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VICTIMS WHO KILL THEIR ABUSERS:A DISCUSSION PAPER ON DEFENCES

Prepared for the Attorney-General and Minister for Industrial Relations

Geraldine Mackenzie and Eric ColvinBond University

14 April 2009

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VICTIMS WHO KILL THEIR ABUSERS:A DISCUSSION PAPER ON DEFENCES

Geraldine Mackenzie and Eric Colvin∗

CHAPTER 1: INTRODUCTIONA. Terms of Reference

1.1 Our terms of reference are to prepare an initial discussion paper and eventual report on: ‘the development of a separate defence to murder for persons who have been the victims of a seriously abusive relationship who kill their abusers’.

1.2 In undertaking this reference, we are to have particular regard to:

a) Recommendation 21-4 of the Queensland Law Reform Commission Report No 64, A review of the excuse of accident and the defence of provocation;

b) the best current knowledge about the effects of seriously abusive relationships on victims;

c) ensuring that such a defence is applicable to an adult or a child and is not gender-specific;

d) whether the defence should provide a complete defence to murder or a partial defence only (that is, reducing murder to manslaughter);

e) legislative reforms in other jurisdictions designed to address the position of people in seriously abusive relationships who kill their abusers in circumstances in which existing defences do not apply; and

f) whether any ancillary evidentiary provisions are required to facilitate the operation of any new defence.

1.3 The background to this reference is a recommendation made in Report No 64 of the Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation (2008). The Commission made several recommendations with respect to the defence of provocation in the law of homicide.1 The Commission also

Professor and Dean, Faculty of Law, Bond University; Professor of Criminal Law, Faculty of Law, Bond University. The authors would also like to acknowledge the assistance of Jodie O’Leary, Assistant Professor, Faculty of Law, Bond University, who is primarily responsible for Chapter 2. The assistance of Claire Ferguson, criminologist and Teaching Fellow, Faculty of Humanities and Social Sciences, Bond University in writing Chapter 2 is gratefully acknowledged. The authors would also like to thank research assistants Kathy Glynn, Kate Mounsey and Eliza Radovici.

1 Queensland Law Reform Commission, Report No. 64: A review of the excuse of accident and the defence of provocation (2008), Recommendations 21-1 – 21-3, 21-5. It was recommended that the partial defence of provocation should be retained as a partial defence to murder in light of the Government’s stated intention to retain the mandatory penalty of life imprisonment for this offence; that it should not be possible to base the defence upon provocation wholly or substantially in the form of words, except in circumstances of an extreme or exceptional character; that it should not be possible to base the defence upon provocation in the form of the deceased’s choice about a relationship, except in circumstances of an extreme or exceptional character; and that the

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made the following recommendation (Recommendation 21-4) about the victims of seriously abusive relationships who eventually respond with violence against their abusers:

Additionally, the Commission recommends that consideration should be given, as a matter of priority, to the development of a separate defence for battered persons which reflects the best current knowledge about the effects of a seriously abusive relationship on a battered person, ensuring that the defence is available to an adult or a child and is not gender-specific.

1.4 For the purposes of this discussion paper, the terms of reference have been interpreted broadly in two respects:

• The terms of reference refer to victims of seriously abusive relationships who kill their abusers. A partial defence would be designed only for cases that would otherwise be murder. However, a complete defence could also be made available for cases of attempted killing and for cases where non-fatal injuries were inflicted. This Discussion Paper therefore considers the option of a complete defence as an option for any charge of criminal violence.

• The terms of reference refer to a separate defence. In its report, the Queensland Law Reform Commission recommended that consideration be given to developing a separate defence for victims of seriously abusive relationships as an alternative to accommodating them by distorting the defence of provocation.2

Another option, however, would be to amend the law of self-defence. Substantial amendments to this defence have been made in several other Australian States. The option is therefore considered in this discussion paper.

1.5 The discussion paper comprises six chapters. The present chapter presents certain strategic issues which need to be considered. Chapter 2 examines what is known about the effects of seriously abusive relationships on victims and about the states of mind of victims who kill or use other violence against their abusers. Chapter 3 examines how a complete defence against all criminal liability might be formulated. Chapter 4 examines how a partial defence to murder, reducing the offence to manslaughter, might be formulated. Chapter 5 addresses some ancillary evidentiary issues. Chapter 6 charts the direction of law reform in other Australian States.

B. Strategic issues

1.6 Victims of seriously abusive relationships (often called ‘battered persons’3) who respond with violence against their abusers are generally considered to deserve at the very least some mitigation of punishment to reflect reduced culpability.4 In cases where they acted for reasons of self-preservation with a genuine belief in the necessity of the action, mitigation may be thought deserved even if the perception of the danger or of the options for escaping it was wrong.

1.7 The exercise of sentencing discretion may not be the answer in all cases. Victims of seriously abusive relationships who respond with violence against their abusers are

onus of proof with respect to the defence should be reversed, with the defendant being required to establish it on a balance of probabilities.

2 Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) [21.138].

3 See discussion of this term in Chapter 2.4 See discussion in R v MacKenzie [2000] QCA 324, per McMurdo P at [19]-[23].

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sometimes thought to merit a complete defence against criminal liability, at least where there were reasonable grounds for fear and desperation.

1.8 If, for some reason (such as lack of reasonable grounds for believing that it was necessary to use lethal force), a complete defence is not available in a homicide case, a conviction of murder may still be unjust. A conviction of some lesser offence such as manslaughter may more appropriately reflect the degree of culpability. This argument can be made on the basis of the stigma attaching to the offence of murder, regardless of its penal liability. It can be further argued that a murder conviction would be a particularly grave injustice in jurisdictions, such as Queensland, where the offence carries a mandatory sentence of life imprisonment.

1.9 Yet, potential defences such as self-defence and provocation are subject to stringent conditions in many jurisdictions, including Queensland. These conditions may limit their usefulness for victims of seriously abusive relationships. Hence, it is sometimes suggested that there should be a separate defence, specifically geared to the circumstances of such persons.

1.10 There are two possible roles for a separate defence for battered persons.

• There could be a complete defence against all criminal liability on the model of the defence of self-defence. Such a defence could be confined to battered persons who kill their abusers. Alternatively, a complete defence could be made available for any charge of criminal violence. There is no obvious reason for distinguishing killing from attempted killing or the infliction of non-fatal injuries.

• There could be a partial defence to murder alone, on the model of the defence of provocation, which is recognised in Queensland, or the defence of excessive force in self-defence, which has been introduced in some other Australian States. In the event of such a partial defence succeeding, the person would still be guilty of manslaughter.

These options are not mutually exclusive: both a complete defence and a partial defence could be made available. Moreover, on a charge of murder, a defendant could argue not only for a complete defence but also for a partial defence in the alternative.

1.11 The idea of a separate defence or defences for battered persons has been discussed in reports from several jurisdictions. However, the idea has not generally found favour in Australia and New Zealand. In recent years, the New Zealand Law Commission, the Victorian Law Reform Commission and the Law Reform Commission of Western Australia have all conceded problems with the available range of defences but have concluded that there are better ways of reforming the law than by creating any separate defence.5

1.12 In rejecting the idea of any separate defence, these Commissions have sought to assist battered persons through amendments to the general law of self-defence and also through the introduction of sentencing discretion for murder. Proposals for the general law of self-defence have encompassed both relaxing the conditions for the complete defence and also introducing a partial defence to murder for cases where excessive force was used in an honest belief that it was necessary.

5 New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report 73 (2001) 27-30. Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) 64-84; Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97(2007) 285-295.

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1.13 The Queensland Government has excluded the option of introducing sentencing discretion for murder.6 However, amending the general law of self-defence is an option which should be considered as an alternative to the creation of a separate defence or defences. This Discussion Paper examines these alternative routes to reforming the law in relation to both a complete defence against all criminal liability and a partial defence to murder.

1.14 The English Law Commission has made some radical proposals with respect to the defence of provocation which would in effect create a new partial defence to murder for a person who acts in response to fear of serious violence, gross provocation causing a justifiable sense of being seriously wronged, or a combination of the two.7 This proposal recognises that the psychology of killing can be complex, with several emotions working together. The Commission acknowledged that its proposal would allow the defence to be grounded in ‘anger, fear or a combination of the two’.8 The proposal has been characterised by the Victorian Law Reform Commission as moving the basis for the defence of provocation from the traditional ‘anger as loss of self-control’ to ‘anger as outrage’.9

1.15 Provocation in any form has not been viewed as a suitable defence for most battered persons in any of the recent reports in Australia and New Zealand.10 Moreover, the Queensland Law Reform Commission has specifically recommended against trying to adapt the provocation defence for the circumstances of victims of seriously abusive relationships.11 Against this background, this discussion paper will not examine whether and how the general defence of provocation could be developed to assist the victims of seriously abusive relationships who kill their abusers. Nevertheless, the proposals of the English Law Commission will be considered in Chapter 4, in relation to models for a separate partial defence for such persons.

Questions:

As a matter of general principle, should victims of abusive relationships who respond with violence against their abusers be given a complete defence against criminal liability, subject to suitable conditions for the defence?

If such a complete defence is to be made available, should it be restricted to persons who kill and are facing charges of murder, or should it be made available in relation to any charges of criminal violence?

If such a complete defence is to be made available, what kind of conditions should attach to it?

6 See Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) [1.4], specifying the matters taken into account by the Attorney-General in referring the review to the Commission.

7 Law Commission, Partial Defences to Murder: Final Report (2004) [3.168]. See also Law Commission, Murder, Manslaughter and Infanticide, LC No 304 (2006) [5.1]-[5.82]. A version of this proposal has now been adopted by the British Government: Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008) 10-12.

8 Law Commission, Partial Defences to Murder: Final Report (2004) [3.101].9 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [2.89].10 See New Zealand Law Commission, Some Criminal Defences with Particular

Reference to Battered Defendants, Report No 73 (2001) [114]-[120]; Victorian Law Reform Commission: Defences to Homicide: Final Report (2004) [2.102-2.103]; Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 279-280.


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As a matter of general principle, if it was honestly believed that killing was necessary for self-preservation but the conditions for a complete defence are not satisfied, should a partial defence be made available which would reduce the offence from murder to manslaughter?

If such a partial defence is to be made available, what kind of conditions should attach to it?

If either a complete or a partial defence is to be made available, would the better general approach be either to create a separate defence or defences or to make reforms to the law of self-defence?

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CHAPTER 2: VIOLENT RESPONSES TO ABUSE2.1 Victims of seriously abusive relationships sometimes respond by killing or using other serious violence against their abusers. Whether or not they should be protected against criminal liability, and how they should be protected, depends substantially on the assessment of their situational experiences and their motivations. These experiences and motivations are examined in this chapter.

A. Abusive relationships and their victims

2.2 A battered woman, as originally defined, was one ‘repeatedly subjected to any forceful physical or psychological behaviour by a man in order to coerce her to do something he wants her to do…’.12 This definition indicates that the abuse must occur more than once. It allows for both physical and psychological abuse and requires the abuser to exercise coercive control in the relationship. Although the early literature referred to ‘battered women’, or ‘battered wives’, it has more recently been acknowledged that these issues are not confined to heterosexual, married women alone.13

2.3 Battered persons can endure various types of abuse or violence within a range of severity. Abuse can be physical, sexual, verbal, psychological or emotional. It can comprise forced isolation, stalking and/or economic deprivation. For example, Queensland legislation defines domestic violence as an act or threat, within the context of a domestic relationship, of: (a) wilful injury; (b) wilful damage to the other person’s property; (c) intimidation or harassment of the other person; and/or (d) indecent behaviour to the other person without consent.14

2.4 Some researchers have argued that battering or domestic violence can occur without the elements of domination and control;15 however, others view these considerations as central to ascribing a label of domestic violence.16 Moreover, some research also reveals that those who experience violence within an overarching structure of domination and control17 are more likely to be exposed to frequent and severe violence that is less likely to stop.18

12 Lenore E Walker, The Battered Woman (1979) xv.13 See discussion in Part C of this chapter.14 Domestic and Family Violence Protection Act 1989 (Qld) s 11.15 For example, Michael P Johnson, ‘Conflict and Control: Symmetry and Asymmetry in

Domestic Violence’ (2006) 12 Violence Against Women 1003, notes that some violence in intimate relationships can occur outside of the framework of control. He categorises these relationships as situational couple violence. See also Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 343. Their analysis of research revealed that women who used violence in intimate relationships ‘did not use intimidating or coercive forms of controlling behaviour’.

16 Zoe Rathus, ‘There Was Something Different About Him That Day: The Criminal Justice System’s Response To Women Who Kill Their Partners’ (Brisbane: Women’s Legal Service, 2002) 2.

17 These relationships are categorised as ‘intimate terrorism’ in Michael P Johnson and Janel M Leone, ‘The Differential Effects of Intimate Terrorism and Situational Couple Violence: Findings from the National Violence Against Women Survey’ (2005) 26 Journal of Family Issues 322, 323.

