Contents

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

The Commission’s view

6.83The problems in applying the concepts of imminence, lack of alternatives and proportionality to an assessment of the reasonableness of force used by a victim of family violence are well known and widely accepted.

6.84These concepts in the context of family violence are problematic because they assume continued association of self-defence with a one-off confrontation rather than an ongoing threat of harm. This association developed in the context of male violence and male standards of reasonableness. It jars with contemporary understandings of the nature and dynamics of family violence and, as one English commentator notes, means that self-defence is “skewed to the detriment of women since a defendant’s action is only considered ‘reasonable’ when killing is a proportionate response to an immediate threat of deadly force”.544

6.85The theory that underpins self-defence, discussed in the previous chapter, is that the use of force is justified only if it is “necessary”. The jury assesses necessity by asking whether, in the circumstances as the defendant believed them to be, the force used was reasonable. The concern is that the concepts of imminence and proportionality are not always indicative of necessity in the context of ongoing family violence. They can focus on the immediate circumstances to the exclusion of the wider context, including the cumulative and compounding nature of family violence and the history of the relationship between the defendant and the deceased. In practice, therefore, these concepts can operate as a barrier or unattainable threshold even where a defendant genuinely believes himself or herself to be at risk of death or serious injury, and that the use of force is necessary to avert the risk.

6.86This is not to say the concepts should be abandoned or that every victim of family violence who kills an abuser should be entitled to an acquittal. As the Law Commission said in 2001:545

In many, perhaps most, situations, the use of force will be reasonable only if the danger is imminent because the defendant will have an opportunity to avoid the danger or seek effective help. However, this is not invariably the case. In particular, it may not be the case where the defendant has been subject to ongoing physical abuse within a coercive intimate relationship and knows that further assaults are inevitable, even if help is sought and the immediate danger avoided.

6.87We therefore consider, consistent with the Commission’s view in 2001, that imminence and lack of alternatives should not be strictly applied where a victim of family violence claims self-defence and should not overshadow or substitute the jury’s assessment of whether the use of force was, in the circumstances as the defendant believed them to be, “reasonable”. We also consider that, when a victim of family violence kills an abuser, self-defence should not be excluded simply because the force used by the defendant is not strictly proportionate to the force used against the defendant in the immediate circumstances. The reasonableness of the force used must be assessed in light of all the circumstances, including physical disparities and the history of abuse between the parties.

Is legislative reform necessary?

6.88An important principle of law reform is that non-legislative alternatives to achieving a policy objective are considered and unnecessary legislation avoided.546 Legislative reform to clarify the correct interpretation of the law may, however, be preferred where it serves an important declaratory or educative function. The VLRC, for example, observed that there was no requirement for imminence or strict proportionality in Australian common law but nonetheless recommended that the substantive test for self-defence be clarified in statute in order to ensure jury directions dealt with the issues adequately and to encourage a more careful analysis by jurors of self-defence claims, particularly by victims of family violence.547
6.89In New Zealand, in 2001, the Commission recognised that section 48 did not require the courts to exclude self-defence where a danger was inevitable but not imminent. However, the Commission considered it was preferable to make this explicit through legislative reform, rather than leave the law to be developed case by case, because:548

Relying on the courts to develop the law may require a person to be convicted and then to appeal successfully before the legal position is clarified. While the Court of Appeal would be free to change its earlier approach, a trial judge may feel he or she is required to follow the approach in Wang. Until the Court of Appeal had dealt with the matter, the correct interpretation of section 48 would remain unclear, although some trial judges may approach section 48 in terms of inevitability.

6.90Since then, as outlined above, the Court of Appeal has not changed its approach to the requirement for imminence. Instead, it has continued to follow Wang, which the Supreme Court recently recognised as part of the settled law of self-defence.549 In the absence of any Court of Appeal or Supreme Court decision to the contrary High Court judges would, therefore, be bound to follow Wang. Since 2001, however, an extensive body of literature has examined the operation of self-defence and maintains that the concept of imminence is problematic in the context of victims of family violence who kill, which has led to targeted reform in other jurisdictions.

6.91For these reasons, we conclude the case for reform to address the problems with the concept of imminence when self-defence is claimed by victims of family violence is made out. We discuss the options for reform in the next chapter.

6.92The requirement for “reasonable proportionality” between the force used and the perceived danger is, we consider, capable of being interpreted in a manner that takes into account the full circumstances of victims of family violence who use defensive force. The statements in Oakes and Afamasaga confirm that proportionality is assessed in the circumstances as the defendant believes them to be. We do not, therefore, consider there is a need to clarify in legislation the operation of this aspect of the test for self-defence. However, for this concept to operate fairly for victims of family violence, the “circumstances” considered must include not only the physical disparities between the defendant and their abuser but also the history of abuse between the parties. These circumstances may be explained through direct evidence from the defendant as well as expert evidence on the dynamics of family violence. We consider that the education of judges, lawyers and Police on the dynamics of family violence, recommended in Chapter 2, is also critical to ensuring the full circumstances are put before the jury.

544Susan Edwards “Abolishing Provocation and Reframing Self Defence – The Law Commission’s Options for Reform” [2004] Crim L Rev 181 at 188, discussed in Elliot, above n 421, at 234.
545Law Commission, above n 429, at 12.
546See the Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation (2014). This is also a requirement of the Cabinet Manual: Cabinet Office Cabinet Manual 2008 at [1.2].
547Victorian Law Reform Commission, above n 395, at 80 and 83.
548Law Commission, above n 429, at 12.
549 Vincent (CA), above n 451, at [8]–[10].