Chapter 6
Self-defence and family violence – is there a problem?

Self-defence in other jurisdictions

6.63The FVDRC argues that self-defence has been interpreted in a more restrictive manner in New Zealand compared with similar jurisdictions.506
6.64In Australia, imminence, lack of alternatives and proportionality are simply factors in the jury’s assessment of self-defence at common law.507 Queensland is alone in requiring by statute that defensive action be taken in response to an assault.508 However, even in that State, the courts have been sensitive to look past the question of imminence.509 The Queensland Supreme Court in the case of R v Falls said:510

[I]t doesn’t matter that at the moment [the defendant] shot Mr Falls in the head he didn’t at that moment offer or pose any threat to her. He had assaulted her. There was the threat that there would be another one and another one and another one after that until one day something terrible happened. It might have been the next day, it might have been the next week, but the risk of death or serious injury to her was ever present.

6.65The only Australian jurisdiction that retains a direct reference to proportionality in its statute is South Australia. However, this requirement is qualified, consistent with the approach at common law, by the statement that:511

A requirement … 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.

6.66The relatively flexible approach in the Australian common law has not prevented several states from pursuing law reform to clarify that these concepts do not operate as a barrier to successful claims by victims of family violence. As discussed in Chapter 4, the VLRC considered that legislative reform was desirable to encourage a more careful analysis by jurors of circumstances in which a person may reasonably believe his or her life is in danger, even where that person is not under immediate attack or at risk of immediate harm.512 It also recommended reform to discourage juries from placing undue emphasis on the proportionality of the response to the force used or threatened against the defendant in determining whether their actions were reasonable.513 Similar findings were made in Western Australia and Tasmania. We consider the detail of relevant reforms pursued in these jurisdictions in the following chapter.
6.67In Canada, in the 1990 case of R v Lavallee, the Supreme Court similarly relaxed the requirement for imminent danger in respect of victims of family violence who kill their abusers.514 To require a victim of family violence to wait until the physical assault is “underway” before her apprehensions can be validated in law would, that Court considered, be tantamount to sentencing the defendant to “murder by instalment”.515 Given the context in which family violence occurs, the Court also considered the “mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality”.516 Subsequent statutory reforms to the law of self-defence in Canada, discussed in Chapter 4, codified the decision in Lavallee to make it clear that the jury must engage in a contextual analysis of the reasonableness of self-defence claims, of which imminence, lack of alternatives and proportionality are but relevant factors for consideration.517
6.68In England and Wales, self-defence requires that the defendant was acting in response to what he or she perceived as an “actual or imminent unlawful assault” and that the defendant’s actions were reasonable in the circumstances as he or she believed them to be.518 The degree of force is not to be regarded as having been reasonable in the circumstances if it was “disproportionate in those circumstances”, but the jury must take into consideration that a person cannot “weigh to a nicety the exact measure of his necessary defensive action”, and evidence of a person having only done what they honestly and instinctively thought was necessary constitutes strong evidence that only reasonable action was taken.519 The requirement for proportionality is therefore interpreted flexibly, consistent with the approach in New Zealand. In particular, the use of a weapon by a woman against an unarmed but violent man does not necessarily make their act unlawful, as the nature of the threat must be considered against the background circumstances.520 It is recognised, however, that the continued requirement for imminence may exclude cases in which the defendant acted in genuine fear for their life.521
506Family Violence Death Review Committee, above n 399, at 102.
507Zecevic v DPP (1987) 162 CLR 645; Hopkins and Easteal, above n 394, at 132–133; Law Reform Commission of Western Australia, above n 427, at 164; and Victorian Law Reform Commission, above n 395, at 77.
508Criminal Code 1899 (QLD), ss 271–272, discussed in Hopkins and Easteal, above n 394, at 135–136.
509Elizabeth Sheehy, Julie Stubbs and Julia Tolmie “Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand” (2012) 34 Syd L Rev 467 at 471.
510R v Falls Supreme Court of Queensland, 2–3 June 2010, cited in Sheehy, Stubbs and Tolmie, above n 509, at 471.
511Criminal Law Consolidation Act 1935 (SA), s 15B. During the second reading of the 2003 Bill introducing this qualifying statement, the Hon P Holloway explained the amendment was not a new principle but rather a statement of the current principle in the codified law on self-defence. See (26 May 2003) SAPD LC 2393.
512Victorian Law Reform Commission, above n 395, at 80.
513At 83.
514R v Lavallee [1990] 1 SCR 852 at 876–877. See Campbell, above n 486, at 82–84. See also R v Petel [1994] 1 SCR 3 at [22].
515R v Lavallee, above n 514, at 883.
516At 880.
517Citizen’s Arrest and Self-defence Act SC 2012 c 9, s 34. See also Vanessa MacDonnell “The New Self-Defence Law: Progressive Development or Status Quo?” (2013) 92 Can Bar Rev 301 at 317.
518Law Commission of England and Wales, above n 415, at 73.
519Criminal Justice and Immigration Act 2008 (UK), s 76, codifying the Privy Council decision in Palmer v R, above n 491, at 832. See Law Commission of England and Wales, above n 415, at 75.
520The Law Commission of England and Wales, endorsing the submission by HHJ Goddard QC. See Law Commission of England and Wales, above n 415, at 76.
521At 78–79.