18 Michael P Johnson and Janel M Leone, ‘The Differential Effects of Intimate Terrorism and Situational Couple Violence: Findings from the National Violence Against Women

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2.5 Kevin Hamberger indicates that, in relationships where both parties use violence, there can still be a primary perpetrator and a victim:

...a partner who physically and psychologically assaults his or her partner, views their violence as intended to control or dominate the partner, and is not afraid in such violent situations would be conceptualized as the predominant perpetrator. A partner who uses violence intended to defend themselves or retaliate against prior violence, and who is afraid of their partner’s violence would be identified as a victim, albeit one who is engaging in active resistance.19

This typology could be used to help establish if persons who commit homicide and other serious violence fall into the category of victims of seriously abusive relationships.

B. Violent responses Fear, desperation and anger

2.6 Fear and desperation are prevalent images in psychological studies of battered persons who kill or use other serious violence against their abusers.20 Such persons often act for reasons of self-preservation, expecting the abuse to continue and fearing for their lives or safety.21 Moreover, they act in desperation, seeing no other viable way of escaping the danger. The option of leaving the relationship is seen as unrealistic, either because there are domestic ties that cannot be abandoned (for example, to children), or because of the danger that an attempt to leave will generate an attack from the abuser,22

or because the abuser is likely to track down the victim and renew the abuse,23 or simply because there is nowhere to go.24

2.7 Research also indicates that some victims of abuse react with anger, want to retaliate or seek retribution.25 However, this motivation for their subsequent violent response does

Survey’ (2005) 26 Journal of Family Issues 322, 344. 19 L Kevin Hamberger, ‘Men’s and Women’s Use of Intimate Partner Violence in Clinical

Samples: Towards a Gender-Sensitive Analysis’ (2005) 20 Violence and Victims 131, 133.

20 Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 340.

21 Ola W Barnett, ‘Why Battered Women Do Not Leave, Part 2: External Inhibiting Factors – Social Support and Internal Inhibiting Factors’ (2001) 2 Trauma, Violence, & Abuse 3, 10.

22 Wilson J in R v Lavallee [1990] 1 SCR 852 cited the environmental factors of both “presence of children to care for [and] fear of retaliation by the man” listed by Charles Patrick Ewing, Battered Women Who Kill (1987) as other reasons a battered woman would not leave the relationship.

23 Ola W Barnett, ‘Why Battered Women Do Not Leave, Part 1: External Inhibiting Factors Within Society’ (2001) 1 Trauma, Violence and Abuse 343, 346, notes that ‘leaving may provoke some batterers to kill their partners…’. Further, the article discusses US research that found that women who were killed by their male partners were often separated or trying to terminate the relationship at the time. See also Jinseok Kim and Karen A Gray, ‘Leave or Stay?: Battered Women’s Decision After Intimate Partner Violence’ (2008) 23 Journal of Interpersonal Violence 1465, 1467.

24 Ola W Barnett, ‘Why Battered Women Do Not Leave, Part 1: External Inhibiting Factors Within Society’ (2001) 1 Trauma, Violence and Abuse 343, 346, 348.

25 Suzanne C Swan, Laura J Gambone, Jennifer E Caldwell, Tami P Sullivan and David L Snow , ‘A Review of Research on Women’s Use of Violence With Male Intimate Partners’ (2008) 23 Violence and Victims 301, 309.

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not necessarily preclude a state of fear.26 In a submission to the English Law Commission on the psychology of provoked killings, the Royal College of Psychiatrists denied that the emotions of anger and fear are distinct in ‘medical reality’:

Physiologically anger and fear are virtually identical, whilst many mental states that accompany killing also incorporate psychologically both anger and fear. Hence, the abused woman who kills in response even to an immediate severe threat will also be driven at least partly by anger at the years of abuse meted out to her, and perhaps her children…Any legal solution to the current perceived problems with partial defences to murder which rested upon the assumption that fear and anger can (even usually) be reliably distinguished must, from a medical perspective, therefore fail.27

Thus, if acting in fear were to be made an element of a defence, the defence need not necessarily fail because there was evidence that anger was also a motivating factor.

Battered women’s syndrome

2.8 Battered women’s syndrome (‘BWS’) has appeared in the literature about abuse and its effects on victims since 1979.28 Battered women’s syndrome has been used to help explain why particular women kill their abusive partners, and has generally posited that a coercive and controlling man was involved in a cycle of violence with his female partner, who in turn developed a psychological condition of ’learned helplessness’ which explains why she did not simply leave the relationship.29

2.9 Lenore Walker has used the cycle of violence to explain the dynamics in violent domestic relationships, which is said to involve a build up of tension culminating in an ‘acute battering incident’ followed by remorse and the honeymoon phase which leads back into the start of the cycle.30 The significance of the cycle for issues of criminal responsibility is that the woman may be able to anticipate the onset of abuse when this would not be apparent to an external observer.

2.10 However, the cycle of violence theory has been criticised on the basis that it fails to indicate how long a cycle or any of its phases is expected to last; and the underlying research does not necessarily demonstrate the relevant pattern in the relationships of battered persons who kill.31

Further, there are concerns about the necessity of a complete cycle before a victim can be said to fit within its confines.32

26 Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 339-340.

27 Law Commission, Partial Defences to Murder: Final Report (2004) [3.99].28 Lenore E Walker, The Battered Woman (1979) and The Battered Woman Syndrome

(1984).29 For a concise review of the concept of Battered Woman Syndrome see Lauren K

Fernandez ‘Eighth Annual Review of Gender and Sexuality Law: Criminal Law Chapter: Battered Woman Syndrome’ (2007) 8 The Georgetown Journal of Gender and the Law 235, 236-238.

30 Lenore E Walker, The Battered Woman (1979) and The Battered Woman Syndrome (1984).

31 David L Faigman and Amy J Wright, ‘The Battered Woman Syndrome in the Age of Science’ (1997) 39 Arizona Law Review 67, 77-79.

32 See Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome’ (1999) 6 Psychiatry, Psychology and Law 23, 33 citing Ian Freckleton, ‘When Plight Makes Right – the Forensic Abuse Syndrome’ (1994) 18 Criminal Law Journal 29-49.

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2.11 BWS theory also suggests that those who are trapped in this cycle can develop ‘learned helplessness’. This state of mind explains the victim’s reaction (or lack of one) to the abuse. It is characterised by the battered woman feeling that she cannot control the abuse and becoming a powerless passive participant in the relationship, believing there is no alternative to its continuance.33 In some cases, the woman eventually resorts to violence as a way out of the relationship, in part because she lacks the capacity to see that leaving is an option, or to take the initiative even if she does recognise the option.

2.12 The ‘learned helplessness’ aspect of BWS has attracted trenchant criticism.34 For example, Kathleen Ferraro has noted incongruence between this supposed trait and the phenomenon of battered persons taking the active response of killing their abusers.35

She points to research findings that many battered persons indeed fight back, either physically or emotionally and display assertiveness and strength in their personalities, countering the perception of total submissiveness.36 Moreover, it has been argued that reliance on BWS suggests that battered persons who respond with violence are somehow psychologically dysfunctional or maladjusted, whereas the reality is that they are usually responding rationally to their situation.37

2.13 Even if BWS does accurately describe the experiences and motivations of some battered women or battered persons, its original formulation has been criticised as typifying battered persons and their reactions to abuse in an overly restrictive way.38 One writer explains that ‘the syndrome is not composed of specific psychological traits that are either unique to a battered woman or present in all battered women.’39 Even the original theorist of BWS, Lenore Walker, noted that not all women who are battered have BWS.40 The use of the word ‘syndrome’ has also been subject to criticism.41 Similarly controversial is the limitation of BWS as a construct which may misrepresent women’s experiences as victims of violence. A criticism is that it is based primarily on the

33 See a discussion of the concept of learned helplessness in Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome’ (1999) 6 Psychiatry, Psychology and Law 23, 28-29.

34 David L Faigman and Amy J Wright, ‘The Battered Woman Syndrome in the Age of Science’ (1997) 39 Arizona Law Review 67, 78. See also Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome’ (1999) 6 Psychiatry, Psychology and Law 23, 33-34.

35 Kathleen J Ferraro, ‘The Words Change, But the Melody Lingers: The Persistence of the Battered Woman Syndrome in Criminal Cases Involving Battered Women’ (2003) 9 Violence Against Women 110, 113.

36 Kathleen J Ferraro, ‘The Words Change, But the Melody Lingers: The Persistence of the Battered Woman Syndrome in Criminal Cases Involving Battered Women’ (2003) 9 Violence Against Women 110, 113-120.

37 See, for example, Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, 'Defending Battered Women on Trial: The Battered Woman Syndrome and Its Limitations' (1992) 16 Criminal Law Journal 369, 384–5.

38 See, for example, Mary Ann Dutton, ‘Validity of "Battered Woman Syndrome’ in Criminal Cases Involving Battered Women’, 17, in U.S. Department of Justice and US, Department of Health and Human Services, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding Section 40507 of the Violence Against Women Act (1996).

39 Kathleen J Ferraro, ‘The Words Change, But the Melody Lingers: The Persistence of the Battered Woman Syndrome in Criminal Cases Involving Battered Women’ (2003) 9 Violence Against Women 110, 112.

40 Lenore E Walker, The Battered Woman Syndrome (1984).41 See discussion by Kirby J in Osland v The Queen (1998) 197 CLR 316, [161]; by

Goodyear-Smith, ‘Re Battered Woman's Syndrome’ [1997] New Zealand Law Journal 436-438, [1998] New Zealand Law Journal 39; and by McDonald, ‘Battered Woman Syndrome’ [1997] New Zealand Law Journal 436, 437.

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experiences of Caucasian women from a particular social background, who have a ‘passive’ response to the violence that confronts them.42

2.14 In the result, BWS has effectively been rejected as a general explanation of why battered persons sometimes respond by killing or using other serious violence against their abusers.43 In light of this rejection, a defence against criminal liability should presumably focus on the predicament faced by the victim of a seriously abusive relationship rather than on issues of mental impairment.

Brain injuries and psychological impairments

2.15 Quite apart from any effects of BWS, exposure to domestic violence can result in brain injuries and psychological impairments that might be relevant to criminal responsibility.

2.16 For example, some victims can suffer brain injuries as a ‘consequence of being hit in the head with fists or other objects; having one’s head pushed against a hard object...violent shaking; or attempted asphyxiation.’44 These types of injury can result in such problems as cognitive confusion, depression, increased anxiety and impulsivity.45

2.17 Battered persons are also at risk of depression, anxiety disorders, substance abuse problems and post-traumatic stress disorder.46 Some of these problems can manifest in symptoms such as flashbacks, fear, hyper vigilance and dissociation.47 Evan Stark suggests that it is the control aspect of domestic violence (rather than the physical abuse) that contributes to these psychological effects.48

2.18 Under the Queensland Criminal Code, there is a general defence of insanity,49 and also a partial defence of diminished responsibility for cases that would otherwise be murder.50 These defences are available to mentally impaired victims of abusive relationships on the same terms as they are to other categories of defendants.51

Reasonableness of the reaction

42 Osland v The Queen (1998) 197 CLR 316, [161], per Kirby J, citing Stubbs and Tolmie, ‘Race, Gender, and the Battered Woman Syndrome: An Australian Case Study’ (1995) 8 Canadian Journal of Women and the Law 122. See also Suzanne Beri, ‘Justice for Women Who Kill: A New Way?’ (1997) 8 Australian Feminist Law Journal 113, 123.

43 Mary Ann Dutton, ‘Validity of "Battered Woman Syndrome” in Criminal Cases Involving Battered Women’, in U.S. Department of Justice and US, Department of Health and Human Services, The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding Section 40507 of the Violence Against Women Act (1996) Part I, 17.

44 Martha E Banks, ‘Overlooked but Critical: Traumatic Brain Injury as a Consequence of Interpersonal Violence’ (2007) 8 Trauma, Violence and Abuse 290.

45 Martha E Banks and Ellyn Kaschak (eds), Women with Visible and Invisible Disabilities: Multiple Intersections, Multiple Issues, Multiple Therapies (2003) xxvi.

46 Edna B Foa, Michele Cascardi, Lori Zoellner, Nora C Feeny, ‘Psychological and Environmental Factors Associated with Partner Violence’ (2000) 1 Trauma, Violence and Abuse 67, 73.

47 Loring Jones, Margaret Hughes and Ulrike Unterstaller, ‘Post-Traumatic Stress Disorder in Victims of Domestic Violence: A Review of the Research’ (2001) 2 Trauma, Violence and Abuse 99.

48 Evan Stark, ‘Commentary on Johnson’s Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence’ (2006) 12 Violence Against Women 1019, 1022.

49 Criminal Code (Qld) s 27.50 Criminal Code (Qld) s 304A.51 These defences fall outside the scope of this discussion paper.

