Contents

Chapter 6
Developments in other countries

Self-defence in other countries

6.7Historically, self-defence in Australia and Canada required an imminent attack or threat. In Australia, this requirement was relaxed in common law states in Zecevic v DPP,304 which confirmed that imminence and proportionality were only factors relevant to whether the accused believed that it was necessary to act in self-defence and the reasonableness of that belief.305 However, in the states that had codified self-defence (Northern Territory, Queensland and Western Australia), it remained complex and more restrictive.306
6.8Case law in Canada has also relaxed the requirement of imminence in cases involving victims of family violence who kill their predominant aggressor.307 The current self-defence provision in the Criminal Code now directs the court to consider, among other factors, the imminence of the force anticipated, and the nature and proportionality of the response, in determining whether the defendant’s act was reasonable.308
6.9In England and Wales, Ireland and in some states of the United States adopting the Model Penal Code,309 self-defence continues to be available only if the attack is imminent.
6.10While the continued requirement for imminence is recognised as a problem for victims of family violence in Queensland,310 England and Wales,311 and Ireland,312 the preferred solution in those jurisdictions was to reform partial defences to make these more accessible to victims of family violence who kill in the absence of an imminent threat.313 This is discussed from paragraph 6.39 below.
304Zecevic v DPP (1987) 162 CLR 645 (HCA). The “common law states” refer to those states where the law of self-defence was derived from the common law rather than statute. They included Victoria, NSW, ACT, South Australia and Tasmania.
305Victorian Law Reform Commission, above n 16, at 76–82; Zecevic v DPP, above n 304; Australian Law Reform Commission and NSW Law Reform Commission, above n 10, at 623.
306Kate Fitz-Gibbon and Julie Stubbs “Divergent directions in reforming legal responses to lethal violence” (2012) 45 Australian & New Zealand Journal of Criminology 318 at 325; Guz and McMahon, above n 243, at 89.
307R v Lavallee (1990) 1 SCR 852; Campbell, above n 133, at 82–84.
308Criminal Code RSC 1985 c C-46, s 34.
309Joshua Dressler, in his article, “Feminist (Or ‘Feminist’) Reform Of Self-Defense Law: Some Critical Reflections” (2010) 93 Marquette Law Review 1475 at 1488, notes that the American Model Penal Code proposes a more limited extension of “imminence”, so that the use of deadly force by the innocent party need only be “immediately necessary… on the present occasion”. The intent of the change is that the innocent party need not wait until the attack is about to take place. They can act prior to the attack but only in circumstances where the primary aggressor poses an immediate threat. In this context, it would mean victims of serious family violence could take action to defend themselves when they face immediate danger, even if the attack was not actually taking place, such as where the predominant aggressor makes a move towards a weapon indicating that he intends to use it against the primary victim. However, the victim could not take pre-emptive action if the predominant aggressor was not actually taking any steps to commit aggression, for example, if he was sleeping or intoxicated. The Model Penal Code has been adopted by a number of states in the United States.
310Queensland Law Reform Commission, above n 182.
311Law Commission of England and Wales, above n 225, at [3.65].
312Law Reform Commission of Ireland, above n 132, at 48.
313At 8; Law Commission of England and Wales, above n 225.