R v Secretary

[1996] NTCCA 18

PARTIES:	THE QUEEN
v
SECRETARY, Helen Patricia
TITLE OF COURT:	COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NOS:	No. CA20 of 1995
DELIVERED:	Darwin, 2 April 1996
HEARING DATES:	13 December 1995
JUDGMENT OF:	MARTIN CJ., ANGEL & MILDREN JJ.
CATCHWORDS:

Criminal liability and capacity - Defence matters -

Self-defence - Woman shot dead her de facto
husband while he was asleep - Husband assaulted
wife immediately before going to sleep - History
of de facto husband abusing wife and children -
Trial judge concluded that self-defence was not
open for consideration by jury in circumstances
of case - Question of law reserved for

consideration of appeal court under Criminal Code

(NT), s408(1) - Whether trial judge’s conclusion

was correct - Whether it would be open for jury
to find that, at time shot was fired, assault was
still in progress and wife had acted in self-
defence Angel & Mildren JJ - Assault continued so
long as threat and apparent ability to carry out
such remain - Assault should not be regarded as
spent merely because person temporarily
physically unable to carry out threat - New trial
ordered - Martin CJ (dissenting) - there must be
a contemporaneous connection between the assault

and the act of self defence -

Criminal Code Act 1994 (NT), ss28(f),187,310(1),408(1)
Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC
67, referred to.
Lavallee v R [1990] 4 WWR 1, approved.
R v Cadden (1989) 70 CR (3d) 340, referred to.
R v Clarke (1956) St R Qd 93, followed.
R v Demicoli [1971] Qd R 358, applied.
R v Horncustle (1972) 19 CRNS 362, referred to.
R v Hudson [1971] 2 QB 202, referred to.
R v Whynot (1983) 37 CR (3d) 198, considered.
Thomas v The King (1937) 59 CLR 279, followed.
Zecevic v Director of Public Prosecutions (Vic) (1986-
87) 162 CLR 645, followed.
Smith and Hogan, Criminal Law, Fourth Edition, pp351-
352.
Glanville Williams, Assault and Words, [1957] Crim. LR

219.

REPRESENTATION:

Counsel:

Appellant:	Mr D Ross QC
Mr D Lawrence
Respondent:	Mr R Wild QC
Mr J Birch

Solicitors:

Appellant:	NAALAS
Respondent:	DPP

Judgment category classification: A
Judgment ID Number: mar96007
Number of pages: 23
mar96007
IN THE COURT OF CRIMINAL
APPEAL OF THE NORTHERN

TERRITORY OF AUSTRALIA

No. CA20 of 1995

IN THE MATTER of the Criminal Code

AND IN THE MATTER of a question of
law reserved in a trial for the
consideration of the Court under

s408(1) of the Criminal Code

BETWEEN

THE QUEEN

AND:

HELEN PATRICIA SECRETARY

CORAM:  MARTIN CJ., ANGEL & MILDREN JJ.

REASONS FOR JUDGMENT

(Delivered 2 April 1996)

MARTIN CJ:

I have had the benefit of the reasons and conclusions

reached by Angel and Mildren JJ. in this matter. With

respect, I am unable to agree that the answer to the

question is “No”. I state my reasons briefly.

The answer to the question lies in consideration of

the words in s28(f): “the nature of the assault being
defended”. The “assault” in this case was the threatened

application of force evidenced by the deceased’s words.

Such a threat is not enough, s187(b) proceeding “where the

person ... threatening has an actual or apparent present

ability to affect his purpose”, that is, to directly or

indirectly apply force to the accused without her consent.

In this context the word “being”, in relation to the

assault in respect of which the accused is said to be

acting in self defence, denotes a contemporaneous

connection between the assault and the act of self defence.

This notion is reinforced by the need for there to have

been in the deceased an actual or apparent present ability

to apply force at the time of the threat. The word

“present” means occurring at this time or now. Neither

circumstance existed when the accused shot him to death.

As much as the evidence given at the trial, as set out

by his Honour, may excite sympathy for the accused and

others in a similar predicament, the remedy, if there is to

be one, lies with the amendment of the Code which is a

matter for the Parliament.

I would answer the question “Yes”.

ANGEL J:

The question reserved and the facts giving rise to the

question are set out in the reasons of Mildren J.