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2.19 When a person kills or inflicts other violence, it is usually required that there be reasonable grounds for any beliefs which are to provide a complete defence against criminal liability. For example, a defence of self-defence usually requires some belief about the danger faced and about the options for dealing with it, and also reasonable grounds for these beliefs.52

Perception of imminent danger

2.20 Exposure to the cycle of violence is often cited when considering whether the battered person who kills had a reasonable sense of imminent danger.53 Although this danger may be obvious when the killing occurs during a confrontation, it may be more difficult to understand why killing occurs when the violence or identifiable threat has abated or is apparently absent.54 However, the repeated pattern can sometimes allow a battered person to read cues and note changes in the abuser’s behaviour which signal the onset of escalating violence.55 Battered persons can then take decisive action for self preservation before the abuser is in a position to physically overpower them.56

2.21 It has been found, however, that sometimes abuse is unpredictable and does not appear to follow any pattern. Rather than rely on a particular point in the cycle at which time the reaction would be deemed reasonable, it has been argued that battered persons are continuously fearful for their lives and under constant threat.57 However, this reformulation has not been universally accepted.58

Measure of response

2.22 In addition to the theory of learned helplessness, the contrition stage and assurances of non-repetition by the abuser in the cycle of violence have been used to help explain why a battered person remains in the relationship.59

2.23 Research indicates many other reasons for staying or barriers to leaving the relationship. They include economic dependence on the abuser, isolation and fear for themselves and their family, coupled with the perceived inadequacy of the criminal justice system in providing protection.60 Leaving is not seen as a viable alternative given the risk of separation abuse which may result in serious injury or even death. This may be an accurate risk assessment.61

52 See eg R v Muratovic [1967] Qd R 15.53 David L Faigman and Amy J Wright, ‘The Battered Woman Syndrome in the Age of

Science’ (1997) 39 Arizona Law Review 67, 73.54 Rebecca 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, 178.

55 Julie Blackman ‘Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill’ (1986) 9 Women’s Rights Law Reporter 227, 229 as cited by Wilson J in R v Lavallee [1990] 1 SCR 852.

56 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 272.

57 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 266; Rebecca Bradfield ‘Is Near Enough Good Enough? Why isn’t Self-Defence Appropriate for the Battered Woman?’ (1998) 5 Psychiatry, Psychology and Law 71, 77.

58 Gail Hubble, ‘Self-Defence and Domestic Violence: a Reply to Bradfield’ (1999) 6 Psychiatry, Psychology and Law 51, 52.

59 Lenore E Walker, The Battered Woman Syndrome (1984) 95-96 as discussed by Wilson J in R v Lavallee [1990] 1 SCR 852.

60 Jinseok Kim and Karen A Gray, ‘Leave or Stay?: Battered Women’s Decision After Intimate Partner Violence’ (2008) 23 Journal of Interpersonal Violence 1465.

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2.24 Further, the battered person may reasonably feel forced to use a weapon for self-preservation, even when the abuser is unarmed, because of the inequality of power in the relationship and often the inequality of bodily strength compared to the abuser.62

2.25 Admittedly, in some instances of prolonged abuse, cognitive processes may become so distorted that other options than using violence are not recognised. In such cases, there may be no reasonable grounds for believing that the violence used is necessary for self-preservation. In other cases, however, the perception that there are no other viable options for self-preservation may be either correct or at least reasonable under the circumstances.

2.26 Moreover, persons facing threats to their lives or safety must sometimes make quick decisions. Assessments of the reasonableness of their beliefs and actions must be made from the standpoint of the position in which they were placed. As it has often been said in the context of the general law of self-defence, persons fearing for their lives or safety cannot be expected to ‘weigh to a nicety’ the exact measure of action necessary for self-preservation.63

C. Diversity in abusive relationships

2.27 Originally, BWS theory envisaged female victims of abuse. Much of the research available about victims of violence supports the contention that the majority of victims of intimate partner or domestic violence are indeed women.64 However, in recent times this stereotype has been challenged. Battered persons can be of either gender.65 They may be in a heterosexual, homosexual66 or familial67 relationship with the abuser.68 This has been recognised in Queensland’s domestic violence legislation, which is gender and age neutral. Further, the legislation provides that domestic violence may occur in spousal, intimate personal, familial and informal care relationships.69 61 Zoe Rathus, ‘There Was Something Different About Him That Day: The Criminal

Justice System’s Response To Women Who Kill Their Partners’ (Brisbane: Women’s Legal Service, 2002) 4.


63 See, for example, Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 662–3.

64 See, for example, in the Australian context, the summary of findings from the Australian Bureau of Statistics, Personal Safety Survey (2005) 9, 11. In the Queensland context note the statistics available from the Queensland Police Service DV Index, cited in Crime and Misconduct Commission, Policing Domestic Violence in Queensland: Meeting the Challenges (2005) 35.

65 Jane Mulroney and Carrie Chan, ‘Men as Victims of Domestic Violence’, Australian Family Clearing House < Domestic and Family Violence Clearinghouse Topic Paper (2005). http://www.adfvc.unsw.edu.au/PDF%20files/Men_as_Victims.pdf> at 21 February 2009.

66 Carrie Chan, ‘Domestic Violence in Gay and Lesbian relationships’, Australian Domestic and Family Violence Clearinghouse Topic Paper (2005). Australian Domestic and Family Clearing House <http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/Gay_Lesbian.pdf> at 21 February 2009; Simone, ‘ “Kill(er) man was a Battered Wife” the application of Battered Woman Syndrome to Homosexual Defendants: The Queen v McEwen’ (1997) 19 Sydney Law Review 230.

67 Natasha Bobic, ‘Adolescent Violence towards Parents’, Australian Domestic and Family Violence Clearinghouse Topic Paper (2004). Australian Domestic and Family Clearing House < http://www.adfvc.unsw.edu.au/PDF%20files/adolescent_violence.pdf> at 21 February 2009.

68 See discussion by Kirby J in Osland v The Queen (1998) 197 CLR 316, [161].69 Domestic and Family Violence Protection Act 1989 (Qld) s 11A.

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2.28 Yet, research findings on violence responses by battered women against their male abusers may not apply to all victims of abusive relationships. For example, recent research findings report that male victims of domestic violence are less likely to be afraid of their partner.70 Further, male victims will generally not be disadvantaged in body size and strength relative to their abusers in the way that female victims are. This is supported somewhat by research revealing that male victims are less likely to suffer injury when they are subjected to domestic violence.71 There may also be differences in the levels of control exercised by males and females in abusive relationships.72 2.29 Similarly, researchers urge caution in extending their findings about women’s experiences of seriously abusive heterosexual pairings to victims in homosexual relationships.73 For example, factors such as the decreased support structures for these victims, and the increased sense of isolation may impact upon their perceived lack of alternatives.74

2.30 Thus, research in more recent times has recognised a diversity of experiences of battered persons. The design of any defence against criminal liability needs to allow for this diversity.

Questions:

What is it about battered persons that does/does not require legislative intervention to protect them in the event that they kill or use other serious violence against their abusers?

If battered persons should only be afforded protection when they have been subjected to serious abuse, what level/type and/or amount of domestic violence meets this standard?

70 Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 340; L Kevin Hamberger, ‘Men’s and Women’s Use of Intimate Partner Violence in Clinical Samples: Towards a Gender-Sensitive Analysis’ (2005) 20 Violence and Victims 131, 139.

71 L Kevin Hamberger, ‘Men’s and Women’s Use of Intimate Partner Violence in Clinical Samples: Towards a Gender-Sensitive Analysis’ (2005) 20 Violence and Victims 131, 137.

72 See Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 343, for the position that there is a difference, that is, women are less likely to cite control as a motivation for their abuse. But compare the findings in Richard B Felson and Maureen C Outlaw, ‘The Control Motive and Marital Violence’ (2007) 22 Violence and Victims 387.

73 Marilyn McMahon, ‘Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome’ (1999) 6 Psychiatry, Psychology and Law 23, 42.

74 Appendix A to New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report 73 (2001) 84.

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CHAPTER 3: A COMPLETE DEFENCE?3.1 This chapter examines options for a complete defence against criminal liability for the victims of abusive relationships who, in fear and desperation, use violence against their abusers. It discusses the choice between a separate defence, specifically geared to the circumstances of battered persons, and a revised general defence of self-defence. It also reviews the various models for a separate defence and a revised general defence which have been advanced in law reform proposals or legislative action elsewhere.

3.2 The circumstances of persons who kill their abusers have generated this discussion paper. It might be questioned, however, whether there is any good reason for confining a complete defence to cases of murder. In Chapter 1, this question was asked: If such a complete defence is to be made available, should it be restricted to persons who kill and are facing charges of murder, or should it be made available in relation to any charges of criminal violence? In the following discussion, it is assumed that a complete defence would extend to any use of violence, including attempts to kill and also the infliction of non-fatal injuries.

A. A separate defence

Arguments for and against a separate defence

3.3 A common argument in favour of a separate complete defence is that, for either formal or cultural reasons, the general defence of self-defence cannot provide an appropriate measure of protection against criminal liability for battered persons who kill their abusers in fear and desperation. In particular, the general defence of self-defence has historic associations with confrontational circumstances, typically a brawl, in which one person responds spontaneously to present or imminent violence by another person. Such circumstances may fit male patterns of responsive force more closely than female patterns. As was discussed in Chapter 2, female patterns of responsive violence often stem more from fears about the course of a relationship than about a particular incident. Any particular incident which triggers the violence may even appear relatively trivial when considered in isolation; its significance may lie in what it portends for the continuation of the pattern of the relationship.

3.4 In some jurisdictions, there are formal restrictions on the defence of self-defence which severely limit its availability. In Queensland, the formal restrictions on the defence are particularly stringent.75 The Criminal Code requires that the action be taken in response to an assault. Moreover, in cases where the response involves force intended or likely to cause death or grievous bodily harm, the assault must be of such a nature as to cause reasonable apprehension of death or grievous bodily harm and the person must believe, on reasonable grounds, that there is no other way of averting death or grievous bodily harm.76

3.5 Among the most common reasons for opposing a separate complete defence are that it would be unfair to single out particular groups for special exemptions from liability and that there are models for reforming the general defence of self-defence in ways which would provide appropriate protection from liability. It has also been argued that a separate defence might be perceived as providing a lesser degree of exoneration than that provided by the general defence.

75 Criminal Code (Qld) s 271.76 Criminal Code (Qld) s 271(2).

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Question:

If a complete defence is to be made available to battered persons who use violence against their abusers in fear and desperation, would the better general approach be: (1) to create a separate defence for such persons or (2) to make reforms to the general law of self-defence?

Models for a separate defence

3.6 Various versions of a separate complete defence have been proposed in previous examinations of this issue. Some versions dispense with any link with the traditional defence of self-defence; others retain some kind of connection.

3.7 The Victorian Law Reform Commission has set out three models for a fully separate defence dispensing with any formal link to self-defence: ‘the battered woman syndrome model’, ‘the self-preservation model’ and ‘the coercive control model’.77

3.8 Under the battered woman syndrome model, the issues would simply be whether the accused suffered from the syndrome and whether it caused her to act in the way she did.78 The use of such a model would require a focus on the mental state of the accused rather than the circumstances which drove her to violence. However, for the reasons discussed in Chapter 2, the idea of a ‘battered woman syndrome’ has lost appeal as a general explanation for why the victims of abuse sometimes respond with lethal violence. The idea of basing a defence on the syndrome has therefore gathered little support. The Victorian Law Reform Commission gave more detailed attention to the other two models for a fully separate defence.

3.9 Under the self-preservation model, the victim of abuse acts for reasons of self-preservation. The Victorian Law Reform Commission discussed a proposal by Suzanne Beri for such a defence in a form making it available to:

Any woman causing the death of a person:a) with whom she has, or had, a familial or intimate relationship; andb) who has subjected her to racial, sexual and/or physical abuse and intimidation to the extent that she:

i) honestly believes there is no protection nor safety from the abuse; andii) is convinced the killing is necessary for her self preservation.79

3.10 The Commission noted that this particular proposal was open to the objection that it uses an entirely subjective test of the woman’s own honest beliefs, without reference to the reasonableness of such beliefs.80 It would, however, be a relatively easy matter to amend the proposal to require reasonable grounds for believing that there is neither protection nor safety from the abuse and also for being convinced that killing is necessary for self-preservation. It would also be relatively easy to recast the option in gender-neutral terms. For example, the defence could be available to:

77 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003) 154-158.

78 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003 [4.162].

79 Suzanne Beri, ‘Justice for Women Who Kill: A New Way?’ (1997) 8 Australian Feminist Law Journal 113, 114. Beri’s original proposal was for a partial defence to murder: see New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report No 73 (2001) [71]. However, the Victorian Law Reform Commission discussed it as a model for a complete defence.

80 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003) [4.168].

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Any person causing the death of another person:a) with whom the person has, or had, a familial or intimate relationship; andb) who has subjected the person to racial, sexual and/or physical abuse and intimidation to the extent that the person:

i) honestly believes, on reasonable grounds, there is no protection nor safety from the abuse; andii) is convinced, on reasonable grounds, that the killing is necessary for self preservation.

