Contents

Chapter 7
Options for reform of self-defence

Substantive reform of the law of self-defence

7.1We consider, provisionally, that there is a case for law reform to modify the strictures of the current judge-made test for assessing the reasonableness of the force used for the purposes of self-defence. The objective of any reform is to ensure that the concepts of imminence, proportionality and lack of alternatives do not unfairly exclude victims of family violence – typically women – from successfully relying on self-defence in circumstances where they had no real alternative to the use of force.

7.2While not every victim of family violence who commits homicide will be acting in self-defence, the defence should be sufficiently flexible to take into account the range of circumstances in which a person may be reasonably acting to protect himself, herself or another. This is consistent with the Law Commission’s findings in 2001:412

The Commission considers that self-defence should not be excluded where the defendant is using force against a danger that is not imminent but is inevitable. 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.

7.3We have identified several possible options for achieving this objective, which are discussed below.

Option 1: Clarify that imminence and proportionality of force are relevant factors, not thresholds, to relying on self-defence

7.4The first option is to essentially adopt the approach taken in Victoria, which has recently been recommended in Tasmania. This would require introducing a new provision in the Crimes Act 1961 to confirm that self-defence is not excluded if the threat is not imminent or the force is disproportionate to the threat. These elements would remain relevant to the assessment of reasonable force but would not act as a threshold or barrier if they are not met.

7.5An advantage of this approach is that it avoids altering the self-defence test itself and simply provides a “for the avoidance of doubt” direction on the judicial interpretation and application of section 48.

7.6In Victoria, this provision applies only where family violence is in issue, although we note a similar clarification to self-defence was made in Western Australia, which has general application. As we explain in Chapter 1, our terms of reference are limited to the law as it applies to victims of family violence who commit homicide. If we recommend reform, we intend to limit it to victims of family violence only, except where we can be satisfied that there are strong reasons for recommending general reform and that the risk of unintended consequences is low. This option is one area where, given the nature of section 48, general rather than specific reform may be warranted. We would welcome views on this issue.

7.7There is limited evidence in Victoria of these changes having an impact on the operation of self-defence in respect of victims of family violence.413 Those amendments were reviewed and endorsed by the Victorian Department of Justice seven years after their commencement.

7.8Such a provision, similar to section 322M of the Crimes Act 1958 (Vic), could be as follows:

Without limiting section 48, for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person’s conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if—
(a) the person is responding to a harm that is not immediate; or
(b) the response involves the use of force in excess of the force involved in the harm or threatened harm.

Option 2: Replace imminence by including express reference to inevitabilityTop

7.9The second option is to replace by statute the Wang concept of imminence with inevitability. This reflects the Law Commission’s recommendation in 2001. This could be done by amending section 48 to state that it applies where the danger sought to be avoided is “inevitable”.

7.10As this option would amend the substantive self-defence provision, which is a general defence, it would be of general effect rather than specific to victims of family violence.

7.11Since 2001, several concerns have been identified with this approach. First, inclusion of a substantive requirement of “inevitability” (rather than a question of fact and degree regarding the imminence of the danger) would extend the current judicially determined parameters of self-defence and could see an increase in offenders other than victims of family violence claiming self-defence,414 perhaps making it too easy for pre-emptive strikes by those with a sociopathic view of appropriate dispute resolution.415 For example, considering the dangerous nature of prison environments or gangs, changing the test from imminence to inevitability might allow prisoners and gang members to justify pre-emptive strikes on the basis of inevitable future harm from other prisoners or rival gang members.416
7.12Second, a defence based on fear of the “inevitable” is less readily objectively ascertainable than “imminent” danger.417 Indeed, objective inevitability is almost impossible to establish, but subjective inevitability would open self-defence to those of paranoid disposition or those with an inability to conceive of non-violent options.418 How would a jury assess the inevitability of future violence? When, for example, would fear of an attack assume the quality of inevitability? Will there be some limit on just how far in advance the defendant is justified in acting pre-emptively? A judge may need to give detailed directions to a jury to ensure they are aware of the difference between imminence and inevitability. Some consider that an inevitability standard may necessarily involve speculation and dangerously raise the level of error when predicting inevitable violence at some future but unspecified time.419
7.13Finally, some argue that inevitability potentially blurs the justificatory underpinnings of self-defence and may edge closer to excusing the defendant’s behaviour in acting out of a sense of fear or terror rather than in genuine defence.420

Option 3: Insert new self-defence provision where the defendant is a victim of family violence and acts out of necessityTop

7.14A third option is a new, complete defence that applies only where a defendant is responding to family violence and focuses on the underlying principle of necessity. As noted above, the test of necessity prescribes the outer limits of a plea of self-defence,421 yet in New Zealand, the imminence requirement has arguably acted as a threshold.422

7.15A test focused on necessity, rather than the imminence of the threat and the degree of force used, would have the effect of removing the requirement for a response to an immediate threat. However, it would still require the person claiming the defence to show they had no reasonable alternative. In other words, the imminence of the threat would remain relevant but not determinative to a defendant’s reliance on self-defence.

7.16Some commentators argue that a separate defence would be preferable to removing the temporal requirement of “imminence” from self-defence, as this would potentially blur the underlying rationale for the defence.423 Self-defence operates as a “justification”, which implies that the conduct of the accused was morally right and acceptable, whereas an “excuse-based” defence, such as provocation, implies that the conduct of the accused is wrong but, either in full or in part, forgiven.424 Some commentators argue that the underlying rationale of a defence without a temporal connection “edges closer to excusing the accused’s behaviour in acting out of a sense of fear or terror as an understandable human frailty.”425 That is, although what the defendant did was a crime, we do not want to hold the defendant morally blameworthy for that crime.

7.17A separate provision may also be preferable to recognise or accommodate the complexities in scenarios involving self-defence where there is no imminent or immediate threat to the defendant.

7.18However, others argue self-defence can and should accommodate the diverse situational and psychological circumstances of family violence victims426 and that having a separate defence for victims of family violence could result in different treatment.427

Questions for Consultation

412Law Commission, above n 7, at 12.
413There is one case where a victim of family violence successfully relied on self-defence in a non-confrontational situation with excessive force – DPP v Bracken, above n 221.
414Dawkins and Briggs, above n 234, at 348–350.
415Campbell, above n 133, at 95.
416Guz and McMahon, above n 243, at 104.
417Dawkins and Briggs, above n 234, at 348–349; Simester and Brookbanks, above n 129, at 528.
418Campbell, above n 133, at 93.
419Guz and McMahon, above n 243, at 103–104.
420Dawkins and Briggs, above n 234, at 348.
421The Victorian case of Osland involved a severely beaten and raped defendant who mixed sedatives in the food of her husband and, when he was unconscious, hit him on the head with a pipe. She was convicted of murder, and her conviction was upheld by the High Court. Kirby J did not consider that the actions were “reasonably necessary to remove further violence threatening her with death or really serious injury” (Osland v R, above n 133, at 342.).
422Campbell, above n 133.
423Dawkins and Briggs, above n 234, at 348.
424Law Reform Commission of Ireland, above n 132, at 5.
425Dawkins and Briggs, above n 234, at 348.
426Victorian Law Reform Commission, above n 16; Law Reform Commission of Western Australia, above n 16.
427Australian Law Reform Commission and NSW Law Reform Commission, above n 10, at 649–650.