The question reserved is one of pure law. In

considering questions of pure law, I remind myself that

"there are no sentimental considerations which could have

any tendency to lead us to decide on one side or the other;

what we have to do is to protect the concept ... from being

disfigured by a wrong decision.", as Lord Moulton said in

Herd v Weardale Steel, Coal and Coke Co. Ltd [1915] AC 67

at 77. Lord Moulton was referring to the tort of false

imprisonment. We are here dealing with self-defence. The

question for this court is whether the provisions of s28(f)

of the Criminal Code (self-defence) can apply to the

deliberate shooting of a man whilst he is asleep.

Section 28(f), inter alia, speaks of "an assault being

defended." It is plain enough, I think, that in order for

self-defence to be open, an assault must be on foot at the

time of the shooting. 'Assault' is defined in s187 of the

Code. It is necessarily incorporated into s28(f). Section

187, so far as relevant, reads:

"In this Code 'assault' means -

(a)	the direct or indirect application of force to a person without his consent ... 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 ..."

The facts in the stated case involve a threatened

application of force as comprehended by s187(b) above. For
there to be an assault that section requires a person who

utters an oral threat to have an "actual or apparent

present ability" to effect that threat. The inclusion of

the word 'present' indicates that the ability (actual or

apparent) to effect the threat must exist at the time the

threat is uttered. Both the threat and the ability (actual

or apparent) to effect the threat may endure for some time

after the utterance of the threat. The assault endures for

so long as the threat and ability to effect it coexist.

A temporal limitation exists within s187(b) and

consequently within s28(f). Whether an assault continues

or is 'on foot' is a question of fact. That is a question

of fact for the jury to decide in any particular case.

In the present case there was a threat to apply force

at a future stated time. The threat was never withdrawn.

At the time the threat was uttered there was an ability

(actual or apparent) to carry out the threat when the

stipulated time came. On the facts, short of being

disabled from effecting the threat, whether by pre-emptive

strike or the accused's flight or otherwise, the deceased's

ability to carry out the threat continued.

There may exist difficulty in discriminating between a

defensive response to a prolonged threat of force where

there may be an assault 'on foot' and a response that

simply involves a deliberate desire to exact revenge for

past and potential - but unthreatened - future conduct. As

the High Court said in Zecevic v Director of Public

Prosecutions (Vic) (1986-87) 162 CLR 645 at 662-3:

"No doubt it will often also be desirable to remind
the jury that in the context of self-defence it should
approach its task in a practical manner and without
undue nicety, giving proper weight to the predicament
of the accused which may have afforded little, if any,
opportunity for calm deliberation or detached
reflection."

In my view ss187(b) and 28(f) comprehend people taking

action to defend themselves from a threatened assault,

availing themselves of the excuse of 'self-defence' even if

their action is in the nature of a pre-emptive strike.

Having regard to the nature of the threat and the

relationship between the accused and the deceased, as

recounted in the stated case, it was in my view open for

the jury to find that an assault was on foot at the time of

the shooting (when the deceased was asleep) and that the

accused was acting in self-defence. In my view self-

defence ought to have been left to the jury.

I would answer the question reserved in the negative,

set aside the verdict of the jury and order a re-trial on

the count of murder.

MILDREN J:

This is a question of law reserved from the

consideration of the Court pursuant to s408(1) of the

Criminal Code.

The special circumstances under which the question of

law was reserved, as stated by the trial judge, are as

follows:

"On 27 November 1995 the accused Helen Patricia
Secretary was arraigned on the following charge:
That on 20th November 1994 at Darwin in the
Northern Territory of Australia you murdered Darren
Robert Geoffrey Nelson contrary to section 162 of
the Criminal Code.

She pleaded not guilty to that charge. She stood her trial. Pursuant to the evidence given at the trial, it was open to the jury to be satisfied as follows:-

