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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 ...»

-- [ Page 45 ] --

In South Australia the Criminal Code (SA) differs somewhat from the previous provisions discussed in that it expressly includes the requirement of proportionality as a condition of self-defence. The Criminal Code (SA) provides that an accused may use force if she believes that force is necessary and reasonable for a defensive purpose; and the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist. 166 In Tasmania the Criminal Code (Tas) as amended by the Criminal Code Amendment (Self-Defence) Act 1987 states - similar to the Criminal Code (SA) - 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.’ 167 The Criminal Code (Tas), however, makes no reference to the requirement of necessity stating only that the accused should have a belief that the force is reasonable to use. 168 In explaining the Tasmanian law in Walsh, Crawford J noted that the enquiry was both a subjective and objective one. 169 In defining the subjective component, the court identified two questions namely (i) whether the accused was acting in defence of himself when he used the force in question; and (ii) what were the circumstances as he believed them to be which should be taken into account for purposes of the objective assessment. 170 In explaining the objective component of the test, the court said that the question to be asked was: Was the force used, in the Bronitt and McSherry above n6 at 300. The authors of the Report of the Law Reform Committee of the Northern Territory Self Defence and Provocation above n43 also emphasise that in self-defence the focus is not on intent but rather on whether the response was reasonable in the perceived circumstances.: at 29.

Section 15 Criminal Law Consolidation Act (SA) 1935 as amended by the Criminal Law Consolidation (Self-Defence) Amendment Act 1987. See also Howe [1958] 100 C.L.R. 448 at 456Section 46 Criminal Code (Tas).

Ibid.

Bronitt and McSherry above n6 at 294 citing the unreported decision of Walsh 19 August 1993, Supreme Court, Tasmania A68/1993.

Ibid.

circumstances as he believed them to be, reasonable to use? 171 The issue of reasonableness thus pertains to the question of whether the force that was used was reasonable in the circumstances as the accused believed them to be.

Clearly, both South Australia and Tasmania require only that the accused’s belief about the threat be honest - and not reasonable. 172 According to Bronitt and McSherry the focus is on the accused’s belief about the need for force and reasonableness of the force, rather than on whether or not the accused’s belief was based on reasonable grounds (as appears to be the requirement in the other jurisdictions). 173 They believe that the requirements for self-defence in South Australian and Tasmanian law are more subjective as there is no objective

evaluation of the accused’s belief as to whether the force used was reasonable:

rather, ‘the objective factor goes [only] to the necessity and the reasonableness of the force used …’ 174

7.4.2 The Duty to Retreat

Bradfield notes that in most of the Australian jurisdictions there is no separate legal requirement that an accused should retreat before attempting to defend himself. 175 As discussed above, an exception to the norm may be read into the provisions of the Codes in Queensland and Western Australia. 176 However, in all other jurisdictions whether or not the accused could have and should have retreated from the situation of harm is not a separate requirement of self-defence but rather another one of the factors of which the courts will take cognisance when assessing whether the conduct of the accused was reasonably necessary. 177 In Howe, endorsing the view of the Court of Criminal Appeal of South Australia, the High Court of Australia was clear that it was not a correct instruction to the jury to advise that self-defence would be an inappropriate Ibid.

Above n10 at 133.

Bronitt and McSherry above n6 at 301.

Ibid.

Bradfield above n6 at 217. See also Bronnit and McSherry above n6 at 302; Howe above n171 at 460 and 448; and above n72 at 9.

See fn152.

Bronnit and McSherry above n6 at 302; Bradfield above n6 at 149; and above n10 at 133.

finding in circumstances where the jury was satisfied that the killing in selfdefence had taken place when the accused had not retreated as far as possible,

having regard to the attack. 178 In his judgment Dixon CJ stated:

The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out. … Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that if he kills him, he has not exceeded the bounds of lawful self-defence. 179 7.4.4 A Consideration of the ‘Circumstances of the Accused’ and the Need For and Role Of the Expert Witness 7.4.4.1 General Rules of Admissibility of Expert Evidence The rules regarding the admissibility of expert evidence in Australia were summarised by King CJ in Bonython. 180 The court held that expert evidence would be admissible with respect to a relevant matter about which ordinary





persons are:

[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area’ and which constitutes the subject ‘of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience.’ 181 More simply stated, the requirements are that firstly, the opinion of witnesses possessing particular skill is admissible whenever the subject matter of inquiry is Howe above n166 at 460.

Howe above n166 at 462-3.

Bonython (1984) 38 SASR 45. See also Clark v Ryan (1960) CLR 486, at 491. The rule set out in Bonython has been evenly followed in Murphy (1989) 167 CLR 94 at 111; and Farrell (1998) 72 ALJR 1292 at 1295; and above n50 at 184.