3.11 Under the coercive control model, the victim of abuse acts not for reasons of self-preservation but simply to escape a coercive relationship. The Victorian Law Reform Commission set out the option in this form:

(1) The defence of coercive control is available to a person who:(a) kills in circumstances where the deceased maintains coercive control through a course of conduct which includes any of the following:

(i) social isolation(ii) physical or sexual violence or threats thereof, to the accused or another;(iii) psychological or emotional violence, including threats or attacks on pets, or threats to report the accused to immigration authorities;(iv) stalking (as defined in Crimes Act 1958 s 21A);(v) public humiliation;(vi) deprivation of material necessities; and

(b) the killing is necessary to escape the circumstances of coercive control.81

3.12 The Commission questioned whether the use of lethal force should be permitted simply to escape a violent relationship or whether a threat of serious injury or death should be required.82 In addition, the Commission noted the difficulty that this option introduces new and vague terms. In particular, the fundamental concept of ‘coercive control’ is alien to our current law.83

3.13 In contrast, the self-preservation model has obvious links to the traditional defence of self-defence and might be regarded as an extension of that defence. Indeed in some versions of the model, an express connection to self-defence has been retained.

3.14 In the Western Australian Report of the Chief Justice’s Taskforce on Gender Bias, a proposal was made for a new form of self-defence which would operate in conjunction with the traditional form:

Conduct is carried out by a person in self-defence if the person is responding to a history of personal violence against herself or himself or another person and the person believes that the conduct was necessary to defend himself or herself or that other person against the violence.84

81 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003) [4.171]. The option was created in conjunction with Associate Professor Jenny Morgan.



84 Report of the Chief Justice’s Taskforce on Gender Bias (WA) (1994) 214, quoted in New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report No 73 (2001) 27-28, and in Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003) [4.166] n 664.

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This proposal, which is close to the self-preservation model, uses the term ‘self-defence’. No reference is made to any particular degree of abuse or violence that the person must suffer. The person must only believe that the force used is necessary for defence against violence, not that it is necessary for self-preservation. As in the proposal by Suzanne Beri, a wholly subjective test of the accused’s own belief is used. However, it would be a simple matter to insert the phrase ‘on reasonable grounds’ after the term ‘believes’.

3.15 The Victorian Law Reform Commission considered and rejected all these proposals for a separate defence. It concluded that a better approach would be to reform the general law of self-defence so that it takes adequate account of the experiences of women, who comprise most victims of abusive relationships.85 Nevertheless, the Commission also recommended that the law of self-defence include a specific provision providing guidance on the factors to be taken into account in cases involving abusive relationships. In effect, this proposal is for a ‘half-way house’ between a reformed defence of self-defence and a separate defence. A version of such a scheme has now been incorporated in the Crimes Act 1958 (Vic).

3.16 In Victoria, the provisions of the Crimes Act 1958 on self-defence deal only with the homicides. For a complete defence to murder, the person must believe the conduct is necessary for defence against the infliction of death or really serious injury and there must be reasonable grounds for this belief.86 For a defence to manslaughter, the person must believe the conduct is necessary for defence against some violence and there must be reasonable grounds for this belief.87 Section 9AH(1) provides that, in circumstances where ‘family violence’ is alleged:

…a person may believe, and may have reasonable grounds for believing,that his or her conduct is necessary - (a) to defend himself or herself or another person…even if-

(c) he or she is responding to a harm that is not immediate;(d) his or her response involves the use of force in excess of the force involved

in the harm or threatened harm.

‘Family violence’ is defined broadly in this context to mean physical, sexual and psychological abuse.88 It is provided that a single act may amount to abuse and that a pattern of abuse may comprise or include acts that, when viewed in isolation, might appear minor or trivial.89

3.17 In addition to clarifying the elements of self-defence for cases of family violence, s 9AH(3) of the Crimes Act 1958 (Vic) also identifies kinds of evidence that may be relevant in such cases for determining whether a person believed it to be necessary to use the force and whether there were reasonable grounds for the belief.90 The specified factors include some which relate to the experiences of the particular accused: the history of the relationship; the cumulative effect of the violence; and any social, cultural or economic factors that impact on the person.91 Also included are factors pertaining to the general characteristics of violent relationships: their general nature and dynamics; their psychological effect on the persons involved; and social or economic factors that impact on the persons involved.92

85 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.26].86 Crimes Act 1958 (Vic) ss 9AC-9AD.87 Crimes Act 1958 (Vic) s 9AE.88 Crimes Act 1958 (Vic) s 9AH(4)(a)-(c).89 Crimes Act 1958 (Vic) s 9AH(5)(a)-(b).90 Crimes Act 1958 (Vic) s 9AH(2)-(3).91 Crimes Act 1958 (Vic) s 9AH(3)(a)-(c).92 Crimes Act 1958 (Vic) s 9AH(3)(d)-(f). Cultural factors are specified in those that may

be relevant with respect to the particular accused but not with respect to the general

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3.18 In its report which recommended the inclusion of such a scheme in the Crimes Act 1958 (Vic), the Victorian Law Reform Commission made explicit reference to a general formulation suggested by Zoe Rathus in a submission to a review of the Queensland Criminal Code:

In determining the reasonableness of the beliefs of the defendant the personal history of the defendant and the history of any relationship between the defendant and the person against whom force is used and the effects of that relationship upon the defendant are relevant.93

3.19 The Law Reform Commission of Western Australia has also considered the creation of a separate defence and concluded that it would be better to reform the general law of self-defence to make it more useful to the victims of abusive relationships.94 The Commission took the view that the interests of battered persons could be accommodated within a revised general defence of self-defence based on three elements: a belief on reasonable grounds that it was necessary to use force; a belief that the act was necessary for defence; and the act being a reasonable response to the circumstances as the person perceived them, on reasonable grounds, to be.95 In the Commission’s view, the law of homicide should be of general application. Moreover, the Commission was concerned that a separate defence might detract from an understanding of the danger faced by some victims of abusive relationship and of the defensive purpose of their actions: ‘Such a defence might give the impression that such persons did not act genuinely in self-defence, only in a special category of it.’96

3.20 The Law Reform Commission of Western Australia also recommended, however, a series of amendments to the Evidence Act 1906 (WA) for cases where the defence of self-defence is raised. Some pertained to the judge’s directions to the jury in all cases where self-defence is raised: that threatened harm need not be immediate provided that it was inevitable and that a response might be reasonable even though not proportionate.97 Other recommendations pertained specifically to opinion evidence about domestic violence. It was proposed that:

• …opinion evidence about domestic violence may be led where relevant to assist in the determination of: (a) the reasonableness of the accused’s belief that it was necessary to use force to defend himself, herself or another person; or (b) whether the act was a reasonable response to the circumstances as the accused perceived them to be.98

• …a person may give opinion evidence about domestic violence where their qualifications in that field are based solely on their experience. 99

impact of violent relationships.93 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.32].94 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final

Report, Report No 97 (2007) 289. 95 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final

Report, Report No 97 (2007) 172.96 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final




Report, Report No 97 (2007) 294.

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The point of the latter recommendation was to allow workers in the field of domestic violence to give opinion evidence, as well as psychologists.100

3.21 In the result, amendments to the elements of the defence of self-defence in the Criminal Code (WA) were enacted. The defence now reflects the thrust of the Commission’s proposals, although it is expressly provided that a person may use defensive force against ‘a harmful act that is not imminent’.101 However, the proposed amendments to the Evidence Act 1906 (WA) have not been enacted. In Western Australia, law reform has been pursued through the general provisions on self-defence rather than through any special provisions respecting the victims of abusive relationships.

Questions:

If a separate defence is to be made available to battered persons who use violence against their abusers, what kind of conditions should attach to it? Should it: (i) be confined to victims who act for reasons of self-preservation or (ii) be available to persons who act to escape certain kinds of relationship?

If a separate defence is to be made available to victims of abusive relationships who believe that the violence is necessary for self preservation (or for escaping certain kinds of relationship), should it be restricted to cases where there are reasonable grounds for this belief?

Should the defence include a specific provision or provisions providing guidance on the factors to be taken into account in assessing whether a belief in the necessity of the action is genuine and reasonable? What kinds of guidance would be appropriate?

Should opinion evidence about abusive relationship be admissible where relevant? In particular, should it be admissible from persons whose expertise arises from experience rather than formal qualifications?

B. A revised defence of self-defence

3.22 Under the current law of Queensland, the term ‘self-defence’ applies only to defence of oneself and a separate provision extends rights of self-defence to defence of other persons.102 In some other jurisdictions, the term ‘self-defence’ includes defence of another person. The following discussion will be concerned only with battered persons defending themselves, although some of the provisions to be analysed also apply to defence of other persons.

3.23 The thrust of modern law reform initiatives with respect to the defence of self-defence in Australia and New Zealand has been to loosen the traditional constraints on the defence and ensure that it is available who people who use violence in fear and desperation for which there are reasonable grounds. These initiatives take the defence in a markedly different direction from the tradition which is still reflected in the current provision of the Queensland Criminal Code.

Self-defence in Queensland

100 See also Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [4.130]-[4.131].

101 Criminal Code (WA) s 248.102 Criminal Code (Qld) s 273.

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3.24 The provisions of the Queensland Criminal Code on self-defence have often been criticised by the judiciary for their complexity and obscurity. For example, in R v Gray, McPherson JA said:

As it has been said on more than one occasion in the past, the provisions of s 271 are by no means a model of clarity or simplicity.103

3.25 The Code establishes three forms of the defence of self-defence, all of which provide a complete defence.

• Section 271(1) specifies the conditions for the use of non-lethal force (that is, force not intended or likely to cause death or grievous bodily harm) in self-defence against an unprovoked assault.

• Section 271(2) specifies the conditions for the use of lethal force (that is, force intended or likely to cause death or grievous bodily harm) in self-defence against an unprovoked assault.

• Section 272(1) specifies the conditions for the use of force in self-defence against a provoked assault.

Sections 271(1) and 271(2) provide that ‘it is lawful for’ the person to use the force. In contrast, s 272(1) provides that the person ‘is not criminally responsible for’ using the force.

3.26 The provision which is most relevant to victims of abusive relationships who use serious violence against their abusers is s 271(2):

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

3.27 However, some features of the defence of self-defence in Queensland limit its value:

• In all its forms, the defence requires that there have been an assault. An assault may take the form of a threat or attempt to apply force as well as a use of force. Nevertheless, the condition requires that the defender be responding to some specific action of an assailant. The defence is not available to someone who acts in anticipation of an attack or a series of attacks which has not materialised into an assault at the relevant time, even where there has been a previous history of violence.

• Where the force used was intended or likely to cause death or grievous bodily harm, the person must have believed on reasonable grounds that preservation from death or grievous bodily harm cannot otherwise be achieved. This might focus inquiry on the narrow question of whether there was any other option for escaping the danger, regardless of the risks associated with the other option. If there was such an option, the defence might be excluded even though the use of lethal force was a reasonable choice in all the circumstances, including the risks attaching to the other option.

• The issue of the reasonableness of a person’s response to abuse could become confused with the issue of its proportionality to the violence involved in that abuse. This is particularly relevant to victims of abusive relationships who kill their

103 (1998) 98 A Crim R 589, 592.

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abusers. The disparities of physical strength between male and female partners may force the weaker person to resort to a weapon for defence, with the risk of using force that might unfairly be judged excessive.

3.28 These features of the defence in Queensland reflect the common law on self-defence. There have, however, been reform initiatives elsewhere aimed at recasting the defence in forms more favourable to battered persons who use violence against their abusers. The predicaments faced by battered persons have been a prominent consideration in these initiatives.

The requirement for an assault

3.29 Many jurisdictions have now abandoned the requirement for an assault in the defence of self-defence. Some jurisdictions have gone so far as to expressly provide that the danger need not be imminent.

3.30 In the Model Criminal Code of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General,104 the trigger for the defence is merely that the person must believe the conduct is necessary to defend someone:

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:(a) to defend himself or herself or another person…and the conduct is a reasonable response in the circumstances as he or she perceives them.105

This provision has been adopted in those jurisdictions using the Model Criminal Code,106

and also in New South Wales.107

3.31 To similar effect is s 48 of the New Zealand Crimes Act 1961:

Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.108

The New Zealand Law Commission has noted that, while s 48 is ‘on its face gender neutral and liberal’, the requirement for the use of force to be reasonable may be applied in a restrictive way, as including a requirement for an imminent danger.109 Such a requirement would be little different from the requirement for an assault in the Queensland Criminal Code. In the view of the New Zealand Law Commission, the focus should be on the inevitability of the danger rather than its imminence. The Commission has recommended that s 48 be amended ‘to make it clear that there can be fact

104 Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992).

105 Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992) s 10.4.

