CRIMINAL LAW AND PROCEDURE LWB232

CRIMINAL LAW AND PROCEDURE LWB232 WEEK 10 SELF DEFENCE

Self-Defence • CF fighting: if a person wants to fight then questions of self defence do not arise. • CF anticipatory defensive action such as petrol bombs to defend shop in anticipation of riots. • Historically tailored to the factual paradigm of a "one-off confrontational encounter between two strangers of roughly equal size and strength".

They just won’t go: • Ss 271-273 QCC are unnecessarily obscure and complex in their operation - ANDstill uncertainties • Haven’t been amended since Criminal Code Act 1899 received Royal Assent in Nov 1899. • Subject of both judicial and academic criticism • "by no means a model of clarity or simplicity” (Gray) • O’Regan: Questions about whether initial attack was unprovoked or provoked, whether it was major or minor and whether the accused retreated [which] are critical under ss. 271 and 272...complicate an otherwise simple enquiry - whether the accused, in taking the defensive action [s/he] did, acted reasonably?

Have survived all Code reviews: • O’Regan 1992 - not implemented • Completely new Criminal Code Act 1995 • passed but never commenced and then repealed on change in government • 1997 Review - weren’t touched • Govt Taskforce on Women and the Criminal Code • promising 1999 Discussion Paper • BUT Feb 2000 Report recommended no change

Self-Defence: ss 271-272 QCC • Complete justification resulting in acquittal: to act in self defence is to act lawfully. • Similarly to provocation, the onus is on Crown to negative the self defence BRD after accused has adduced some evidence making issue a live one. • 3 separate excuses in ss 271-272: 1. s 271(1) - minor unprovoked assaults 2. s 271(2) - major unprovoked assaults 3. s 272 - provoked assaults. • Thens 273:extends operation of ss 271-272 where a 3rd person is being defended.

S 271(1) - Minor Unprovoked Assaults R v Prow [1990] at 75: Shepherdson J identified elements of s 271(1): 1. Victim unlawfully assaulted accused; 2. Accused did not provoke the assault; 3. Accused used such force as was reasonably necessary to make effectual defence against victim's assault; 4. Force used by accused was not intended and was not likely to cause death or GBH.

MUST ASK AS AN INITIAL INQUIRY Could the VICTIM of the self defence have relied on provocation (in terms of s 268 provocation) to excuse their assault on the accused? RELEVANCE OF PROVOCATION TO SELF DEFENCE (1)

UNPROVOKED ATTACK = If the ACCUSED did not provoke the the VICTIM to attack him/her RELEVANCE OF PROVOCATION TO SELF DEFENCE (2) s 271 s 272 PROVOKED ATTACK = If the ACCUSED provoked the VICTIM to attack him/her

Muratovic re s 271 and provocation. • NB further point from Muratovic that accused may have provoked "an" assault but not "the" assault: has THE assault actually made by the victim been provoked? • Therefore s 271 = NO provocation at all OR no provocation for assault actually made. • NBKerr re OOP • will be considered unprovoked unless Cr proves BRD provoked

SG 5.2.3.3: Re “force” in s 271. • What is the “force” which Cr must prove BRD was not “reasonably necessary” under s 271(1)? • must Cr show which particular punch(es) were fatal and disregard any later blow in disproving s 271? • See R v Ellem (No 2) • accused’s response to (claimed) unprovoked assault was an uninterrupted series of blows • HELD: it is the series of blows, and not any single one of them, that constitutes the “force” used for defence and it is that force which must be judged against the s 271 criteria (ie, as being R nec).

S 271(2) - major unprovoked assaults • See SG at 72 • Where victim has used deadly force against accused. • See elements as set out on p 72 SG • BUT note: • Some controversy due to conflicting decisions of Allwood (Unrpt Qld C of A, 22/8/97) and Gray (1998) • Commented on in Julian (1998) • Suggest that Gray to be preferred (over Allwood) re conflict • Explained in SG at pp 73-74.

Element 2 s 271(2) - Nature of the assault. • Was assault such as to cause a reasonable apprehension in accused of death or GBH? • As well as immediate facts, prior threats and attacks by victim relevant: • Keith: death threats not admitted as too remote; • Muratovic: threats and assaults by victim 6 days before admissible to show nature of final attack and accused’s apprehension re it; • Masters: accused’s belief about violent character of victim and basis for it admissible.