Bonython above n180 at 46-7.

such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance; and secondly, before the question of whether a topic is a fit subject for expert evidence is considered, it must first be accepted that there is a scientifically accepted body of knowledge concerning the subject in question. 182 This was reiterated in Runjanjic and Kontinnen where the court held (referring specifically to the battered woman syndrome) that ‘[a]n essential prerequisite to the admission of expert evidence as to the battered woman syndrome is that it be accepted by experts competent in the field of psychology or psychiatry as a scientifically established facet of psychology.’ 183 In C, however, whilst accepting the general rules in relation to the admissibility of expert evidence, the Supreme Court of South Australia warned that courts should always ‘exercise great caution in expanding the area of expert evidence.’ 184 The court noted that such caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence. 185 Clark v Ryan above n180 at 491. Stated otherwise Hocking refers to the requirements as follows: (i) the legitimacy of the field of expert endeavour; (ii) the relationships between the opinions and the specialised knowledge; and (iii) the person’s study, training and experience.: BA Hocking ‘A Tale of Two Experts: The Australian High Court Takes a Cautious Stand’ 2000 64 The Journal of Criminal Law 245, at 252.

Runjanjic and Kontinnen (1991) 56 SASR 114 at 119. Bradfield, however, suggests that this requirement might actually present a real danger for the future viability of BWS evidence. She notes, ‘Although there has been general judicial acceptance of BWS evidence in Australia, commentators have been increasingly critical of the theoretical foundations of BWS and have suggested that it is not sufficiently scientifically validated to be appropriately employed in the forensic context in Australia.’: R Bradfield ‘Understanding the Battered Woman Who Kills her Violent Partner – The Admissibility of Expert Evidence of Domestic Violence in Australia’ 2002 9 Psychiatry, Psychology and Law 177, at 190.

C (1993) 60 SASR 467 at 474.

Ibid. Thus, Hocking notes, courts must be wary of accepting expert testimony where the ultimate conclusion is based on inferences. Rather, states Hocking, the expert opinion must be formulated in such a way ‘that it is unequivocal as to the facts opun which the opinion is based, and [then] as to the inferences that are drawn from the facts.’: above n182 at 253.

7.4.4.2 The Use of Expert Evidence in Cases of Domestic Violence As far as expert evidence on battered woman syndrome is concerned the court in Runjanjic and Kontinnen was aware of the problems of the expert usurping the

fundamental fact-finding role of the jury. However, the court also recognised that:

some human situations or relations, or the attitudes or behaviour of some categories of persons, may be so special and so outside the experience of the jurors, or of the court if it is the trier of facts, that evidence of methodical studies of behaviour or attitudes in such situations or relations, or of the attitudes or behaviour of those categories of persons, may be admissible. 186 In dealing with intimate violence and battery specifically King CJ came to the conclusion that the situation of habitually battered women was truly outside the

realm of ordinary experience. 187 Thus, he acknowledged that:

a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained. 188 Specifically, supporting the decision of King CJ, Legoe J concurred that in cases

involving battered women, expert evidence would:

(a) assist the jury to properly evaluate the effect of the violence on the ensuing conduct of the appellants; and (b) eliminate the risk of the appellants being condemned ‘by popular mythology about domestic violence. 189 Runjanjic and Kontinnen above n183 at 121.

Ibid.

Ibid. In considering the question of admissibility, the court noted that it would not be sufficient to simply argue that the ordinary juror ‘would have no experience of the situation of a battered woman’ because ‘jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience.’: at 120.

Runjanjic and Kontinnen above n183 at 123.

Furthermore, of particular importance, the court identified that the evidence of the expert would be especially relevant to understanding why many women who otherwise appeared to be of strong character did not leave the abusive environment. 190 Taking all this information into account, the court concluded that the exclusion of expert evidence by the trial court had vitiated the trial. 191 The decision in Runjanjic and Kontinnen regarding the admissibility of expert evidence on battery appears to have been followed in all subsequent Australian states. 192 In Osland evidence of battered woman syndrome was presented by the expert, Dr Byrne, a clinical and forensic psychologist. 193 In explaining the relevance of expert testimony in cases involving intimate violence, Dr Byrne specifically pointed out the areas where the ordinary person may experience confusion when encountering the experiences of a battered woman. 194 For example, Byrne noted that an ordinary person would very likely reason that if the woman concerned did not report the violent and abusive behaviour or stayed in the relationship, it could not have been one involving violence or abuse – or, at least, not violence or abuse of the severity claimed. 195 Byrne remarked further that apart from reactions bearing upon the credibility of the accused person’s account of the relationship, the ordinary person was not likely to be aware of the heightened arousal or awareness of danger which battered woman may experience. In considering the requirements of self-defence, expert evidence on heightened arousal to danger would be especially relevant to the question whether the accused believed that she was at risk of death or serious bodily harm and that her reaction was necessary to avoid that risk. 196 Runjanjic and Kontinnen above n183 at 120.

Runjanjic and Kontinnen above n183 at 122.

See J Stubbs and J Tolmie ‘Race, Gender, and the Battered Woman Syndrome: An Australian Case Study’ 1995 8 Canadian Journal of Women and the Law 122.

Above n50.

Ibid at 185.

Interestingly, this was precisely the point made by the prosecution regarding the relationship between the accused and the deceased, her husband.: Runjanjic and Kontinnen above n183 at 185.

Above n50 at 185.



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