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 - AND still 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passed but never commenced and then repealed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.
Then s 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.
RELEVANCE OF PROVOCATION
TO SELF DEFENCE (1)

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 (2)
s 271
s 272
UNPROVOKED
ATTACK
PROVOKED
ATTACK
=
=
If the ACCUSED
did not provoke
the the VICTIM
to attack him/her
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.
 NB Kerr 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 lifethreatening 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 minor assault 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".
Facts:

Heather O and son, David Albion, both charged with
murder of Frank O on 30/07/91
–
–
–
–


Osland v R (1998)
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: 2nd jury 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
–
–

All JJ agreed that appeal must fail except re inconsistency
–
–

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 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 204205) - see (1997) 19 Syd LR 230 re McEwen
Not battered wife syndrome - complete misnomer:
–
–

Not relevant: the sex or marital status 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 selfdefensive, 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