106 Criminal Code (Cth) s 10.4; Criminal Code (ACT) s 42; Criminal Code (NT) s 43BD.107 Crimes Act 1900 (NSW) s 418.108 Section 46 of the Criminal Code (Tas) is in virtually the same terms: ‘A person is

justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use.’

109 New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report No 73 (2001) [22].

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situations in which the use of force is reasonable where the danger is not imminent but is inevitable’.110 This recommendation has not yet been implemented.

3.32 Victoria and Western Australia have enacted express provisions declaring that the danger need not be immediate (Victoria) or imminent (Western Australia).

3.33 The statutory scheme in the Victoria Crimes Act 1958 applies only to homicides. For a complete defence to either murder or manslaughter, the person must believe the conduct is necessary for defence and there must be reasonable grounds for this belief.111

For a defence to murder, there must be reasonable grounds for believing that the force is necessary for defence against the infliction of death or ‘really serious injury’. For cases of ‘family violence’, s 9AH (1)(c) provides that a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary even if ‘he or she is responding to a harm that is not immediate’.

3.34 In Western Australia, the declaration that the danger need not be imminent applies to all offences. In 2008, an amendment to the Criminal Code (WA) introduced a new scheme for self-defence. The scheme uses the term ‘harmful act’, meaning an act that is an element of an offence.112 Section 248(2) provides that ‘[a] harmful act done by a person is lawful if the act is done in self-defence….’ Section 248(4) defines self-defence in this way:

A person’s harmful act is done in self-defence if – (a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and (b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and (c) there are reasonable grounds for those beliefs.

Questions:

Should the law of self-defence in Queensland be amended to remove the requirement for an assault?

If the requirement for an assault is removed, should there also be a declaration that the danger need not be imminent?

Reasonable force and restrictions on using lethal force

3.35 Special restrictions on using lethal force have been avoided in most of the recent reform proposals and initiatives.

3.36 In the Model Criminal Code, the requirements are the same for all levels of force: the person must believe the conduct is necessary to defend someone and the conduct must be ‘a reasonable response in the circumstances as he or she perceives them’.113

This means that the availability of some other option for escaping the danger does not necessarily exclude the defence. The defence is still available if the option of using lethal force was reasonable in the circumstances as they were perceived. This formulation of


111 Crimes Act 1958 (Vic) ss 9AC, 9AE.112 Criminal Code (WA) s 248(1).113 Criminal Law Officers Committee of the Standing Committee of Attorneys-General,

Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992) s 10.4.

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the defence has been adopted in those jurisdictions using the Model Criminal Code,114

and also in New South Wales.115

3.37 There are similarly broad provisions in other jurisdictions. In New Zealand and Tasmania a person can use ‘such force as, in the circumstances as he believes them to be, it is reasonable to use’.116 In South Australia, the conditions for the defence are: (a) a genuine belief that the conduct was ‘necessary and reasonable’ and (b) reasonable proportionality, ‘in the circumstances as the defendant genuinely believed them to be’, ‘to the threat that the defendant genuinely believed to exist’.117 In Western Australia, the person must believe that the act is necessary and the act must be ‘a reasonable response by the person in the circumstances as the person believes them to be’, with reasonable grounds for both those beliefs.118 In contrast, Victoria requires, for a defence to murder, reasonable grounds for believing that the force is necessary for defence against the infliction of death or ‘really serious injury’. However, for a defence to manslaughter, it is sufficient that there simply be reasonable grounds for believing the conduct was necessary for self-defence.119

3.38 Some of these jurisdictions have adopted a test of the person’s own belief for the circumstances of danger but have required that the person’s response to the perceived danger be reasonable. This distinguishes between matters of perceived fact and matters of judgment, with a subjective approach for the former and an objective approach for the latter. However, in Victoria and Western Australia, the standard of objective reasonableness applies to all elements of the defence. This may fit better with the principles of culpability underlying the Queensland Criminal Code. Unlike the common law, the Queensland Criminal Code generally requires that a mistake of fact be reasonable if it is to provide a defence.120 Another approach would be to use a subjective test for a defence against an offence like murder, which requires subjective intent as one of its elements, but an objective test for offences like manslaughter which can be committed through criminal negligence.121

Questions:

Should the law of self-defence in Queensland be amended to remove the requirement that, for using lethal force, there must be a reasonable belief that the person can not otherwise escape death or grievous bodily harm?

Would it be appropriate to adopt the Model Criminal Code requirements that the person must believe the conduct is necessary and that it must be a reasonable response in the circumstances?

If there is to be a requirement that the response be reasonable in the circumstances, should the circumstances simply be such as the person believes them to be or should there be a requirement for the belief to be held on reasonable grounds?

Reasonable force and proportionality

3.39 Reports in several jurisdictions have noted the risk that victims of abuse who kill their abusers will be disadvantaged by confusion between two separate issues: the issue of whether the force used in self-defence was reasonable under the circumstances and 114 Criminal Code (Cth) s 10.4; Criminal Code (ACT) s 42; Criminal Code (NT) s 43BD.115 Crimes Act 1900 (NSW) s 418.116 Crimes Act 1961 (NZ) s 48; Criminal Code (Tas) s 46.117 Criminal Law Consolidation Act 1935 (SA) s 15.118 Criminal Code (WA) s 248(4)(b)-(c).119 Crimes Act 1958 (Vic) ss 9AC-9AE.120 Criminal Code (Qld) s 24. 121 This approach is taken in the American Model Penal Code, arts. 3.04(1), 3.09(2).

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the issue of whether it was proportionate to the violence involved in the abuse.122

Attention has been drawn to the particular risk of disadvantage for women who, facing disparities of physical strength with male abusers, use weapons in self-defence.

3.40 South Australia is unusual among Australian jurisdictions in having an express requirement for proportionality when force is used in self-defence. However, the requirement is expressed in terms which provide some protection against unfairness. Section 15(1)(b) of the Criminal Law Consolidation Act 1935 makes it a condition for self-defence that:

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.

However, s 15B tempers this condition by providing:

A requirement under this Division that the defendant's conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.

3.41 Section 9AH(1) of the Victorian Crimes Act 1958 affords more protection. It addresses the problem by providing that, in cases of family violence:

… a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary - (a) to defend himself or herself or another person… even if -… (d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm.

3.42 The Law Reform Commission of Western Australia agreed with the Victorian Law Reform Commission about the importance of distinguishing between reasonableness and proportionality. However, the Western Australia Commission proposed tackling the issue by legislating for judicial directions to juries rather than by qualifying the substantive elements of the defence.123 It proposed amending the Evidence Act 1906 (WA) to require judges to direct juries:

that a response may be a reasonable response for the purpose of self-defence under s 248 of the Criminal Code (WA), even though it is not a proportionate response.

This proposal has not yet been implemented.

Questions:

Should the law of self-defence in Queensland be amended to provide that a response to abuse may be reasonable even though it involves the use of force that exceeds or is not proportionate to the force involved in the abuse?

122 Law Commission, Partial Defences to Murder: Final Report (2004), [4.20]; Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.65- 3.71]; Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 165-166.

123 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 166, 168-169.

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http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s14.html#defendant


http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s171.html#threat



http://www.austlii.edu.au/au/legis/sa/consol_act/clca1935262/s171.html#threat


If the law is to declare that there is no necessary connection between the reasonableness of a response and its proportionality, should this objective be achieved by an amendment to the elements of the defence or by a separate provision relating to judicial directions to juries?

The Queensland Taskforce on Women and the Criminal Code

3.43 In 2000, the Queensland Taskforce on Women and the Criminal Code presented its report.124 The Taskforce was unable to agree on recommended changes to the law of self-defence. The Taskforce did, however, set out a draft provision for a revised defence, in the event that changes were to be introduced:

A person is not criminally responsible for an offence if the conduct constituting the offence was carried out by him or her in self-defence or in defence of another.

Conduct is carried out in self-defence or in defence of another where such conduct was a reasonable response to the circumstances as the person believed those circumstances to be taking into account the personal history (and attributes) of the person.

For the purpose of determining whether a person was acting in self-defence or the defence of another, there is no rule of law that such defences are negated if-(a) the person is responding to a history of personal violence against himself or herself or another rather than an isolated attack/assault;(b) the person has not pursued options other than the use of force; or(c) the person used a weapon against an unarmed person.

Where a person is responding to a history of personal violence against himself or herself or another, consideration may be given to the cumulative effect of such violence in assessing whether the force used was reasonable.

This draft provision reflects the same principles that have driven law reform in other jurisdictions: in particular, that there should be no requirement for an assault or imminent threat, that the use of violence against an abuser maybe reasonable even though there may have been other options, and that reasonable force need not be proportionate.

Questions:

Does the draft provision of the Taskforce on Women and the Criminal Code present a useful model for the reform of the law of self-defence?

Does the draft provision present a useful model for a defence for battered persons who use violence against their abusers? Does it need amendment in any particulars?

C. Justification or excuse

The distinction between justification and excuse

3.44 Most of the provisions of the Queensland Criminal Code dealing with defences do not actually use the term ‘defence’. Instead, most Code provisions dealing with defences state either that ‘it is lawful for’ a person to engage in the conduct or that a person ‘is not criminally responsible for’ the conduct. The provisions of s 271 the Code on self-defence

124 Taskforce on Women and the Criminal Code, Women and the Criminal Code (2000) unpaginated.

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against an unprovoked assault use the formulation of ‘it is lawful for’.125 Examples of the use of ‘is not criminally responsible for’ include the provisions on accident, mistake of fact, emergency and insanity, as well as self-defence against a provoked assault.126

3.45 It has been suggested that the phrase ‘it is lawful for’ indicates a justification, whereas the phrase ‘a person is not criminally responsible for’ indicates merely an excuse.127 The term ‘justification’ tends to be used in the context of conduct which, although perhaps harmful in some respects, is not itself regarded as wrong. In contrast, the term ‘excuse’ tends to be used in the context of conduct that is regarded as wrongful, even though there may be extenuating factors which affect the legal response to such conduct.

3.46 The distinction between justifications and excuses could be relevant when calculating the right to use force in self-defence. Under the Code, the trigger for the right to use force is an ‘unlawful assault’.128 It should, however, be permissible to use defensive force against a person who is not criminally responsible for an assault because of, for example, a mistake of fact or because of mental disorder amounting to insanity. As long as the assailant’s defence is merely an excuse and not a justification, there is an ‘unlawful assault’ even though there is no criminal responsibility for it.129

3.47 The distinction between justifications and excuses could be significant both for the battered persons and also for their abusers. For the battered persons who respond with violence, the label ‘it is lawful for’ might be viewed as providing total exoneration for their actions whereas the label ‘is not criminally responsible for’ might be taken to signal that they had acted wrongfully even though they would not be punished for what they did.

3.48 For the abusers, the difference between the battered person’s responsive violence being justified and excused might concern more than moral labels. An abuser might be taken to have the legal right to resist violence for which the victim was merely ‘not criminally responsible’, unless there is some contrary provision. On the other hand, the abuser might have no right to resist a victim’s ‘lawful’ violence. However, whether or not such implications should be drawn has been controversial in criminal law theory.

Developments in other jurisdictions

3.49 Nomenclature varies greatly in jurisdictions which have reformed their law of self-defence so that it no longer requires an unlawful assault:

• In New Zealand and Tasmania, a person is ‘justified’ in using reasonable force.130

• In Western Australia, it is ‘lawful’ to use force when the conditions of the defence are met.131

125 Criminal Code (Qld) ss 274–278. 126 Criminal Code (Qld) ss 23-25, 27, 272. 127 R v Prow [1990] 1 Qd R 64, 68.128 Criminal Code (Qld) ss 271-272.129 See Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 663–4;

White v Conway (unreported, No 37 of 1991, QCA). The authorities on this issue, however, have not always been consistent. In Gray v Smith (1996) 87 A Crim R 454, it was assumed that an assault for which there would be a defence of provocation would not be an unlawful assault for the purposes of the law of self-defence.

130 Crimes Act 1961 (NZ) s 48; Criminal Code (Tas) s 46.131 Criminal Code (WA) s 248(2).

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• In New South Wales, a person ‘is not criminally responsible’ when the conditions for the defence are met.132 This formulation substantially follows that of the Model Criminal Code.133

• The Northern Territory has two separate provisions on defensive force. Offences against the person occurring on or after a certain date are subject to the formulation of the Model Criminal Code.134 Earlier offences are subject to a provision which combines both sets of terms: defensive conduct is ‘justified’ and the person who engages in it ‘is not criminally responsible’.135

• South Australia partly avoids the problem by using neutral terminology. South Australia specifies conditions under which it is ‘a defence’ to a charge.136

• Victoria also partly avoids the problem by using neutral terminology. The Crimes Act 1958 (Vic) provides that a person ‘is not guilty’ under the specified conditions.137

3.50 There is also some variation in the rights of an abuser to resist the use of defensive force by a victim. Some jurisdictions expressly exclude or limit rights of resistance; others do not:

• Western Australia appears to exclude any right of resistance where the victim’s force falls within the scope of the defence of self-defence. In Western Australia, the defence of self-defence makes conduct ‘lawful’ and the defence is excluded entirely for force used in defence against lawful conduct.138

• South Australia excludes the defence of self-defence where a person is resisting another person who is responding to an unlawful act by the first person. However, an exception is made where there is a genuine belief that the response is unlawful.139

• In New Zealand and Tasmania, where a person is ‘justified’ in using defensive force, there is no special provision with respect to resisting lawful force. Conceivably, the use of the term ‘justified’ could be held to exclude any right of resistance.