The accused Helen Secretary had been married
to the deceased in a de facto common law
relationship for 11 years. That relationship
was a violent one. For the last 8 years of
the relationship the deceased had verbally,
mentally and physically abused the accused
and their children. In the last couple of
months of their relationship prior to the
killing the deceased's violence had increased
and his abuse towards the accused had grown
more violent. He had threatened to kill her.
In this period he had been taking drugs
(probably amphetamines) by injection. The
pathologist's evidence is that the deceased
was a chronic drug abuser. Approximately one
month before the shooting he had beaten the
accused with hands and a belt to the extent
that neighbours hearing the same had reported
the matter to the Police. Later that day the
Police attended the household and seized two
of his three guns. Other assaults on the
accused were committed by the deceased
following which she left the household and
obtained a Restraining Order against the
deceased. She spent just under a week at the
Women's Shelter. The deceased left the
household for about a week. Upon the accused
returning to her house the deceased continued
to breach the Order by visiting the household
and ultimately moving back in. During this
period the deceased sexually assaulted the
accused. On the night he moved back in
permanently he assaulted the accused's sister
Lynette Shields and her child. The Police
attended this night but no action was taken
against the deceased. The accused explained
his presence to the Police. This was done
under threats from the deceased. The day
before the shooting the accused, her young
sister Jacqueline Treves and the deceased
drove some neighbours down to Yarralin.
Prior to leaving the deceased assaulted the
accused by threatening her with a knife. He
then used a knife to cut the telephone cord
in the household. He did this in order to
prevent her phoning the Police. The trip
down to Yarralin was relatively uneventful.
The return trip was not. The deceased drove
the whole distance there and back. On the
way back he assaulted the accused, verbally
abused her and threatened to kill her. The
deceased's driving was dangerous; speeding
and driving off and on the road. He stopped
the car several times and left the vehicle.
At one stage the accused and her sister tried
to drive away but failed. During this trip
the accused saw the rifle, which the deceased
had earlier told her he had thrown in a bin,
in the back of the vehicle. During the trip
back the accused injected himself, probably
with amphetamine.
Upon their return to the house the deceased
was still in an aggressive mood. He was
swearing at the accused and other family
members. The accused's sister deliberately
stayed around for fear of the accused's
plight. The deceased retired to his bedroom
and summoned the accused there. At one stage
the deceased threatened to use the belt
against the accused. He assaulted her by
punching her to the head and throttling her.
He then ordered her to get him a drink of
water which she did and then to get his
cassette player which she did. Upon her
going to leave the room the accused then sat
up from his bed and said the following words
"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."
Following those words, the accused then
feared for her life. She left the room,
picked up a bullet from a cabinet in the
living room, went downstairs and loaded the
gun which was in the back of the car. She
walked back up the stairs, walked down the
hall, walked into the bedroom and saw the
deceased lying on the mattress, asleep. She
walked around his head and pointed the gun at
his back and fired. The deceased died almost
immediately. At the point when the deceased
uttered his last words the accused believed
that this was the ultimate threat, the
deceased was really going to kill her and her
life was going to end very shortly.

After all the evidence from the prosecution and the
defence was in, I made the following ruling on a
Crown submission that the issue of self-defence

should not be left to the jury:-

"I considered on the the evidence in this
case, taken in its highest in favour of the
accused, that she cannot rely on section
28(f) of the Criminal Code to contend that
her shooting of the then sleeping man, Darren

Nelson, was justifiable homicide.

In other words, on the evidence I consider
there is no case fit to go to the jury on the
basis that the Crown may fail to establish
beyond reasonable doubt that this killing was
not justified because the accused, when she
fired the rifle at Darren Nelson, may have
been acting in self defence in terms of the

Code."

Following the ruling, counsel for the accused
applied under section 408(1) of the Criminal Code
that the question of law the subject of the ruling
be reserved for the consideration of the Court of
Criminal Appeal. As a consequence of the ruling,
the accused was re-arraigned at the request of the
defence and pleaded `not guilty' to the murder of
Darren Nelson but guilty to his manslaughter, by
reason of provocation. The Crown accepted that
plea in full discharge of the indictment. I then
instructed the jury that the only proper verdict
they could return was a verdict of not guilty to
murder but guilty of manslaughter, by reason of
provocation. This they did and their verdict was
recorded. No conviction was formally recorded, and
judgment was postponed under section 408(2) of the
Criminal Code until the question reserved had been
considered by the Court of Criminal Appeal. The
matter was meanwhile adjourned to 10am on 22
January 1996, for mention. The accused's bail was
enlarged to that date."

The question of law reserved by the trial judge is:

"Was my ruling of 1 December 1995 correct, that
self-defence was not open for consideration by the

jury in the circumstances of this case?"

Procedural Matters

Two preliminary questions arose during the hearing.

The first was raised by the Court which expressed doubts as

to the form of the question of law so stated. The second

concerned the fact that the appeal books contained more

material than the special circumstances and the question as

stated, viz., the indictment, and the transcript of

proceedings. Counsel for the accused, Mr Ross Q.C.,

indicated that he wished to refer the Court to certain

passages in the transcript in order to flesh out the

relevant facts. The Acting Director of Public

Prosecutions, Mr Wild Q.C., opposed this course. The

majority of the Court indicated to counsel that the

question as stated may be too broad and may need to be

reframed or referred back to the trial judge.

