Osland v The Queen

Osland v The Queen - [1998] HCA 75 - HCA 1998 case summary — Zoe

[5]

The working hypothesis of the battered woman syndrome was first introduced in Lenore Walker's 1979 book, The Battered Woman. 2. eg, Sheehy, Stubbs and Tolmie, Defending Battered Woman on Trial: The Battered Woman Syndrome and its Limitations, Criminal Law Journal, vol 16 (1992) 369; Stubbs and Tolmie, Race, Gender and the Battered Woman Syndrome: An Australian Case Study, Canadian Journal of Women and the Law, vol 8 (1995) 122; Beri, Justice for Women Who Kill: A New Way?, Australian Feminist Law Journal, vol 8 (1997) 113; Australia, Committee of the Standing Committee of Attorneys-General, Discussion Paper, Model Criminal Code, Ch 5, Fatal Offences Against the Person, June 1998, p 89. 3. eg, Edwards, Battered women who kill [1990] New Law Journal 1380; O'Donovan, Law's Knowledge: The Judge, The Expert, The Battered Woman, and Her Syndrome, Journal of Law and Society, vol 20 (1993) 427; Wells, Battered woman syndrome and defences to homicide: where now?, Legal Studies, vol 14 (1994) 266; Chan, A Feminist Critique of Self-Defence and Provocation in Battered Women's Cases in England and Wales, Women & Criminal Justice, vol 6 (1994) 39; Griffith, Battered Woman Syndrome: A Tool for Batterers?, Fordham Law Review, vol 64 (1995) 141; Shaffer, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee, University of Toronto Law Journal, vol 47 (1997) 1. 4. eg, R v Runjanjic ; R v Kontinnen (1991) 56 SASR 114 R v Hickey (unreported; Supreme Court of NSW; 14 April 1992); R v Gunnarsson Wiener (unreported; Supreme Court of Tas; 13 August 1992); R v Woolsey (unreported; Supreme Court of NSW; 19 August 1993); R v Kina (unreported; Court of Appeal (Q); 29 November 1993); R v Chhay (1994) 72 A Crim R 1 R v Secretary (1996) 86 A Crim R 119 5. eg, self-defence: R v Lavallee [1990] 1 SCR 852 R v Wang [1990] 2 NZLR 529 R v Oakes [1995] 2 NZLR 673provocation: R v Ahluwalia (1992) 96 CrApp R 133. 6. eg, Evatt, Foreword to Graycar and Morgan, The Hidden Gender of Law, (1990), p vii. As to evidence of violence by female partners on male partners, see Levinger (ed), Divorce and Separation: Conditions, Causes and Consequences (1979); Steinmetz, The Battered Husband Syndrome, Victimology, vol 2 (1978) 499 and other studies cited Scutt, Even in the Best of Homes - Violence in the Family, (1990), pp 98, 109. 7. See, eg, Walker, The Battered Woman (1979); Walker, The Battered Woman Syndrome (1984). 8. Simone, Kill(er) man was a Battered Wife the application of Battered Woman Syndrome to Homosexual Defendants: The Queen v McEwen, Sydney Law Review, vol 19 (1997) 230. 9. Heller, Ill-founded outrage, The Times Literary Supplement, 13 August 1993, p 11, cited in Garcia v National Australia Bank (1998) 194 CLR 395 at 425

[9]