Re Element 3 s 271(2):Belief on reasonable grounds • Marwey: • subjective - whether accused held belief • objective - whether reasonable grounds for belief • Julian confirms that it is accused’s belief that is “critical factor” (see also Gray) • prior history as to threats, assaults, violent reputation etc relevant • re “otherwise”: see Muratovic • evidential issues of retreat and less violent reaction under s 271 (cf s 272). • NB relevance of battered woman evidence

Final Q re s 271(2): Does force need to be “reasonably” nec? • Problem is that: • s 271(1) talks about “R nec” force • s 271(2) talks about “nec” force Ques: Does s 271(2)force also have to be “R nec” • Per Barwick CJ in Marwey at 637: • Doubtful that anything turns on this • “element of Rness is supplied by the need for the belief to be founded on R grounds” • Therefore, suggested that not point in putting “R” B4 “necessary” • See Gray cf Allwood But NB Julian……….

Gray (1998) 98 A Crim R 589 • McPherson JA - relative independence of s 271 sub-ss • Then at 593: assuming an unlawful and unprovoked assault, only two conditions needed: nature of assault “such as to cause R apprehension of death or GBH” person using force by way of defence believes on R grounds that s/he “cannot otherwise preserve” the p being defended from death or GBH • Therefore, a person is by virtue of s271(2), justified in killing or doing GBH to an assailant if s/he reasonably believes that doing so is the only way in which s/he can save him/herself or someone else from an unprovoked and life-threatening assault

“Principal distinction” between ss 271(1) and 272(2): R v Bojovic [1999] • Identified the broad stream of cases in which one or other of both of defences may be appropriate • Speaking v generally, in homicide cases: • s 271(1) best suited for cases where the deceased’s initial violence was not life-threatening and where the reaction of the accused has not been particularly gross, but has resulted in a death that was not intended or likely • ie, where you can argue that the “unlikely happened” when death resulted

“Principal distinction” b/w s271(1) and 272(2) (Cont): • S 271(2) best suited to cases where serious bodily harm or life-threatening violence has been faced by accused, in which case the level of his/her response is not subjected to the same strictures as are necessary under s 271(1). • Sometimes appropriate to leave both limbs to jury: only cases in the “grey area” • where circumstances are arguable but not clear as to whether a R apprehension of GBH was caused on the part of the accused

s 271(2) and s 24 mistake. • Some confusion over what you could be mistaken about. • See Marwey overruling Gibbs in Muratovic: • “state of things” in s 24 will extend to mistake as to threat posed by assault but not to mistaken judgement about amount of force necessary • See Connolly J in Lawrie: eg, mistaken H and R belief that being attacked by real gun when only starting pistol = s 24

S 272 - SELF DEFENCE AGAINST PROVOKED ASSAULT (FROM STUDY GUIDE p 74) • This section only applies when VICTIM retaliates against ACCUSED'S provocation or assault with a MURDEROUS assault (ie, an assault that would objectively cause apprehension of death or GBH). • S 272(2) confines the defence: • not apply where accused used murderous violence (1) in the first place; or (2) before it was necessary to do so. • See elements set out in SG p 74 per Hart J in Muratovic.

Outline of Operation of ss 271 & 272.. (1) • Is it provoked or unprovoked? If provoked then s 272 If unprovoked then s 271 • Re s 271: Is it MAJOR (murderous/deadly) or MINOR assault? If minor then s 271(1) - only reasonably necessary force. If major then s 271(2) - belief on reasonable grounds that force used is necessary - ?more lenient than s 272? ...2

Outline of Operation of ss 271 & 272 ..(2) • Re s 272: If ACCUSED has provoked THEN: If a minorassault results from victim: NO self defence available. If a major(murderous/deadly) assault results: s 272 only (NB s 272 overall seems more restrictive than s 271(2)).

S 272 AND RETREAT • Problem with S 272(2) which limits s 272 protection. • See now Randle (1995) • Look at the words of s 272...

QCC s 272. (Words straight from the section) S 272(1)When a person has [1] unlawfully assaulted another or [2] has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or GBH, and to induce the person to believe, on reasonable grounds, that it is necessary for the person's preservation from death or GBH to use force in self defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or GBH.