Notwithstanding this indication, neither counsel sought to

do anything about this suggestion and the Court proceeded

to hear the matter. As to Mr Ross' application, leave was

granted to refer the Court to the additional material on

the basis that the propriety of this course would be ruled

upon at a later time.

As to the first question, in my opinion the question as

stated by the trial judge is a question of law and there

was no occasion to amend it or refer it back. Whether or

not the trial judge was correct in failing to leave self

defence to the jury is clearly a question of law. That

question cannot be decided except by reference to the

special facts of the case. Section 408(1) required the
trial judge "to state, in a case signed by him, the

question of law so reserved with the special circumstances

upon which it arose..." That is precisely what the trial

judge has done. In stating the facts, the trial judge has

obviously stated them in a form most favourable to the

accused. That also is essential for obvious reasons where

the question is whether the trial judge was correct in

refusing to leave a "defence" to the jury. It may well be

that the question could have been more narrowly confined

having regard to the way in which the argument proceeded

both before the trial judge and before us. However it is

often difficult for a trial judge to be sure precisely how

the argument may be presented when it comes before this

Court, and he may be wise not to confine the question too

narrowly.

As to the second question, the authorities show that

this Court may have regard only to the special facts stated

by the trial judge, and the transcript should not be

considered by this Court or put into the appeal books:

Thomas v The King (1937) 59 CLR 279 at 286, 299; R v Clarke

(1956) St. R. Qd. 93 at 98. This is consistent with

R86.16(4)(b). We must therefore confine ourselves to the

special facts. Lest it may be thought that this procedure

may give rise to injustice, the practice is for the trial

judge to settle the special facts and the question of law

with counsel for the accused and for the Crown, which we

were told was done in this case. However, where the trial

judge has given reasons for his ruling, as was done in this

case, there is no rule that precludes us from considering

those reasons, just as we may consider any other legal

materials helpful to the resolution of the question

reserved.

The Question of Law

Simply put, Mr Wild's submission was that self defence

could never be relied upon when the victim of the homicide

was asleep at the time of his death at the hands of the

accused. In order to understand this submission it is

necessary to examine the provisions of the Code.

Section 28(f) of the Code provides:

"In the circumstances following, the application of
force that will or is likely to kill or cause
grievous harm is justified provided it is not

unnecessary force:

(a) to (e) ...

(f) in the case of any person when

acting in self-defence or in the
defence of another, 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;

(g) ..."

Consequently, the elements of self-defence where the

application of force will kill or is likely to kill or

cause grievous harm which are relevant to this case are:

1.  the accused must be acting in defence of herself from

an assault by the deceased;

2.  the assault must have caused the accused reasonable

apprehension that death or grievous harm will result to

her;

3.  the force used to defend herself must not be

unnecessary force.

Mr Wild's contention was that as the deceased was

asleep at the time the accused shot the deceased, the
accused could not have been acting in defence of herself

from an assault by the deceased.

"Assault" is defined by s187 of the Code as follows:

"187. DEFINITION

In this Code "assault" means -

(a)	the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by
fear of bodily harm or by means of false and fraudulent representation as to the nature of the act or by personation; 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 harm movement or threatening words,

other than the application of force -

(c)	when rescuing or resuscitating a person or when giving any medical treatment or first aid reasonably needed by the person to whom
it is is given or when restraining a person who needs to be restrained for his own protection or benefit or when attempting to do any such act;
(d)	in the course of a sporting activity where the force used is not in contravention of the rules of the game; or
(e)	that is used for and is reasonably needed for the common intercourse of life."

Mr Wild submitted that to establish an assault in this

case there needed to be evidence of the following elements:

1.  a threatened application of force by the deceased to

the accused without her consent;

2.  the deceased, at the relevant time had an actual or

apparent present ability to effect his purpose;

3.  the purpose was evidenced at the relevant time by

bodily movement or threatening words.

Mr Wild submitted that as the deceased was asleep at

the time he was shot, there could be no evidence that he

then had an "actual or apparent present ability to effect

his purpose." In effect, Mr Wild submitted that there was

a temporal connection imported into s28(f), i.e. that at

the time the accused acted in self-defence, the assault was

in progress. The learned trial judge concluded:

"It is clear that the jury could have been
satisfied that the deceased was frightened that the
accused would use force on her after he woke up
from his sleep; and that at the time he made that
threat he had an actual then-present ability to
carry it out, his purpose being evidenced by his
words. The "nature of the assault being defended"
was the threat that the deceased would later use
force. However, it appears to me that s28(f)
contemplates matters being assessed at the time the
accused was "acting in self-defence"; that is, at
the time in which she engaged in the series of
actions culminating in her shooting the then
sleeping deceased. Section 28(f) speaks of the
"nature of the assault being defended"; the
language carries distinct overtones of the need for
imminent danger. At the time the accused shot the
deceased, since he was asleep, he had no ability of
any type to implement his earlier threat. That is
to say, he was not then assaulting the accused, in

any meaningful way, in terms of s187(b)."