It is possible that those women who are unable to fit themselves within the stereotype of a victimised, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided. For instance, women who have demonstrated too much strength or initiative, women of colour, women who are professionals, or women who might have fought back against their abusers on previous occasions, should not be penalised for failing to accord with the stereotypical image of the archetypal battered woman. Similarly, Suzanne Beri has observed that [199] : BWS evidence interacts with cultural, gender stereotypes with the result that women, who kill abusers, now have to fit within an "abused woman" straightjacket [sic]. This corresponds to a stereotype of a white, middle-class woman and stresses passivity, docility and helplessness. It excludes the experience of Maori women whose experience of abuse is also shaped by racism. 1. Goodyear-Smith, Re Battered Woman's Syndrome [1997] NZLJ 436-438 [1998] New Zealand Law Journal 39. 2. McDonald, Battered Woman Syndrome [1997] New Zealand Law Journal 436, p 437. 3. Budrikis, Note on Hickey: The Problems with a Psychological Approach to Domestic Violence, Sydney Law Review, vol 15 (1993) 365. 4. Stubbs and Tolmie, Race, Gender, and the Battered Woman Syndrome: An Australian Case Study, Canadian Journal of Women and the Law, vol 8 (1995) 122; Faigman and Wright, The Battered Woman Syndrome in the Age of Science, Arizona Law Review, vol 39 (1997) 67, at pp 111-113; Shaffer, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee, University of Toronto Law Journal, vol 47 (1997) 1, at pp 13-14, 25-33. 5. Stubbs and Tolmie, Race, Gender, and the Battered Woman Syndrome: An Australian Case Study, Canadian Journal of Women and the Law, vol 8 (1995) 122. 6. Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, Women's Rights Law Reporter, vol 9 (1986) 195; Freckelton, Battered Woman Syndrome, Alternative Law Journal, vol 17 (1992) 39; Volpp, (Mis)Identifying Culture: Asian Women and the Cultural Defense, Harvard Women's Law Journal, vol 17 (1994) 57, at p 93; Moore, Battered Woman Syndrome: Selling the Shadow to Support the Substance, Howard Law Journal, vol 38 (1995) 297. 7. [1998] 3 SCR 123 at 142. 8. Beri, Justice for Women Who Kill: A New Way?, Australian Feminist Law Journal, vol 8 (1997) 113, at p 123.

[14]

Goodyear-Smith, Re Battered Woman's Syndrome [1997] NZLJ 436-438 [1998] New Zealand Law Journal 39. 2. Goodyear-Smith concludes that BWS fails to meet the Daubert test for scientific reliability in the United States law courts: scientific testability; error criteria; support in peer review journal publications; and general scientific acceptance. She concludes that while BWS might be considered valid by clinical psychologists who work in the field of domestic violence and hence have an interest, there would be "few experimental psychologists who would consider it a valid entity": Goodyear-Smith, Re Battered Woman's Syndrome [1997] NZLJ 436-438 [1998] New Zealand Law Journal 39. See also Faigman and Wright, The Battered Woman Syndrome in the Age of Science, Arizona Law Review, vol 39 (1997) 67, at pp 107-111. 3. Faigman and Wright, The Battered Woman Syndrome in the Age of Science, Arizona Law Review, vol 39 (1997) 67. 4. Goodyear-Smith, Re Battered Woman's Syndrome [1997] NZLJ 436-438, [1998] New Zealand Law Journal 39. 5. Shaffer, R v Lavallee: A Review Essay, Ottawa Law Review, vol 22 (1990) 607; Grant, The Syndromization of Women's Experience in Martinson et al, A Forum on Lavallee v R: Women and Self Defence, University of British Columbia Law Review, vol 25 (1991) 23, at pp 53-54; Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, Michigan Law Review, vol 90 (1991) 1, at p 42; Yeo, Resolving Gender Bias in Criminal Defences, Monash University Law Review, vol 19 (1993) 104, at p 111; Manning, "Self Defence and Provocation: Implications for battered women who kill and for homosexual victims", NSW Parliamentary Library Research Service (Briefing Paper No 33/96), December 1996, pp 19-20; Shaffer, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R v Lavallee, University of Toronto Law Journal, vol 47 (1997) 1. 6. Schneider, Describing and Changing: Women's Self-Defense Work and the Problem of Expert Testimony on Battering, Women's Rights Law Reporter, vol 9 (1986) 195, at p 199; Moore, Battered Woman Syndrome: Selling the Shadow to Support the Substance, Howard Law Journal, vol 38 (1995) 297, at pp 301-302. 7. Australia, Committee of the Standing Committee of Attorneys-General, Discussion Paper, Model Criminal Code, Ch 5, Fatal Offences Against the Person, June 1998, p 89. The authors conclude that provocation is gender biased and unjust. For this and other reasons, they recommend its abolition. They state that the theory underlying BWS does not comfortably co-exist with the "partial defence" of provocation as it has developed in common and statute law in Australia (at p 103); cf Bradfield, Comment on Green v The Queen, Criminal Law Journal, vol 5 (1998) 296, at p 302. 8. Victoria, Law Reform Commission, Homicide (Report No 40), (1991), pars 164-168. For criticism, see Women's Coalition Against Family Violence, Blood on whose hands? (1994), pp 117-118.