• Under the Model Criminal Code, the defence of self-defence is excluded if the person is responding to lawful conduct and knows that is lawful.140 This formulation has been followed in Victoria, the Australian Capital Territory and the

132 Crimes Act 1900 (NSW) s 418.133 Criminal Law Officers Committee of the Standing Committee of Attorneys-General,

Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992) s 10.4(1). The Queensland Taskforce on Women and the Criminal Code also used the phrase ‘is not criminally responsible’: see above, [3.43].

134 Criminal Code (NT) s 43BD.135 Criminal Code (NT) s 29(1).136 Criminal Law Consolidation Act 1935 (SA) s 15(1).137 Crimes Act 1958 (Vic) ss 9AC, 9AE.138 Criminal Code (WA) s 248(5).139 Criminal Law Consolidation Act 1935 (SA) s 15(4).140 Criminal Law Officers Committee of the Standing Committee of Attorneys-General,

Model Criminal Code, Chapters 1 and 2: General Principles of Criminal Responsibility (1992) s 10.4(4).

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Northern Territory.141 However, defensive force in these jurisdictions is not made ‘lawful’.

• In New South Wales, the Crimes Act 1900 expressly provides that the defence is not excluded merely because force is used in response to conduct which is lawful or conduct for which there is no criminal responsibility.142

3.51 Where the legislation does not specifically determine rights of resistance, they presumably depend on the application of the relevant general test of reasonableness for using defensive force. It might well be thought unreasonable for an abuser, having made the victim fear for his or her life, to use lethal force in resisting the victim’s response. On the other hand, if the response can be resisted without harming the other person - for example, by knocking a weapon out the victim’s hand - it might conceivably be reasonable to do so.

Questions:

If there is to be a separate defence for victims of abusive relationships who use violence against their abusers, or if the general defence of self-defence is to be revised to fit the circumstances of such persons, should the defence be expressed as a justification, as an excuse, or in neutral terms?

Under what conditions, if any, should an abuser be entitled to resist violence used by a victim in response to the abuse?

Should the issue of whether an abuser should be entitled to resist a victim’s violence be governed by a specific provision or should it be left to a general requirement such as that any use of defensive force be ‘reasonable’?

141 Crimes Act 1958 (Vic) ss 9AC, 9AE; Criminal Code 2002 (ACT) s 42; Criminal Code (NT) ss 29(5), 43BD(3)(b).

142 Crimes Act 1900 (NSW) s 422.

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CHAPTER 4: A PARTIAL DEFENCE TO MURDER?4.1 This chapter examines how a partial defence to murder might be developed to assist the victims of abusive relationships who kill their abusers in fear and desperation but who do not meet the conditions for a complete defence against criminal liability. For example, they may have believed that it was necessary to use a lethal degree of force but lacked reasonable grounds for this belief. Successfully raising a partial defence would make the person liable for a lesser offence such as manslaughter. This would remove the stigma of a conviction for murder and also enable sentencing discretion to be exercised.

4.2 The chapter discusses the arguments made for establishing either a separate partial defence, specifically geared to the circumstances of battered persons, or a general defence of excessive force in self-defence. It also reviews the various models for a separate defence and a general defence of excessive force which have been advanced in law reform proposals or legislative action elsewhere.

A. A separate defence

Arguments for and against a separate partial defence

4.3 Among the most common reasons for favouring a separate partial defence to murder are that, even if the conditions for a complete defence are not met, it would be a particularly grave injustice to convict someone of this offence who kills his or her abuser in genuine fear and desperation. In the absence of any more general partial defence which would be applicable, the development of a separate defence is essential. Moreover, a separate defence could be geared to the specific circumstances of battered persons and could highlight why a conviction of some lesser offence such as manslaughter is more appropriate.

4.4 Among the most common reasons for opposing a separate partial defence to murder are that the introduction of sentencing discretion for murder would allow a court to take account of all the degrees of culpability in murder cases. There would therefore be no need to single out persons who kill their abusers for a separate defence. This was the reason given for opposing the defence by the New Zealand Law Commission.143

However, the option of introducing sentencing discretion for murder has been rejected by the Queensland Government.144 Moreover, it can be argued that there should be a separate partial defence even if sentencing discretion were to be introduced, in order to relieve the person of the stigma associated with a conviction of murder.

4.5 Another argument made for opposing a separate partial defence to murder is that it would be better to amend the general law of self-defence by introducing a partial defence for cases of excessive force. The argument for such a defence is usually made with respect to cases where a person genuinely believes in the necessity of using lethal force but lacks reasonable grounds for this belief. Such a defence has recently been introduced in several Australian jurisdictions.145 Successfully raising the defence leads to


144 See Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) [1.4], specifying the matters taken into account by the Attorney-General in referring the review to the Commission.

145 Crimes Act 1900 (NSW) s 421; Criminal Law Consolidation Act 1935 (SA) s 15(2); Crimes Act 1958 (Vic) s 9AD; Criminal Code (WA) s 248(3).

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a conviction of the offence of manslaughter in New South Wales, South Australia and Western Australia, and to a conviction of the offence of ‘defensive homicide’ in Victoria. The partial defence could be used by battered persons who kill their abusers but it has broader application.

Questions:

If a partial defence to murder is to be made available to battered persons who use violence against their abusers in fear and desperation, would the better general approach be: (1) to create a separate defence for such persons or (2) to make reforms to the general law of self-defence?

If a partial defence to murder is introduced, should the lesser offence be manslaughter or some new offence such as ‘defensive homicide’?

Models for a separate partial defence

4.6 Several proposals have been made for a separate partial defence for battered persons who kill their abusers.

4.7 The proposal developed by Suzanne Beri, which the Victorian Law Reform Commission used to illustrate ‘the self-preservation model’ for a complete defence,146

was originally advanced as a proposal for a partial defence.147 The proposal was for a partial defence to be available to:

Any woman causing the death of a person:a) with whom she has, or had, a familial or intimate relationship; andb) who has subjected her to racial, sexual and/or physical abuse and intimidation to the extent that she:

i) honestly believes there is no protection nor safety from the abuse; andii) is convinced the killing is necessary for her self preservation.148

This proposal maintains a link with the defence of self-defence because of the requirement for a belief that the killing is necessary for self-preservation. However, there is no formal connection to the terms of the defence of self-defence.

4.8 As was noted in Chapter 3, this proposal could be easily be expressed in gender-neutral language by using ‘person’ instead of ‘woman’, ‘she’ and ‘her’.149 In the context of a complete defence, the Victorian Law Reform Commission questioned whether it was appropriate to use a wholly subjective test, without any requirement for the person’s beliefs to be reasonable.150 However, this objection would have less force in the context of a partial defence to murder alone. In this context, a subjective test of a person’s honest beliefs should be more acceptable.

4.9 In the result, the Victorian Law Reform Commission preferred to recommend a partial defence of excessive force in self-defence rather than a separate partial defence.151

146 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003), [4.166].

147 See New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report No 73 (2001) [71]. See the discussion above, [3.9]-[3.10].

148 Suzanne Beri, ‘Justice for Women Who Kill: A New Way?’ (1997) 8 Australian Feminist Law Journal 113, 114.

149 See above, [3.9].150 Victorian Law Reform Commission, Defences to Homicide: Options Paper (2003)

[4.168].

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However, as was discussed in Chapter 3,152 the scheme subsequently enacted in the Crimes Act 1958 (Vic) represents a ‘half-way house’ between a separate defence and a revised defence of self-defence. It includes a provision respecting the kinds of evidence that may be relevant in cases of ‘family violence’ for determining whether a person using force believed it to be necessary for self-defence.153 This provision applies to both the complete defence of self-defence and also the partial defence of excessive force. As was noted in connection with the complete defence, the specified factors include some which relate to the experiences of the particular accused and some to the general characteristics of violent relationships.154 4.10 The English Law Commission has made elaborate proposals for a revised law of provocation, taking the defence in a direction which could assist victims of abusive relationships.155 The Commission would shift the focus of this partial defence away from its traditional concern with loss of self-control. The revised defence would be available where the person responded in an understandable way to either a justifiable sense of having been wronged or a fear of serious violence or a combination of these factors. This partial defence could be recast as a separate defence rather than as an extended version of the defence of provocation.

4.11 The Law Commission set out its proposals in the following way, although it stressed that it was putting forward principles rather than a statutory formula:

(1) Unlawful homicide that would otherwise be murder should instead be manslaughter if the defendant acted in response to

(a) gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or(b) fear of serious violence towards the defendant or another; or(c) a combination of (a) and (b); and

a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way.

(2) In deciding whether a person of the defendant’s age and of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account all the circumstances of the defendant other than matters (apart from his or her age) which bear only on his or her general capacity for self-control.

(3) The partial defence should not apply where the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or the defendant acted in pre-meditated desire for revenge.

(4) A person should not be treated as having acted in premeditated desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear.

151 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.103]-[3.112].

152 See above, [3.15]-[3.17]. 153 Crimes Act 1958 (Vic) s 9AH(2)-(3).154 Crimes Act 1958 (Vic) s 9AH(3)(d)-(f). See above, [3.17].155 Law Commission, Partial Defences to Murder: Final Report (2004) [3.168]. See also

Law Commission, Partial Defences to Murder: Final Report (2004) [3.168]. See also Law Commission, Murder, Manslaughter and Infanticide, LC No 304 (2006) [5.1]-[5.82].

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(5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.

4.12 This partial defence could be recast as a separate defence by deleting the reference to ‘gross provocation’ in clause (1), but retaining what is within the brackets of this clause, and also by amending clause (3) to refer to ‘conduct’ rather than ‘provocation’.

4.13 In addition, the reference to words as well conduct might need revision in the context of Queensland. The Queensland Law Reform Commission has recommended that, although the partial defence of provocation should be retained, it should not be possible to base the defence upon provocation wholly or substantially in the form of words, except in circumstances of an extreme or exceptional character.156 If this amendment were to be made, any other partial defence should perhaps include a similar restriction on basing the defence on words.

4.14 The British Government has endorsed some of the Law Commission’s proposals while rejecting others.157 In a Consultation Paper, the British Government proposed separating the two limbs of the defence into distinct partial defences and confining the defence for killing in response to a justifiable sense of being seriously wronged to ‘exceptional circumstances’.158 It also proposed strengthening the link with the traditional defence of provocation by retaining the requirement for loss of self-control.159 However, its view was that the term ’provocation’ should be deleted altogether.160

4.15 The aspect of fear of serious violence in the English proposals is particularly relevant to battered persons who kill their abusers. However, the most innovative feature may be the treatment of combinations of anger and fear in the original proposals of the Law Commission. Recognising that these emotions may operate together and that their effects may be difficult to separate, clause (1)(c) of the Law Commission’s proposals provides that the defence may be based on a combination of justifiably feeling seriously wronged and fearing serious violence. Moreover, although clause (3) excludes the defence where the defendant acted in pre-meditated desire of revenge, clause (4) provides that a person should not be treated as having acted in pre-meditated desire for revenge merely because the person acted in anger as well as fear. These features of the Commission’s scheme disappear in the proposals of the British Government to separate the two limbs of the defence into distinct partial defences.

4.16 In arguing that anger and fear should be combined in one defence, the Law Commission cited what the Royal College of Psychiatrists had said in response to an earlier Consultation Paper. The College denied that the emotions of anger and fear are

156 Queensland Law Reform Commission, Report No. 64: A review of the excuse of accident and the defence of provocation (2008), Recommendation 21-2. The Commission also proposed that it should not be possible to base the defence upon provocation in the form of the deceased’s choice about a relationship, except in circumstances of an extreme or exceptional character; and that the onus of proof with respect to the defence should be reversed, with the defendant being required to establish it on a balance of probabilities: Recommendations 21-3, 21-5.

157 Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008).

158 Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008) [24], [34].

159 Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008) [26-37]. The British Government has proposed the elimination of any requirement for the loss of self-control to be ‘sudden’: ibid [37].

160 Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008) [34].