QCC s 272 (Words straight from the section) s 272 (2) This protection does not extend to a case in which the person using force which causes death or GBH first began the assault with intent to kill or to do GBH to some person; nor to a case in which the person using force which causes death or GBH endeavoured to kill or to do GBH to some person before the necessity of so preserving himself or herself arose; nor, in either case, unless, before such necessity arose, the person using such force declined further conflict, quitted it or retreated from it as far as was practicable.

S 272 AND RETREAT(1) • Re s 272(2) 3rd clause: Malcolm CJ in Randle at 121-124: • an accused initially disqualified under s 272(2) clauses 1 and 2 may re-qualify if they "retreat" as per 3rd clause. • Though retreat not referred to in s 272(1) (nor in s 271), it is a relevant factor for jury when considering whether reasonable grounds existed for accused's belief as to necessity for self-preservation (Randle at 124 citing Sreckovic). • Further... ...2

S 272 AND RETREAT(2) • Further... • Words "as far as practicable" in S 272(2) 3rd clause qualify all of "quitted", "retreated" and "declined" (Randle at 124). • "Practicable" means "feasible" (Randle at 136).

"BATTERED WOMAN" • Lenore Walker defined a "battered woman” and described a “battering cycle”. • Nomenclature/Terminology • battered wife/woman syndrome • battered woman reality: Scutt and Rathus • battered person reality?: Kirby J in Osland • See, eg, summary of Walker’s research in Lavallee per Wilson J; also summary of evidence given by psychologist, Dr Bryne, in Osland at 184.

Cycle of Violence 1. Build up phase 2. Acute Battering 3. Contrite loving behaviour “Learned helplessness”: label for psychological response to repeated violence - idea that victim feels unable to improve his/her situation or escape.

Battered Woman Critiqued • why medicalise objectively life threatening situation? • creates a while middle class standard which distorts experiences of : • any women who do not fit the profile • are these women really passive, irrational, ill or helpless esp when they have just committed the ultimate act of self help? • many reasons why unable to leave abusive relationship • aboriginal women who fall outside it • same sex relationships where abuse may occur (see McEwen (unrpt), a gay man who killed his abusive partner and was considered a “battered wife”). • Many of these matters raised by Kirby J in Osland

Why Consider It Here? • NOT a defence in itself • provides evidence of accused’s mental state to overcome any jury misconceptions re est. defences. • Self defence a complete acquittal preferable • Canadian case of Lavallee was self defence • accused shot abusive partner in back of head when he was leaving room after assaulting her and threatening to kill her later • Secretary (NT) • shot sleeping de facto in self defence.

WHAT IS THE RELEVANCE OF EVIDENCE OF BWS? • Two particular grounds of relevance in self defence. It goes to: (1) establishing that accused was under "a reasonable apprehension of death or GBH"; (2) the magnitude of force used by accused: was accused's belief that she could not "otherwise preserve herself from death or GBH" (except by, for example, shooting the deceased when he was asleep or while he was leaving the room) based on reasonable grounds? • Focus on reasonableness of her actions in context of her experiences, NOT on status as battered woman and BWS.

R v Secretary (NTR) • re focus on the “assault” (def s 245) being defended - if the victim is asleep what is the assault? • per Mildren J: assault by means of a threat has not ceased just because the deceased was temporarily physically unable to carry it through. Thus open to the jury to characterise the threat as a continuing assault (legitimately defended), not a possible future assault (which may or may not occur). • threat here not withdrawn and was a “present ability” to effect (threatened) assault when the "stipulated time came".

Osland v R (1998) Facts: • Heather O and son, David Albion, both charged with murder of Frank O on 30/07/91 • Evidence est high degree of premeditation. Crown case was that HO and A planned to murder O - had dug a grave for him on 30/07/91; HO mixed sedatives in with his dinner on 30/07/91; A struck blow(s) that killed O in HO’ presence; they buried him in the “hole”; both then acted for 3 yrs as if he had just disappeared. • Intercepted telephone calls • He had physically, sexually and psychologically abused them both for 13 years BUT query what happened in days before murder (escalating or ceased??) • Both relied on self defence and provocation. • A acquitted on basis of self defence • HO convicted of murder and sentenced to 14½ yrs.