Mr Ross Q.C. submitted that s28(f) does not put a time

limit on the act done in self-defence. He submitted that

there was evidence of both an assault in terms of s187(a)

as well as (b). As to whether the deceased had a "present"

ability, this was a jury matter. His submission was that
the evidence showed one long assault from the time the

accused left Yarralin with the deceased which continued

thereafter and which had not ceased at the time of the

accused's death. We were referred to s310(1) of the Code:

"In an indictment against a person for an assault
the accused person may be charged and proceeded
against notwithstanding that such assault is
alleged to be constituted by a number of assaults
provided they were committed on the same person in
the prosecution of a single purpose or at about the

same time."

In my opinion s28(f) does import a temporal connection

between the assault and the force used to defend the

assault. On the facts as stated, it was open to the jury,

at the very least, to find that the deceased's threat to

the accused, in the circumstances of this case, was an

assault; that the deceased threatened the application of

force to the accused without her consent and that he had,

at the time of making the threat, the apparent present

ability to carry out the threat. But here the threat was

in relation to the future application of force. In effect,

the inference open to be drawn from the words he uttered,

having regard to the appalling history of his escalating

violence upon the accused, was that when he awoke he

intended to kill her or cause her grievous harm. The

threat was, like all threats, of future violence, and

unquestionably just as there was evidence that the accused

had the apparent ability to carry out his threat at the

time he made it, so was the evidence sufficient to support

the conclusion that, at the time when the deceased awoke,

he would then have had the apparent ability to carry out

his threat. I consider that s187(b), when it refers to an

"apparent present ability" must be construed by reference

to the actual situation to which those words relate. If

the case is one of an attempted application of force, the
apparent present ability to effect the purpose is to be

evident at the time of the attempt; but if the case is one

of the threatened application of force, then it must be

evident from the facts known at the time the threat is made

that at the time when the threat is to be carried out the

person making the threat will then have an apparent ability

to carry out the threat. This follows from the words

"apparent present ability to effect his purpose." If one

asks the question, what was the deceased's purpose, and the

answer is to kill or cause grievous harm to the accused

when he awakes, it follows that if he would not have had

the apparent ability to have effected that purpose when he

awoke, the threat would be an empty one. It would be a

strange result if empty threats amounted to an assault.

The reference in the section to `present ability' means in

this context, 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 the purpose is to be put into effect.

On this view of the section, there was evidence which the

jury might have accepted that the deceased had assaulted

the accused immediately before he fell asleep.

However this does not necessarily mean that at the time

the accused shot the deceased, she was defending an assault

within the meaning of s28(f). Clearly if the assault had

been completed by the time the deceased fell asleep, the

accused could not have been defending that assault, but a

different one - an anticipated assault which she feared may

occur in the future. The first question is therefore

whether the assault postulated had been completed. 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. The Code

definition of `assault', by including the threatened

application of force by the use of words coupled with an

apparent present ability to effect the purpose (which may

be evidenced solely by the use of threatening words)

rationalised, if not reformed, the common law which

required, at least in the view of some, something more than

mere words and which would not, apparently, countenance

mere threats to inflict harm in the future: see for

example, Smith and Hogan, Criminal Law, Fourth Edition,

pp351-352; Assault and Words, Glanville Williams, [1957]

Crim.L.R.219. These limitations have been rightly

criticized by those authors, and the Code in my view

employs language which makes it clear that provided the

threat is one which the person making it would have the

apparent ability to carry out, it does not matter that the

threat is evidenced by mere words, and nor is there a

requirement for an apprehension of immediate personal

violence. Threats by their nature relate to future

conduct. The Code sensibly places no limitations upon how

immediate the threat of future violence must be. It is

interesting to observe that the common law has moved away

from the requirement of immediacy, favouring a more

flexible approach in the law relating to duress: see R v

Hudson [1971] 2 Q.B. 202, and in the law relating to self

defence: see Zecevic v Director of Public Prosecutions

(Victoria) (1987) 162 CLR 645. The lack of any specific

requirement for an apprehension of immediate personal

violence, so far as the Code definition of assault is

concerned, reinforces the view that an assault is a
continuing one so long as the threat remains and the

factors relevant to the apparent ability to carry out the

threat in the sense explained have not changed.