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distinct in ‘medical reality’.161 The view of the College was that ‘there is medical, practical and moral justification for the proposed combination’.162

4.17 A crucial element in the proposals of the Law Commission is that the sense of having been seriously wronged must be justifiable. The Commission said: ‘It is the justification of the sense of outrage which provides a partial excuse for their responsive conduct.’163 The Commission was anxious to ensure that grievances about blameless or trivial conduct by the victim do not provide a foundation for the defence. The proposed test of justifiability is objective. It would be for the jury, not the defendant, to decide whether the sense of being seriously wronged was justifiable.164

4.18 The defence proposed by the Law Commission retains a substantial link to the traditional defence of provocation through the requirement that ‘a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way’. This is an objective test which is functionally equivalent to a requirement for a belief or response to be ‘reasonable’ in a case of self-defence. An objective test has been excluded in Australian statutory versions of the partial defence of excessive force in self-defence. An objective test has, however, traditionally been viewed as an essential restriction where a defence can be grounded on anger rather than fear, as in the traditional defence of provocation. This could be an important consideration in choosing between a partial defence of excessive force and a partial defence along the lines recommended by the Commission.

4.19 The Victorian Law Reform Commission accepted the views of the English Law Commission on the connection between fear and anger but rejected its approach to designing partial defences.165 The argument of the Commission was that, while the existence of anger should not preclude reliance on a defence of self-defence, the focus of that defence should remain on whether the accused honestly believed that it was necessary to do what was done.166

Questions:

If a separate partial defence to murder is to be made available to battered persons who kill their abusers, what kind of conditions should attach to it?

Should the conditions for the defence confine it to killing for reasons of self-preservation, with the person fearing death or at least serious violence?

Should the conditions for the defence extend it to some cases where the person acts in response to anger or combined fear and anger, particularly cases where the anger arises from a justifiable sense of having been seriously wronged?

Is there a role in the defence for an objective component, such as a requirement that an ordinary person in the circumstances of the defendant might have reacted in the same or a similar way?

B. Excessive force in self-defence

161 Law Commission, Partial Defences to Murder: Final Report (2004) [3.99].162 Law Commission, Partial Defences to Murder: Final Report (2004) [3.98].163 Law Commission, Partial Defences to Murder: Final Report (2004) [3.59].164 Law Commission, Partial Defences to Murder: Final Report (2004) [3.70]-[3.71].165 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004)

[3.83]-[3.85].166 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.85].

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Developments in law reform

4.20 An alternative to a separate defence for the victims of abusive relationships would be a partial defence of excessive force in self-defence. Such a defence would reduce murder to manslaughter in cases where the person made an unreasonable mistake about the necessity of using lethal force.

4.21 The defence has never been included in the Queensland Criminal Code. In Queensland, the use of objectively excessive force will exclude the defence of self-defence even if there was a genuine belief that the degree of force used was necessary for self-preservation.167

4.22 At one time, the High Court of Australia recognised a partial defence of excessive force as a matter of common law.168 The defence operated to reduce the offence from murder to manslaughter in cases where there was an honest but unreasonable belief in the necessity of killing in self-defence. The defence was eventually repudiated by the High Court in Zecevic v Director of Public Prosecutions (Vic),169 because of supposed difficulties in instructing juries. Subsequently, a recommendation against the defence was made by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, on the ground that the concept of excessive self-defence is inherently vague.170 However, a partial defence of excessive force in self-defence has now been introduced by legislation in several Australian jurisdictions: New South Wales,171 South Australia,172 Victoria,173 and Western Australia.174 The New Zealand Law Commission has recommended that the defence not be introduced, but only because it has proposed sentencing discretion for murder as the best way to accommodate variations in culpability for intentional killing.175

4.23 Several reports in the United Kingdom have recommended the introduction of a partial defence.176 In its most recent inquiry, the Law Commission made a contrary recommendation. However, this was because it was also recommending a revised partial defence of provocation, incorporating responses to fear as well as provocation, which it believed would cover relevant cases of excessive force.177 The proposals of the Law Commission for the defence of provocation would give it considerably wider scope than it would have under the proposals of the Queensland Law Reform Commission.178

Models for a partial defence of excessive force

167 Criminal Code (Qld) s 283.168 R v Howe (1958) 100 CLR 448; Viro v The Queen (1978) 141 CLR 88.169 [1987] HCA 26; (1987) 162 CLR 645.170 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-

General, Discussion Paper: Model Criminal Code, Chapter 5: Fatal Offences against the Person (1998) 113.

171 Crimes Act 1900 (NSW) s 421.172 Criminal Law Consolidation Act 1935 (SA) s 15(2).173 Crimes Act 1958 (Vic) s 9AD.174 Criminal Code (WA) s 248(3).175 New Zealand Law Commission, Some Criminal Defences with Particular Reference

to Battered Defendants, Report No 73 (2001) [52]-[69]. 176 Criminal Law Revision Committee, Fourteenth Report: Offences against the Person

(1980) Cmnd 7844, [288]; Report of the Select Committee on Murder and Life Imprisonment (1988-89) HL 78-1[89].

177 Law Commission, Partial Defences to Murder: Final Report (2004) [3.168], [4.4], [4.25]-[4.31]. See also the proposals in Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law, Consultation Paper CP 19/08 (2008).

178 See Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008), Recommendations 21-1 – 21-5.

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4.24 The precise terms of the defence of excessive force vary between jurisdictions but the ingredients are very similar. An offence that would otherwise be murder is reduced to a lesser offence, (‘defensive homicide’ in Victoria and manslaughter in the other jurisdictions) where two conditions are met:

• The person must have believed that the conduct was necessary for self-defence (which is why a conviction for murder is considered inappropriate).

• There must have been a failure to meet some standard of reasonableness (otherwise the person would be entitled to a complete acquittal rather than a reduction of the offence):

o in New South Wales and Western Australia, where ‘the act is not a reasonable response’ in the circumstances as they are perceived;

o in South Australia, where the conduct was not ‘reasonably proportionate to the threat that the defendant genuinely believed to exist’;

o in Victoria, where the person ‘did not have reasonable grounds for the belief’ that it was necessary to kill.

4.25 In New South Wales, South Australia and Western Australia, the terms of the partial defence confine it to unreasonable misjudgements about an appropriate response to danger. In Victoria, however, the broad terms of the defence could also permit its use with respect to unreasonable mistakes about whether danger was present and in what form. The Law Reform Commission of Western Australia has recommended against extending the defence in this way.179 Its reasoning is that the defence should be limited to cases where there was ‘an initial lawful right to use defensive force’; otherwise ‘irrational fears and prejudices’ might form the basis for the defence.

4.26 Some of the Australian jurisdictions which have introduced a partial defence also have forms of discretionary sentencing for murder. In New South Wales and Victoria, there is simply liability to life imprisonment.180 In Western Australia, there is a presumption of life imprisonment but the offender is liable for up to 20 years imprisonment if a life sentence would be clearly unjust and the person is unlikely to be a threat to the safety of the community on release.181

4.27 The argument most commonly made for a partial defence may be that lesser culpability can then be taken into account in the exercise of sentencing discretion. However, it might also be argued that the defence should be recognised in the interests of fair labelling, recognising that cases where excessive force is believed to be necessary involve an initial right to use some force and an intention to act in a lawful way.182 This distinguishes the defence of excessive force from the defence of provocation. The Law Reform Commission of Western Australia has also made the argument that excessive force is distinguishable because ‘the circumstances giving rise to the defence always demonstrate reduced culpability’.183 Indeed, Victoria and Western Australia have now both abolished the partial defence of provocation to murder while introducing the partial defence of excessive force.


180 Crimes Act 1900 (NSW) s 19A; Crimes Act 1958 (Vic) s 3.181 Criminal Code (WA) s 279. 182 New Zealand Law Commission, Some Criminal Defences with Particular Reference

to Battered Defendants, Report 73 (2001) [67]; Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.104]; Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 181-82.


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4.28 The introduction of a partial defence of excessive self-defence could carry the risk of depriving defendants of complete acquittals that might otherwise have been achieved. The Victorian Law Reform Commission and the Law Reform Commission of Western Australia acknowledged this risk.184 Ultimately both Commissions concluded that, given their proposals for revising the complete defence, the risk did not justify rejecting the partial defence.

Questions:

Should the law of self-defence in Queensland be amended to introduce a partial defence of excessive force in self-defence which would reduce the offence of murder to a lesser offence such as manslaughter?

If a partial defence to murder is introduced, should it be confined to cases of excessive force, where it was believed that the force used was necessary and, although there were no reasonable grounds for this belief, it was lawful to use some force?

Should a partial defence to murder extend to cover any cases where it was believed that the force used was necessary, including cases where there was no entitlement to use force as well as cases of excessive force?

C. The onus of proof

4.29 If a new partial defence to murder is to be introduced, the onus of proof must be assigned to one side or the other. The Queensland Criminal Code currently includes two partial defences to murder: diminished responsibility and provocation. The Code expressly provides that the onus of proof with respect to diminished responsibility lies on the defence.185 Under common law principles, the standard of proof is the balance of probabilities. For provocation, however, the Code is silent. Common law principles therefore apply with respect to the onus of proof as well as the standard. The result is that, when there is evidence putting the defence in issue, the prosecution carries the onus to disprove it beyond reasonable doubt.186 The onus of proof for the partial defence of excessive force in self-defence has not been reversed in any of the Australian jurisdictions which have already introduced this defence.

4.30 The Queensland Law Reform Commission has now recommended that the onus of proof for the defence of provocation should be reversed, so that the defendant must prove the defence on the balance of probabilities.187 Four reasons were given:

• Firstly, the prosecution will very often not be in a position to contest the factual detail of the claim as the only other potential witness will have been killed by the defendant.

• Secondly, if the onus of proof is placed on the party who wishes to rely on provocation, it is likely to result in more clearly articulated claims of provocation.

184 Victorian Law Reform Commission, Defences to Homicide: Final Report (2004) [3.109]-[3.110]; Law Reform Commission of Western Australia, Review of the Law of Homicide: Final Report, Report No 97 (2007) 179-80.

185 Criminal Code (Qld) s 304A(2).186 See Hart v R (2003) WASCA 213, 27 WAR 441, [69], and the authorities cited

therein.187 Queensland Law Reform Commission, A review of the excuse of accident and the

defence of provocation, Report No 64 (2008) Recommendation 21-5.

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• Thirdly, if the onus of formulating the claim of provocation is placed on the party who wishes to rely on the claim, the trial judge may have a greater capacity to act as a gatekeeper to prevent unmeritorious claims being advanced before juries.

• Fourthly, a strong analogy exists to the partial defence of diminished responsibility.188

4.31 The first and second of these reasons would also apply to battered persons who kill their abusers. In most cases, the only other potential witness to the details of what happened will be dead and reversing the onus of proof will force the survivor to clearly articulate the relevant claims. It is not clear, however, that the third and fourth reasons would justify reversing the onus of proof for either a separate partial defence for battered persons or a partial defence of excessive force in self-defence.

4.32 The Commission suggested that its recommendation about provocation might be in accordance with general principle.189 The Commission also said: ‘It is difficult to see why a different rule should apply to each of the partial defences.’190 It might, however, be argued that the best justification for reversing the onus of proof for diminished responsibility and provocation lies in considerations of policy rather than principle and that different considerations of policy would apply to the partial defences under consideration here.

4.33 Diminished responsibility and provocation have been contentious defences, with concerns sometimes being expressed about their potential for causing unmeritorious reductions from murder to manslaughter. The reversal of the onus of proof for these defences could be viewed as a policy decision aimed at diminishing a known risk of unmeritorious defences. In contrast, the effect of either a separate partial defence for battered persons or a defence of excessive force in self-defence is yet to be assessed. In the absence of experience with these defences, it could be argued that the best approach is to adhere to the general principle that the onus of proof with respect to all issues of criminal responsibility lies with the prosecution.191

4.34 In addition to any considerations of general principle, reversing the onus of proof for a partial defence would cause practical difficulties in any case where it was raised as an alternative to a complete defence. Different onuses of proof for the two defences would require the judge to give very careful instructions to the jury.

Question:

If either a separate partial defence to murder or a partial defence of excessive force in self-defence is to be introduced, should the onus of proof lie with the prosecution or the defence?

188 Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) [18.19]-[18.22].

189 Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) [18.13]-[18.14].


191 Woolmington v DPP [1935] AC 462, 481-2.

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CHAPTER 5: EVIDENTIARY ISSUES

5.1 A victim of a seriously abusive relationship who has been charged with an offence of violence and seeks to rely on either a proposed new defence or an amended defence of self-defence may need to introduce:

• evidence about the relationship or the history of abuse, either provided orally by themself and/or by other witnesses or in documentary form; and/or

• evidence about domestic violence generally or its impact on the battered person in particular.

This chapter examines the possible application of the rules of evidence in Queensland to such evidence.

5.2 Chapter 3 discussed Victorian legislation which incorporates evidentiary provisions into its relevant substantive legislation.192 This chapter will not canvas changes to substantive legislation in Queensland. Instead, it considers whether ancillary provisions should be introduced into the Evidence Act 1977 (Qld). Stubbs and Tolmie argue that Australian law regarding the application of evidence about battering and its effects is inconsistent and confusing.193 Appropriate legislative provisions could advance consistency and clarity.

