Battered Women, Startled Householders and Psychological Self-Defence: Anglo-Australian Perspectives
| Author | Nicola Wake |
| DOI | 10.1350/jcla.2013.77.5.868 |
| Published date | 01 October 2013 |
| Date | 01 October 2013 |
| Subject Matter | Article |
Battered Women, Startled
Householders and Psychological
Self-Defence: Anglo-Australian
Perspectives
Nicola Wake*
Domus sua cuique est tutissimum refugium1
Abstract This article provides a timely and critical reappraisal of the
interconnected, but discrete, doctrines of loss of self-control, under ss 54–
56 of the Coroners and Justice Act 2009, and self-defence within s. 76 of
the Criminal Justice and Immigration Act 2008. The loss of control
conceptualisation renders it difficult for defendants to claim the partial
defence where exculpatory self-defence has been rejected, and fear of
serious violence is adduced. This doctrinal incoherence has been exacer-
bated by the fact that s. 43 of the Crime and Courts Act 2013 effectively
legitimises the use of disproportionate force in self-defence, but only in
‘startled householder’ cases. A more appropriate avenue of reform is
provided by developments in Australian jurisdictions. This comparative
extirpation engages the introduction of a new partial defence of self-
preservation/psychological self-defence predicated on the notion of
excessive utilisation of force in self-defence as in New South Wales,
supplemented with a ‘social framework’ provision, akin to that in Victoria.
The new defence would avoid the problems associated with requiring the
abused woman to establish a loss of self-control and/or affording an
affirmative defence in ‘startled householder’ cases.
Keywords Australia; Excessive use of force in self-defence; New
South Wales; Loss of control; Social framework evidence
The loss of control defence exists as a paradigm illustration of the
difficulties associated with over-emphasising political policy at the ex-
pense of optimal and coherent criminal justice reform. The partial
defence as enacted in ss 54–56 of the Coroners and Justice Act 20092
deviated significantly from the Law Commission’s recommendations.
The government abolished provocation,3rejected the Law Commission’s
* Senior Lecturer in Law) University of Northumbria; e-mail: nicola.wake@
northumbria.ac.uk.
The author expresses her thanks to Professor Alan Reed (University of
Northumbria) and Ben Livings (Senior Lecturer, University of Sunderland) for
their invaluable comments on earlier drafts of this article. This article represents
the views of the author.
1 ‘For a man’s house is his castle, et domus sua cuique est tutissimum refugium [and
each man’s home is his safest refuge]’: Sir Edward Coke, The Institutes of the Laws of
England (1628).
2 Sections 54–56 of the Coroners and Justice Act 2009 were brought into force on 4
October 2010 (see the Coroners and Justice Act 2009 (Commencement No. 4,
Transitional and Saving Provisions) Order 2010 (SI 2010 No. 816).
3 Coroners and Justice Act 2009, s. 56.
433The Journal of Criminal Law (2013) 77 JCL 433–457
doi:10.1350/jcla.2013.77.5.868
schematic hierarchical template for homicide offences4and arbitrarily
selected aspects of the Law Commission’s coherent reform package5for
the purpose of introducing the new defence.6This piecemeal approach
has resulted in tautological and imprecise terminology with resultant
implications at both a practical and doctrinal level.
This article focuses specifically on the government’s controversial
decision to predicate the partial defence on a ‘loss of self-control’ thresh-
old filter mechanism contrary to the Law Commission recommenda-
tions. It reviews the problems associated with the ‘loss of control’
conceptualisation and considers the extent to which this requirement
impacts upon defendants who seek to use this partial concessionary
mitigation as a fall-back option in cases where self-defence is rejected.
Recent amendments under the Crime and Courts Act 20137have
exacerbated the difficulties in this area by placing the ‘startled house-
holder’ in a better position than every other defendant in cases involving
self-defence. This analysis is supplemented by an in-depth consideration
of the applicability of excessive self-defence in Australia, specifically
New South Wales, and recent reform recommendations on provocation
in that jurisdiction.8
The partial loss of control defence is designed to be available where a
defendant kills in response to a fear of serious violence. Under s. 54 (7)
of the Coroners and Justice Act 2009 a successful plea operates to reduce
a murder conviction to voluntary manslaughter. At an operational level
a fear of serious violence may be fundamentally incompatible with the
notion of a loss of self-control. A defendant claiming exculpatory self-
defence on the basis of a fear of serious violence should be able to revert
to the loss of control defence where the initial plea fails. In practice,
however, a defendant alleging self-defence is claiming that his or her
conduct was reasonable in the circumstances and in many cases this is at
odds with any claim that the defendant’s actions were borne out of a loss
of self-control. The only exception arises in relation to s. 43 of the Crime
and Courts Act 2013 which effectively legitimises the use of dispropor-
tionate force in ‘startled householder’ cases. In such cases, the defend-
ant’s argument that he used disproportionate force to repel an intruder
4 Law Commission, Murder, Manslaughter and Infanticide, Law Com. No. 304 (2006).
5 This includes the decision to expand the partial defence so that it applies to those
who kill in response to a fear of serious violence; limiting the defence in other
circumstances so that it applies only where the words or conduct, or a
combination of both, cause the defendant to have a justifiable sense of being
seriously wronged; redeveloping the ‘objective test’ by replacing the ‘reasonable
man’ requirement with the concept of a ‘normal degree of tolerance and self-
restraint’; and realigning the province of judge and jury as arbiters of the partial
defence. See Law Commission, above n. 4.
6 Other deviations include the government’s decision to recognise explicitly the
relevance of the defendant’s sex with regard to the evaluative standard.
7 It is worth noting that this Act was preceded by amendments to the Criminal
Justice and Immigration Act 2008 by s. 148 of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012. See also R v McInnes [1971] 1 WLR 1600; R v
Faraj [2007] EWCA Crim 1033.
8 New South Wales Legislative Council Select Committee (NSWLCSC), The Partial
Defence of Provocation (2013) paras 9.18–9.19, available at http://www.parliament.
nsw.gov.au/provocationcommittee, accessed on 13 August 2013.
The Journal of Criminal Law
434
To continue reading
Request your trial