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Gray, Stephen --- "Aboriginal Women and the 'Battered Woman' Syndrome: Secretary v The Queen" [1998] IndigLawB 57; (1998) 4(13) Indigenous Law Bulletin 18


Aboriginal Women and the ‘Battered Woman’ Syndrome:

Secretary v The Queen

Secretary v The Queen

NT Court of Criminal Appeal

[1996] 5 NTLR 96

Martin CJ, Angel and Mildren JJ

Re-trial in NT Supreme Court

18 May 1998

by Stephen Gray

The ‘battered woman’ syndrome was recognised for the first time in the context of self-defence in Secretary v The Queen in 1996. In May this year Helen Secretary, an Aboriginal woman, was acquitted on her re-trial of the homicide of her violent de facto husband.

For the eight years prior to the killing, Helen Secretary had been mentally and physically abused by the deceased. The violence was escalating. They had just returned from a trip to Yarralin, during which time the deceased had driven dangerously, injected himself with amphetamines, and assaulted and threatened to kill her. In her house in Darwin the deceased again assaulted and made a final threat, which caused Helen Secretary to fear for her life: 'Hurry up, because I want you to come back and tickle my back because I'm gonna have a little sleep and, when I wake up, I'm fucking (inaudible) haven't fuckin' started'. The deceased then went to sleep. Secretary shot him while he was sleeping.

At her initial trial for murder, the trial judge refused to put the issue of self-defence to the jury. This decision was based upon an interpretation of s.28(f) of the Criminal Code 1983 (NT), which exculpates a person who uses lethal force in self-defence 'where the nature of the assault being defended is such as to cause the person using the force reasonable apprehension that death or grievous harm will result'. Thus an 'assault' under section 187 is required. Assault' is defined to mean either the direct or indirect application of force without consent (s187(a)), or

(b) the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words...

Why did this requirement cause Helen Secretary difficulty? Clearly the deceased threatened her before he fell asleep. Clearly at that time he had an 'actual or apparent present ability to effect his purpose. His 'present' ability was 'an ability, based on the known facts as present at the time of the making of the threat, to effect a purpose at the time is to be put into effect' (5 NTLR 96, per Mildren J at 104: see also Zanker and Vartokas (1988) 34 A Crim R 11). Helen Secretary, however, had to show that even while the deceased was asleep there was an 'assault being defended' under s28(f).

This is a familiar difficulty for women who kill violent partners. It was dealt with in the Canadian case of Lavallee [1990] 4 WWR 1, quoted by Mildren J in Secretary at 105-6, in which a woman shot a violent partner as he was leaving the room. In Lavallee Justice Bertha Wilson commented that to require a battered woman to "wait until the physical assault is 'underway' before her apprehensions can be validated in law would, in the words of an American court, be tantamount to sentencing her to 'murder by instalment"' (at 25-6). The requirement of 'imminence' has, of course, been relaxed at common law, which now requires only that 'the accused believed, on reasonable grounds, that it was necessary to do in self-defence what he [sic] did' (Zecevic [1987] HCA 26; (1987) 162 CLR 645 at 661). A useful analogy for male judges and jurors, used in Lavallee, is perhaps that of a hostage: 'If the captor tells her that he will kill her in three days time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day?' (Secretary, quoting from Wilson J in Lavallee, per Mildren J at 107).

Secretary was found not guilty of murder but guilty of manslaughter, by reason of provocation. Judgment was postponed and she was given bail, however, pending an appeal to the Court of Criminal Appeal on the issue of self-defence.

It was held by Angel and Mildren JJ, Martin CJ dissenting, that the issue of self-defence should have been left to the jury. Angel J held that the question of whether an assault continues or is 'on foot' is a question of fact for the jury in any particular case (at 98). Mildren J also held that the question of whether the assault had been completed is one for the jury:

In my view it was open to the jury to conclude that it was not completed. So long as the threat remained, and nothing changed to remove it, the threat continued. The circumstances as to the ability of the deceased to have carried out his threat when he awoke also had not changed. I see no reason why the assault should have been regarded as spent merely because the deceased was temporarily physically unable to carry out his threat (at 104).

This line of reasoning is probably the only basis under the NT Code upon which self-defence in Helen Secretary's situation could be found to exist. A jury is required to focus upon the question of whether an assault was still underway at the time the woman committed the lethal act. If they decide that an assault was committed by the man before he fell asleep, that a further assault was likely to be committed by the man when he woke up, and that the woman at the time of the lethal act was under a reasonable apprehension that she would suffer death or grievous harm at the time of that future assault, then, without more, self-defence would fail. In that situation there would be no assault actually underway at the relevant time.

This situation is supported by the words 'actual or apparent present ability in s187(b). A jury may well conclude that a sleeping man cannot have an 'actual or apparent present ability' to carry out threats he made before falling asleep. This, indeed, was the conclusion reached by Martin CJ in dissent, who argued that self-defence could not apply, since Helen Secretary was in reality defending herself against a threatened future assault.

The jury in Secretary, therefore, was required to focus upon a question which is essentially irrelevant to women in Helen Secretary's situation: whether a technical 'assault' existed at the relevant time. The crucial question in such cases, as Mildren J pointed out, is whether the accused's belief that she could not preserve herself from being killed except by killing the violent partner was reasonable (see Mildren J at 106-7). This is now the crucial question at common law. It would seem, however, that the question before the jury as formulated by Mildren J was necessitated by the words of the Code.

A new trial was ordered, with the issue of self-defence to be put to the jury on the basis outlined by the Court of Criminal Appeal. The prosecution reduced the charge to manslaughter.

The case made front page news in Darwin. There was indignation in some quarters that a woman who shot a sleeping man should get away with it. The reaction, and the reporting, of the case indicates a low level of public understanding of the 'battered woman' defence. Many people do, indeed, believe that self-defence should only be applicable where an assault is actually 'on foot', and could not understand how an assault could have been occurring in this situation. The result should not necessarily be cause for optimism that in future Northern Territory cases the defence is likely to find favour with a jury.

There is no discussion in Secretary of the significance of Helen Secretary's Aboriginality. In other cases involving battered Aboriginal women, cultural differences, including an inability to answer direct questions from untrusted people, and feelings of 'shame', have led to clear miscarriages of justice: see Julie Stubbs and Julia Tolmie, 'Race, Gender and the Battered Woman Syndrome: An Australian Case Study, (1995) 8 Canadian Journal of Women and the Law 122. Helen Secretary had lived a significant part of her life in Darwin. The deceased was non-Aboriginal. In other cases, particularly involving Aboriginal people from remote communities, the courts - in many cases without the aid of an interpreter - may be unlikely to have even this relative degree of success in overcoming the racial and gender gap.

Stephen Gray is a lecturer in the Law Faculty, Northern Territory University.

References

Ian Leader-Elliot, 'Battered But Not Beaten: Women Who Kill in Self Defence' [1993] SydLawRw 38; (1993) 15 Sydney Law Review 403 at 405.

Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, 'Defending Battered Women on Trial: the Battered Woman Syndrome and its Limitations', (1992) 16 Criminal Law Journal 369.

Julie Stubbs and Julia Tolmie, 'Race, Gender and the Battered Woman Syndrome: An Australian Case Study', (1995) 8 Canadian Journal of Women and the Law 122.


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