[23]

Taken in context, I do not agree that these words are to be read as endorsing an entirely new and discrete defence to a charge of culpable homicide arising from proof of the presence of BWS or an analogous abusive relationship. A few paragraphs earlier in its opinion in Malott , the Court had made it plain that "the charge as a whole should be examined to ascertain whether the jury were given an adequate charge on battered woman syndrome as it relates to self-defence" [217] . In her reasons in that case, L'Heureux-Dubé J expressly stated, correctly in my view, that BWS was not "a legal defence in itself" [218] . It seems unthinkable that the Supreme Court of Canada, if it had been minded to create an entirely new "defence" or ground of exculpation (assuming that to be possible), would not have done so in language more explicit and with more elaborate reasoning. What that Court, and courts in other jurisdictions [219] , have been at pains to emphasise is that any expert evidence of BWS, or an analogous condition, must be related to the facts of the particular case. Specifically, whilst such expert evidence could not be tendered to usurp the decisions reserved by law to the jury, it might be offered as relevant to questions such as (1) why a person subjected to prolonged and repeated abuse would remain in such a relationship; (2) the nature and extent of the violence that may exist in such a relationship before producing a response; (3) the accused's ability, in such a relationship, to perceive danger from the abuser; and (4) whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the charge. These considerations, accepted in Malott , are equally applicable in Australia where expert evidence is received to describe common features of the conduct of people in abusive relationships and where provocation or self-defence are put in issue.

[31]

[W]ill involve considering whether or not [Mr Albion and the appellant] killed [the deceased] when experiencing a loss of self-control, what might possibly be regarded such loss of control that an ordinary person in those circumstances, that is their circumstances, might experience [Y]ou might use the battered woman syndrome to reach a conclusion that the Crown had not satisfied you, when [the appellant] participated in his killing, that she had not finally snapped or reached a point where control was lost in response to a final provocation; and that as a woman who had been, as they would contend, degraded and beaten down over a period of years, that her reaction was that of an ordinary person in that situation. In the light of that provocation you may not have much difficulty in concluding, if you accept [the appellant's] and all the others' evidence, that she was at least at some stages a battered woman within the syndrome. I read this and other portions of the instruction on this issue (some of them set out in the reasons of Callinan J) as highly favourable to the appellant. However, the failure of the jury to resolve the issue of provocation against the Crown is scarcely surprising given the evidence. Although, as described by the appellant and her son, the past conduct of the deceased towards them was deplorable, there was clear evidence (most especially in the intercepted telephone conversations) that such conduct had abated in the years immediately preceding the killing. There was no suggestion in the appellant's evidence of any particular conduct on the part of the deceased in the day or days preceding his death which could be described as "the last straw". Even if the jury were satisfied that the appellant could be classified as a "battered woman", and a true victim of BWS as described in the evidence, there would have been abundant justification for a conclusion that her conduct, in furtherance of her plan to kill her husband, was coolly premeditated. In her case, there was little or no evidence to demonstrate that she had lost that level of self-control which the common law and statute law in Australia ascribes to the "ordinary person" in the position of the accused [221] .

Parties

Applicant/Plaintiff:

Osland

Respondent/Defendant:

The Queen

Cases Cited (53)

High Court of Australia Gaudron, McHugh, Gummow, Kirby and Callinan JJ Osland v The Queen [1998] HCA 75

See King v The Queen (1986) 161 CLR 423 at 433-436, per Dawson J (with whom Gibbs CJ, Wilson and Brennan JJ agreed); Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148, per Richmond J; R v Andrews Weatherfoil Ltd, Sporle and Day (1971) 56 CrApp R 31 at 40. 2. Surujpaul v The Queen [1958] 1 WLR 1050 at 1053[1958] 3 All ER 300 at 301 R v Anthony [1965] 2 QB 189 at 192 Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148 Turner, Kenny's Outlines of Criminal Law, 18th ed (1962), p 107; Gillies, Criminal Law, 4th ed (1997), p 158. 3. See Surujpaul v The Queen [1958] 1 WLR 1050 at 1053[1958] 3 All ER 300 at 301 R v Anthony [1965] 2 QB 189 at 192 Sweetman v Industries and Commerce Department [1970] NZLR 139 at 148 R v Darby (1982) 148 CLR 668 at 685, per Murphy J; King v The Queen (1986) 161 CLR 423 at 434, per Dawson J; Smith and Hogan, Criminal Law, 8th ed (1996), pp 152-153; Gillies, Criminal Law, 4th ed (1997), p 158.