Osland v R (1998) Decisions: • 1st jury convict HO, couldn’t decide re A • Retrial of A: 2ndjury acquit • HO appeal to Vic Ct of A dismissed: [1998] 2 VR 636 Grounds of Appeal to High Ct: mainly • Inconsistent verdicts. • Adequacy and accuracy of instructions given to jury on self defence and provocation, particularly re the connection between evid of BWS and the law of provocation and of self defence. • (Other grounds also)

Osland v R (1998) High Ct Decision: • Much discussion of common law on parties • Highlighted that trial conducted on basis of joint concert and primary (not derivative) liability for HO; and that each accused is responsible for each other’s acts, esp where both present • never denied it was a joint killing, just individual justifications • All JJ agreed that appeal must fail except re inconsistency • All agreed that conviction of HO not inconsistent with subsequent acquittal of A • Gaudron and Gummow JJ (min) would have allowed appeal on ground that inconsistency exists between murder conviction of HO and failure of same jury to reach a verdict against A: • First time High Ct has considered relevance of BWS

Osland and BWS • All JJ (except McHugh J) commented. • All rejected HO’s submission that should be regarded as separate defence in own right. • All JJ accepted that treat BWS as a subject of expert evidence that may be relevant to issues such as prov and self-defence. • Eg, Gaudron and Gummow JJ at 185: • Given that the ord person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can’t escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence

Osland and BWS • Kirby J: need for caution in reception of evid re BWS • also said should be cast in gender neutral terms (at 204-205) - see (1997) 19 Syd LR 230 re McEwen • Not battered wife syndrome - complete misnomer: • Not relevant: the sex or maritalstatus of victim of long term abuse, nor whether the abuse has been physical (battering) or o/w. • Is relevant: whether admissible evidence establishes that such a victim is suffering from symptoms or characteristics relevant to the legal rules applicable in the particular case. • Danger that in being too closely defined that syndrome will come to be too rigidly applied by the Cts: unhelpful stereotype of victimised, passive, helpless, dependant, battered woman.

Osland: Kirby J and pre-emptive strikes • BWS evid may assist a jury to understand, as self-defensive, conduct which on one view occurred where there was no actual attack on the accused underway but rather a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike. • still necessary to discriminate between: • a self-defensive response to a grave danger which can only be understood in the light of a history of abusive conduct; and • a response “that simply involves a deliberate desire to exact revenge for past and potential - but unthreatened - future conduct.” (citing Secretary) ….2/

Osland: Kirby J on imminent danger and self defence • (At 211) “The significance of the perception of danger is not its imminence. It is that it renders the defensive force used really necessary and justifies the defender’s belief that “he or she had no alternative, but to take the attacker’s life.” • Goes further than Secretary ?? • Again (at 207): Purpose of BWS: to show how a victim’s actions in taking lethal self-help against the abuser was reasonable in the extra-ordinary circumstances which the victim faced.

R v McKenzie [2000] QCA 324 • Here accused tripped on stairs, gun discharged and killed abusive husband of 40 yrs [See McMurdo J at [8] ] • Appeal against plea of G and against sentence • Not a case of self-defence (she said that she believed gun was not loaded - how could that o/w preserve her?) • BUT note McPherson JA at [46]: ‘If [counsel acted...] under the impression that self-defence was available only in response to an immediate physical threat to the person of the applicant, then they were mistaken about the law. Evidence of [BSW] …is capable of demonstrating “the heightened arousal or awareness of danger which may be experienced by battered women”’ - cited Osland per Gaudron and Gummow JJ and Kirby J

s 273 - Aiding in Self Defence • use of force to defend another where: • defender acting in good faith • See White v Conway: accused not acting in good faith in defence of friend given his initial aggression to the victim • person defended could have used that degree of force • See R v Fietkau • defence not available if attack over or only anticipated

QCC related provisions...(1) • s 267 - defence of dwelling - now amended • test = subjective belief in homeowner, based on (objective) R grounds, that amount of force used was necessary; • covers all “dwellings”(not just houses)* • entry of dwelling sufficient (breaking not nec)* • use of force to prevent and repel* an intruder from entering and remaining* (* = new 1997) ...2

QCC related provisions...(2) • ss 274-279 • other circumstances in which force may be used to defend other types of property • amended to: • allow for infliction of bodily harm (previously could not do bodily harm) • others may now lawfully assist property owner

CRIMINAL LAW AND PROCEDURE LWB232