory. Previously, justification for lethal force in self-defence fell under section 28(f) of the Criminal Code (NT) which applied only ‘where the nature of the assault being defended is such as to cause the person using the force reasonable apprehension that death or grievous bodily harm will result.’ [my emphasis] Gray notes that the requirement that the defendant be acting against as ‘assault’ requires a reference to section 187 of the Code where ‘assault’ is defined. According to the section: ‘Assault’ is ‘(a) the direct or indirect application of force to a person without his consent …; or (b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or and application to that contained in the common law which requires ‘that the accused believe upon reasonable grounds that it was necessary in self-defence to do what he or she did’. 164 Thus, in determining the reasonableness of the accused’s belief, the jury will be able to take cognisance of circumstances including the victim’s prior conduct, the relationship between the parties, and all facts within the knowledge of the accused.

Thus, summing up the rule, the requirement is that the accused’s belief must be based on reasonable grounds as s/he reasonably believed given her/his circumstances. Bronitt and McSherry stress that it is important to recognise that ‘the requirement that the accused’s belief be made on reasonable grounds does apparent present ability to effect his purpose is evidenced by bodily movement or threatening words.’ [my emphasis]: above n10 at 130.

This provision caused controversy in Secretary where the accused was charged with murder after she had shot her sleeping husband: above n72. The facts were that they had had an eight year relationship during which the deceased had mentally, physically and emotionally abused the accused and their children.: at 99. The accused had sought legal protection and had even made efforts to leave the deceased.: at 99. On the night of the fatal shooting, the deceased had made specific threats against the accused which caused her to fear for her life.: at 100. When the deceased fell asleep, the accused took one of the deceased’s guns and shot him.: at 100.

The question that the court had to decide was whether it could be said that the accused had been defending herself against an ‘assault’ given that there was clearly no direct or indirect application of force at the time of the killing – as required by section 187 of the Code. The court was prepared to accept that there was a threatened application of such force but it remained highly questionable whether the deceased could be said to have had the actual or apparent present ability to carry out the threat. There was no doubt, however, that the deceased had the ability to carry out the threat at a future date when he awoke. It was this that gave rise to the reasonable apprehension of death or grievous bodily harm and it was this threat against which the accused was defending herself.: at 103.

The court found per Angel J: ‘There was a threat to apply force at a future stated time. The threat was never withdrawn. At the time the threat was uttered there was an ability (actual or apparent) to carry out the threat when the stipulated time came. On the facts, short of being disabled from effecting the threat, whether by pre-emptive strike or the accused’s flight or otherwise, the deceased’s ability to carry out the threat continued.’: at 98. Mildred J confirmed that in his view it remained open to the jury to conclude that the threat was not withdrawn when the accused fell asleep. ‘I see no reason why the assault should have been regarded as spent merely because the deceased was temporarily physically unable to carry out his threat.’: at 104. Gray is, however, adamant, (and the writer agrees) that the interpretation of the court was not congruent with the Code provision of the time.: above n10 at 131. However, Gray notes that given that the plight of battered women had already received acknowledgement under the domestic law and in other Commonwealth jurisdictions, the Court of Criminal Appeal was forced ‘into a somewhat artificial interpretation of the terms of the Code, in order to do justice to this case. However, this problem is now resolved after the Code was amended.

Above n10 at 132.

not mean a consideration of what a reasonable or ordinary person would have believed, but rather, what the accused him or herself might reasonably have believed in all the circumstances.’ 165 South Australia and Tasmania

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