A. Relationship evidence5.3 Section 132B(2) of the Evidence Act 1977 (Qld) expressly contemplates the possible admission of relationship evidence for particular offences including murder, manslaughter and assault:

Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.194

As was noted in a recent Queensland Court of Appeal decision, s 132B(2) ‘leaves open for decision in each case the question whether particular evidence of that general kind is relevant’.195

5.4 Section 132B(2) was introduced despite criticism that it was circular and did ‘nothing more than restate the existing [common] law’.196 The common law provides that evidence can be admitted to show the nature of the relationship between a complainant and an accused.197

192 Section 9AH(3) Crimes Act 1958 (Vic). See above, [3.16]-[3.17].193 Julie Stubbs and Julia Tolmie, ‘Falling Short of the Challenge? A Comparative

Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melbourne University Law Review 709, 748.

194 Evidence Act 1977 (Qld) s 132B(1) provides that the section applies to offences defined in the Criminal Code, chapters 28 to 30. However, even though s 132B of the Evidence Act 1977 (Qld) only applies to particular violent offences, this does not automatically render relationship evidence inadmissible for other offences: R v PAB [2008] 1 Qd R 184, [28].

195 R v Lester [2008] QCA 354 (Unreported, Fraser JA, Mackenzie AJA and Douglas J, 14 November 2008) [39] (Fraser JA).

196 Zoe Rathus, Rougher Than Usual Handling: Women and the Criminal Justice System (2nd ed, 1994) 139; Taskforce on Women and the Criminal Code, Women and the Criminal Code (2000) unpaginated.

197 R v Walker [2007] QCA 446 (Unreported, McMurdo P, Jerrard JA and Daubney J, 19 December 2007) [22] (McMurdo P) citing various decisions, including Wilson v The

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5.5 If the evidence is considered relevant it may still be excluded on other grounds.198

The most pertinent exclusionary rule to the situation of battered persons would be the rule against hearsay. Some evidence as to the history of the relationship may not rely on hearsay.199 At times, however, the presentation of hearsay may be necessary. For example, a battered accused may attempt to call witnesses (family members, other acquaintances or service providers) to present evidence of what either the accused or the abuser has told them about the nature of their relationship. Such statements will be subject to the usual rules of evidence, possibly resulting in exclusion.

5.6 The Queensland Taskforce on Women and the Criminal Code raised, as an option for discussion, the idea of legislating for a jury direction to counter myths about domestic violence in cases where a domestic violence history forms a background to the offence. In response, the judges of the Supreme Court of Queensland expressed concern about prescriptive legislation on jury directions.200

Question:Do the current Queensland rules of evidence adequately allow for the introduction of evidence of a relationship or a history of abuse?

B. Expert Evidence5.7 Expert evidence about the impact of abuse on a battered person has been accepted in Australia and specifically in Queensland since the 1990s.201

5.8 If self-defence is raised, Queensland Judges may now rely on guidance from the Supreme and District Court Benchbook. The Benchbook provision on s 271(2) of the Criminal Code states:

In ‘Battered Woman Syndrome’ cases, expert evidence may be adduced as to the defendant’s heightened awareness of danger, and the jury should be directed to its relevance to the defendant’s belief as to the risk of grievous bodily harm or death. (General directions as to evidence of experts will be appropriate in such instances). Equally, the actual history of the relationship may require direction as going to the existence of reasonable grounds for any belief; Osland (1998) 197 CLR 316 at 337.202

5.9 Stubbs and Tolmie argue that expert evidence has generally relied upon the historical construct of BWS and how it impacts upon a battered person’s pathology.203 With that frame of reference, the relevant experts have usually been drawn from the realm of psychology or psychiatry.204 However, the same authors recognise that at least one decision in Queensland has allowed admission of expert evidence from a social worker.

Queen (1970) 123 CLR 334, Barwick CJ 337-340; Menzies J with whom McTiernan and Walsh JJ agreed 344.

198 R v Babsek [1998] QCA 116 (Unreported, Moynihan J, Davies and McPherson JJA, 2 June 1998) 5 (Moynihan J).

199 For example witnesses may have directly observed altercations between the battered person and their abuser.

200 Taskforce on Women and the Criminal Code, Women and the Criminal Code (2000) unpaginated.

201 Although in these decisions the references were to battered women’s/battered wife syndrome, BWS was first considered in South Australia in R v Runjanjic; R v Kontinnen (1991) 56 SASR 114, then in Queensland in R v Babsek [1998] QCA 116 (Unreported, Moynihan J, Davies J and McPherson JJA, 2 June 1998) 5 (Moynihan J), and by the High Court in Osland v The Queen (1998) 197 CLR 316.

202 Queensland Courts, Supreme and District Court Benchbook (at 28 February 2009) No 86A.2, footnote 3.

203 Julie Stubbs and Julia Tolmie, ‘Battered Women Charged With Homicide: Advancing the Interests of Indigenous Women’ (2008) 4 Australian and New Zealand Journal of Criminology 138, 138, 145-146.

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The social worker testified about the nature of domestic violence generally, avoiding resort to psychological characteristics of battered persons.205 Nevertheless, the Queensland Court of Appeal has expressly declined to rule on the admissibility of this kind of evidence when it has had an opportunity to do so.206

5.10 As part of its recommendation to reform the general law of self defence,207 the Law Reform Commission of Western Australia proposed a series of amendments to the Evidence Act 1906 (WA). One of its proposals was that ‘…a person may give opinion evidence about domestic violence where their qualifications in that field are based solely on their experience’.208 The point of this recommendation was to allow workers in the field of domestic violence to give opinion evidence, as well as psychologists.209

Question:Do the current Queensland rules of evidence adequately provide for the introduction of general evidence about domestic violence and/or opinion evidence particular to the accused’s experience of domestic violence?

204 Julie Stubbs and Julia Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melbourne University Law Review 709, 730.

205 Julie Stubbs and Julia Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ (1999) 23 Melbourne University Law Review 709, 730 referring to the case of R v Gadd (Unreported, Supreme Court of Queensland, Moynihan J, 27 March 1995).

206 In R v Kina [1993] CA No 221 (Unreported, Fitzgerald P, Davies and McPherson JJA, 29 November 1993) 36 (Fitzgerald P and Davies JA).

207 See above, [3.20].208 Law Reform Commission of Western Australia, Review of the Law of Homicide: Final

Report, Report No 97 (2007) 294.209 See also Victorian Law Reform Commission, Report No 94: Defences to Homicide:

Final Report (2004) [4.130]-[4.131].

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CHAPTER 6: DIRECTIONS FOR LAW REFORM

A. Reforms in other Australian jurisdictions

6.1 In modern times, the law of defensive force has been subject to reforms in all Australian jurisdictions except Queensland. Aspects of these reforms were analysed in Chapters 3 and 4. The reforms have been driven partly by concern about how the law should respond when the victims of serious abuse respond by using violence against their abusers. They extend to all measures of defensive force, except in Victoria where they are confined to homicide. In New South Wales,210 South Australia,211 Victoria,212 and Western Australia,213 the reforms encompass both the complete defence of self-defence and a partial defence of excessive force. In Tasmania,214 the Australian Capital Territory,215 and the Northern Territory,216 they are confined to the complete defence.

The complete defence of self-defence

6.2 Common features to the reform initiatives respecting the complete defence are:

• An attempt to respond to the predicament of battered persons who use violence against their abusers through amendments to the general law of self-defence rather than through the creation of any separate defence.

• A reformulation of the complete defence of self-defence so that a person using defensive force is protected against criminal liability,

o subject to the person believing the force used is necessary,o and subject to some objective test of reasonableness with respect to the

use of the force.217

• An objective test of reasonableness for the use of force which is expressed in general terms, except in Victoria. It must be a reasonable response in New South Wales, Western Australia, the Australian Capital Territory and the Northern Territory; it must be reasonably proportionate in South Australia; it must simply be reasonable in Tasmania.

• No specific restrictions on the use of a lethal degree of defensive force, except for a defence to murder in Victoria. In Victoria, a person who kills in self-defence has a complete defence to murder only where there were reasonable grounds for believing killing was necessary to avert death or ’really serious injury’. If there were reasonable grounds for believing that some, but not this degree, of force was necessary, manslaughter has been committed.

210 Crimes Act 1900 (NSW) ss 418-422.211 Criminal Law Consolidation Act 1935 (SA) ss 15,15B.212 Crimes Act 1958 (Vic) ss 9AC-9AH.213 Criminal Code (WA) s 248.214 Criminal Code (Tas) s 46.215 Criminal Code 2002 (ACT) s 42.216 Criminal Code (NT) s 43BD.217 Tasmania requires only that the use of the force be reasonable, dispensing with a

requirement for a belief in its necessity. This follows the model of s 48 of the New Zealand Crimes Act 1961.

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• No requirement that defensive force be used in response to an assault or a threat of immediate or imminent harm. In addition, Victoria and Western Australia have a specific provision to the effect that the defence may be available for self-defence against violence that is (in Victoria) not immediate or (in Western Australia) not imminent. In Victoria, this provision apples only to cases of ‘family violence’.

6.3 There are also some points of difference between the various schemes. These include:

• In New South Wales, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, the objective reasonableness of using the force is assessed on the circumstances as the person subjectively perceived them to be. In contrast, in Victoria and Western Australia, there must be reasonable grounds for any relevant belief.

• In South Australia and Victoria, there are specific provisions to the effect that a complete defence is not excluded merely because the person responds with greater force than that threatened or hitherto experienced. In Victoria, this specific provision applies only to cases of ‘family violence’.

• In New South Wales, the Australian Capital Territory and the Northern Territory, a person ‘is not criminally responsible’ when the conditions for the complete defence are met; in South Australia, the conditions prescribe ‘a defence’ to a charge; in Victoria, a person ‘is not guilty’ under the specified conditions; in Tasmania, a person who meets the conditions is ‘justified’ in using force; in Western Australia, it ‘is lawful’ to use force when the conditions are met.

The partial defence of excessive force

6.4 In addition to reforming the complete defence of self-defence, New South Wales, South Australia, Victoria and Western Australia have introduced of a partial defence (often called the defence of ‘excessive force’) against liability for murder where the killing was done in self-defence but the objective conditions for a complete defence are not met. The result of a successful defence is a conviction of manslaughter in New South Wales, South Australia and Western Australia and a conviction of defensive homicide in Victoria.

6.5 The defence of excessive force is available:

• in New South Wales and Western Australia, where ‘the act is not a reasonable response’ in the circumstances as they are perceived;

• in South Australia, where the conduct was not ‘reasonably proportionate to the threat that the defendant genuinely believed to exist’;

• in Victoria, where the person ‘did not have reasonable grounds for the belief’ that it was necessary to kill.

6.6 There is no reversal of the onus of proof for the defence in any jurisdiction.

B. Options for Queensland

6.7 An option for Queensland would be to follow the broad path of the reforms in other Australian jurisdictions. Their best features could be incorporated into Queensland law, together with any improvements which could be made.

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6.8 Another option for Queensland would be to develop a defence, or defences, partly or wholly separate from the general law of self-defence, in order to focus attention on the particular predicaments faced by the victims of abusive relationships.

6.9 The Victorian scheme could be viewed as effectively a form of partial separation. The primary thrust of the Victorian reforms has been to amend the general law of self-defence. However, the new scheme also includes a specific evidentiary provision respecting cases of ‘family violence’. Section 9AH(3) of the Crimes Act 1958 (Vic) provides a list of kinds of evidence which may be relevant, in cases of ‘family violence’, in determining whether a person believed the force used was necessary for self-defence and whether there were reasonable grounds for this belief. 6.10 Complete separation from the general law of self-defence is also conceivable although problematic in some ways.

6.11 There could be a strong case for complete separation if the aim was to create a defence or defences which could be based on anger as well as fear, along the lines of the proposal of the English Law Commission for a revised defence of provocation discussed in Chapter 4. However, the proposal of the English Law Commission concerned only a partial defence to murder and it included an objective test: the test of whether a person of the defendant’s age and of ordinary temperament might have reacted in the same or a similar way. While this is perhaps appropriate for a partial defence based on anger, it might be thought too restrictive for a partial defence based on fear. The proposal has not been adopted in any Australian state.

6.12 On the other hand, if fear alone were to be the focus of any separate defence, there would be substantial overlap with the general law of self-defence. This approach could enable a defence or defences to be geared to the particular circumstances of the victims of abusive relationships. However, it would introduce complications which could be avoided either by reforming the general law of self-defence or by supplementing the general law with provisions on how particular kinds of evidence might be relevant in cases involving abusive relationships.

Questions:

Should there be amendments to the law of defensive force in Queensland similar to those introduced in other States?

Would reforms of this kind offer the most appropriate protection against criminal liability for battered persons who kill or use other violence against their abusers?

Where the directions for reform in other States have diverged, which options would be most appropriate for Queensland?

Are there any respects in which Queensland could improve on the reforms made in other States?

Should Queensland introduce evidentiary provisions, similar to those in Victoria, in order to specify the kinds of evidence that may be relevant to defences for battered persons?

Should Queensland introduce a complete or partial defence which is wholly separate from the general law on defensive force?

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