20The central inquiry of Part 2 of this Report is whether the law of self-defence in section 48 of the Crimes Act accommodates the circumstances of victims of family violence who kill their abusers. Self-defence is often claimed in this context, but is not usually successful.
21It should be noted that section 48 applies to all occasions when recourse is made to self-defence; the section is not limited to homicide. It states:
Every one is justified in using, in defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
23The inequity is said to arise because the law of self-defence was developed primarily in response to the “stereotypical” scenario of a one-off violent confrontation between two male strangers of relatively equal strength. Therefore, the immediacy of the threat and the proportionality of the response have emerged as central concepts. However, these concepts can fail to accommodate the very different experiences of women, who, the research tells us, typically claim self-defence in the context of ongoing intimate partner violence. Due to physical disparities, women in such circumstances will typically use a weapon to defend themselves against a stronger male aggressor. Some women will respond with considerable force to an apparently minor assault, because the real threat is one of an ongoing nature. Conversely, other women may not respond immediately when attacked, but will rather wait for a time when their response is more likely to be effective. These realities tend to preclude any claim of self-defence from being successful.
26Despite this, the law as it stands means that unless the victim of family violence is responding to an imminent threat, self-defence may not be available. The Commission considers that imminence should not be a strict requirement where a victim of family violence claims self-defence. The focus should instead be on whether, in the words of section 48, the use of force was, in all the circumstances as the defendant believed them to be, “reasonable”.
27The Commission considered three options to substantively reform section 48. The first option was to introduce a provision that would clarify that self-defence is available even if the threat is not imminent, with further consideration required as to whether such a clarification should be limited to the family violence context. The second would allow self-defence if the threat was inevitable. The third option would introduce a new defence specifically applicable for victims of family violence who kill their abusers.
28The Commission adopts the first option and recommends that a new provision be introduced into the Crimes Act 1961 to clarify that, where a person is responding to family violence, section 48 may apply even if that person is responding to a threat that is not imminent, provided that the defendant believed their actions to be necessary, and the response was otherwise reasonable. This would apply where a victim of intimate partner violence kills their abusive partner, as well as in other family violence contexts, such as where a person kills a parent or partner of their parent in response to family violence. To avoid the unintended consequence of violent offenders being able to take advantage of the change of law, this amendment is only made available to victims of family violence. It applies in all circumstances where self-defence is relevant and would not be limited to charges of homicide.
29Our review of section 48 found other issues that can also make it difficult in cases of family violence for a defendant to run a successful plea of not guilty on the basis of self-defence. In particular, the traditional focus on the immediate circumstances of the alleged offending means a jury is less likely to hear evidence on the history of the relationship, or if the jury does hear such evidence, it may only be for the limited purpose of understanding the circumstances of the immediate event. Such evidence may not be sufficient to enable a jury to gain a proper understanding of all of the circumstances of the alleged offending. We therefore make a recommendation to identify in legislation the full range of evidence of prior family violence and expert evidence that may be relevant to a jury’s assessment of whether a defendant who is a victim of family violence was impelled to act in the way they did. Expert evidence is likely to assist by explaining the social context of the homicide rather than by focusing on the outdated and much criticised battered woman syndrome.