Transcript of proceedings, Friday 24 April 1998, at 146, 168-169, 181. 2. White v Ridley (1978) 140 CLR 342 at 346, per Gibbs J; at 353-354, per Stephen J (Aickin J agreeing at 363); R v Hewitt [1997] 1 VR 301 at 311-313, per Winneke P; Williams, Textbook of Criminal Law, 2nd ed (1983), at 368-369; see commentary of Professor Sir John Smith QC accompanying R v Millward [1994] CrimLR 527 at 530; Smith and Hogan, Criminal Law, 8th ed (1996), p 128. 3. See transcript of proceedings, Friday 24 April 1998, at 146, 168-169, 181. 4. [1976] QB 217. See transcript of proceedings, Friday 24 April 1998, at 181. 5. Although the result in R v Cogan and Leak has been explained on the "innocent agent" basis by some commentators, it is to be observed that that proposition is not found expressed in the reasons for judgment. The reasoning attributed to R v Cogan and Leak has been described as "demonstrably unsound" (Williams, Textbook of Criminal Law, 2nd ed (1983), p 371) and "contrary to principle" (Smith and Hogan, Criminal Law, 8th ed (1996), p 128).

The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission [25] . But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission [26] . It is to be observed that in this passage reference to presence at the scene was made with respect to the case of a principal in the second degree. The reference was not repeated when dealing with liability established by reason of a common purpose. Rather, in a footnote, the Court, by way of comparison, referred to the statement of principle by Smith J in R v Lowery and King [No 2] [27] . Smith J did propound the principle in terms involving a presence at the scene of a crime. 1. (1995) 183 CLR 108 at 113-114, per Brennan CJ, Deane, Dawson, Toohey and Gummow JJ. 2. See Giorgianni v The Queen (1985) 156 CLR 473 3. cf R v Lowery and King [No 2] [1972] VR 560 at 560, per Smith J. 4. [1972] VR 560 at 560.

No case was cited in which a person who did not actually perpetrate, or was not one of those who actually perpetrated, the crime, but who acted in concert with the actual perpetrator at the time and place of the crime, was held to be a principal offender. None of the cases described by Lanham [31] as cases in which those acting in concert while present at the offence were "in effect" treated as principals in the first degree, decide that as a matter of law such persons are necessarily principals in the first degree. [32] 1. [1989] VR 97 at 123. 2. (1980) 143 CLR 108. 3. The cases cited are R v Kalinowski; R v Timbury (1930) 31 SR(NSW) 377; R v Surridge; R v Surridge; R v Harris (1942) 42 SR(NSW) 278; R v Smith [1963] 1 WLR 1200[1963] 3 All ER 597and R v Vandine [1970] 1 NSWR 252 4. Referring to Lanham, Complicity, Concert and Conspiracy, Criminal Law Journal, vol 4 (1980) 276. 5. R v Demirian [1989] VR 97 at 123-124

Director of Public Prosecutions v Shannon [1975] AC 717 at 770, per Lord Salmon. 2. [1975] AC 717. 3. Shannon [1975] AC 717 at 771 4. Shannon [1975] AC 717 at 772

R v Bonython (1984) 38 SASR 45 at 46-47, per King CJ. See also Clark v Ryan (1960) 103 CLR 486 at 491, per Dixon CJ; R v Turner [1975] QB 834 at 841, approved in Murphy v The Queen (1989) 167 CLR 94 at 111, per Mason CJ and Toohey J; at 130, per Dawson J; Farrell v The Queen (1998) 194 CLR 286 at 293, per Gaudron J.

R v Bingley (1821) Russ& Ry 446 [168 ER 890] (Bingley's part was to impress the date lines and numbers on forged bank notes; other associates were responsible for the printing and signatures); R v Ferguson (1916) 17 SR(NSW) 69 at 76 (assisting in making a plate to be used for printing counterfeit notes). 2. Erringtons' Case (1838) 2 Lewin 217 [168 ER 1133]; R v Clarke [1959] VR 645 3. Crimes Act 1958 Vic, s 322B. 4. Crimes Act 1958 Vic, s 323.

R v Higgins (1801) 2 East 5 at 19[102 ER 269 at 274-275]; R v See Lun (1932) 32 SR(NSW) 363 at 364; Howell v Doyle [1952] VLR 128 at 133 Jackson v Horne (1965) 114 CLR 82 at 94 2. R v Kupferberg (1918) 13 CrApp R 166; R v Clarkson [1971] 1 WLR 1402[1971] 3 All ER 344 3. R v Coney (1882) 8 QBD 534 Wilcox v Jeffery [1951] 1 All ER 464 4. Mohan v The Queen [1967] 2 AC 187 5. Lanham, Limitations on Accomplice Liability, Criminal Law Journal, vol 6 (1982) 306, at p 313. 6. R v Dunn (1930) 30 SR(NSW) 210 at 213.

[W]here a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant. This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert. If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene. It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity. 1. R v Howe [1987] AC 417 at 426, 436, 438, 446, 458. 2. [1987] AC 417. 3. [1974] QB 776. 4. R v Howe [1987] AC 417 at 458

[1985] AC 168. 2. Chan Wing-Siu [1985] AC 168 at 175.

R v Roach [1948] NZLR 677 2. R v Manning (1883) 12 QBD 241 at 245 3. R v Darby (1982) 148 CLR 668 Director of Public Prosecutions v Shannon [1975] AC 717

R v Durante (1972) 56 CrApp R 708 at 714; R v Bacash [1981] VR 923 at 929 R v Nanette [1982] VR 81 at 83This may include cases which suggest a compromise: MacKenzie v The Queen (1996) 190 CLR 348 at 368 2. Jones v The Queen (1997) 191 CLR 439 at 455 R v Hunt [1968] 2 QB 433 at 438 R v Cicio (1968) 87 WN(NSW) (Pt 1) 449 at 453; R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118 at 126[1972] 1 All ER 65 at 71-72 R v Bacash [1981] VR 923 at 929 R v Nanette [1982] VR 81 at 83 Sweetman v Industries and Commerce Department [1970] NZLR 139 at 149

R v Osland [1998] 2 VR 636 at 638 2. (1993) 178 CLR 193. 3. Driscoll v The Queen (1977) 137 CLR 517 at 541 R v Christie [1914] AC 545 at 560 4. cf Robinson v The Queen (1991) 180 CLR 531 Stafford v The Queen (1993) 67 ALJR 510 5. R v Osland [1998] 2 VR 636 at 638 6. R v Osland [1998] 2 VR 636 at 664-665

(1986) 161 CLR 423

(1982) 148 CLR 668

(1991) 172 CLR 378

(1985) 156 CLR 464

(1977) 137 CLR 633

(1978) 140 CLR 342

(1922) 30 CLR 246

(1995) 183 CLR 108

(1980) 143 CLR 108

(1985) 156 CLR 473

(1955) 93 CLR 493

(1993) 178 CLR 193

(1991) 171 CLR 468

(1997) 191 CLR 275

(1986) 161 CLR 315

(1984) 38 SASR 45

(1960) 103 CLR 486

(1989) 167 CLR 94

(1998) 194 CLR 286

(1995) 183 CLR 58

(1987) 162 CLR 645

(1991) 56 SASR 114

(1996) 5 NTLR 96

(1990) 171 CLR 312

(1991) 180 CLR 531

(1993) 67 ALJR 510

(1965) 114 CLR 82

(1978) 140 CLR 108

(1998) 197 CLR 316

(1997) 191 CLR 439

(1996) 190 CLR 348

(1964) 111 CLR 665

(1977) 137 CLR 517

(1998) 194 CLR 395

(1997) 191 CLR 334

(1989) 168 CLR 110

(1989) 166 CLR 283

(1967) 121 CLR 205

(1978) 140 CLR 364

At a glance

Court

Decision date

Before

Source

Judgment (277 paragraphs)

Parties

Cases Cited (53)