The alternative view is that the word "assault" in

s28(f) of the Code includes a threatened future assault.

However I do not think this argument is open for two

reasons: first, the definition of "assault" includes

future threats, and in my view it is preferable to confine

future threatened assaults to those threats which

constitute an assault as defined; secondly, to do otherwise

would appear to be impossible having regard to the

definition of assault in s187 of the Code.

I am fortified by the conclusions I have reached by the

important decision of the Supreme Court of Canada in

Lavallee v R [1990] 4 W.W.R. 1. That was a case where the

accused, a battered wife, had shot her common law spouse,

Rust, in the back of the head. Shortly before this

occurred there had been a boisterous party at their home.

After most of the guests departed, the accused and Rust had

an argument during the course of which Rust assaulted the

accused and threatened her with further violence once the

last of the guests had left. The accused shot Rust as he

was departing the room. The accused raised self defence

and was acquitted by a jury, but the verdict was overturned

by the Manitoba Court of Appeal. On further appeal, the

Supreme Court of Canada unanimously allowed the appeal and

restored the jury's verdict. The leading judgment of the

court was delivered by Wilson J, with whom the other

members of the court concurred. Of particular significance

to this case is the approach taken by the court in relation

to the question of the nature of the assault being defended

by the accused, in order to rely upon self defence. The

definition of assault as contained in the Criminal Code of
Canada has some similarities to s187 of the Code, in that

an assault includes an attempt, or threat, by an act or

gesture, to apply force to another person, if the person

has, or causes the other person to believe on reasonable

grounds that he has present ability to effect his purpose.

However, the Canadian provision did not specifically

include threats where the purpose was evidenced by

threatening words, and although one might have thought

threatening words amounted to an act, case law seemed to

hold to the contrary: R v Horncustle (1972) 19 C.R.N.S.

362; R v Cadden (1989) 70 C.R. (3d) 340. As to self

defence, the relevant provision of the Criminal Code of

Canada required evidence that the accused was repelling an

assault. Wilson J observed that the "assault precipitating

the appellant's allegedly defensive act was Rust's threat

to kill her when everyone had gone" (p20). The Court seems

to have accepted that the threat of future conduct could

amount to an assault. Furthermore, the Court was critical

of a decision of the Nova Scotia Court of Appeal in R v

Whynot (1983) 37 C.R. (3d) 198, (a battered wife case who

had shot her sleeping partner after he had threatened to

kill her son) and in particular, the following passage:

"I do not believe that the trial judge was
justified in placing s37 of the Code before the
jury any more than he would have been justified in
giving them s34. Under s34 the assault must have
been underway and unprovoked, and under s37 the
assault must be such that it is necessary to defend
the person assaulted by the use of force. No more
force may be used than necessary to prevent the
assault or the repetition of it. In my opinion, no
person has the right in anticipation of an assault
that may or may not happen, to apply force to
prevent the imaginary assault."

The Court in Whynot's case had characterized the threat

as not an assault at all, but the threat of an assault

which may or may not happen in the future.

The Court dealt with this contention, at pps25-26:

"Even accepting that a battered woman may be
uniquely sensitized to danger from her batterer, it
may yet be contended that the law ought to require
her to wait until the knife is uplifted, the gun
pointed or the fist clenched before her
apprehension is deemed reasonable. This would
allegedly reduce the risk that the woman is
mistaken in her fear, although the law does not
require her fear to be correct, only reasonable.
In response to this contention, I need only point
to the observation made by Huband J.A. that the
evidence showed that when the appellant and Rust
physically fought the appellant "invariably got the
worst of it". I do not think it is an unwarranted
generalization to say that due to their size,
strength, socialization and lack of training, women
are typically no match for men in hand-to-hand
combat. The requirement imposed in Whynot that a
battered woman 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": New Mexico v Gallegos, 719 P.2d
1268, at 1271, 104 N.M. 247 (C.A., 1986). I share
the view expressed by M.J. Willoughby in "Rendering
Each Woman Her Due: Can a Battered Woman Claim
Self-Defense When She Kills Her Sleeping Batterer"
(1989), 38 Kan. L. Rev. 169, at p184, that "society
gains nothing, except perhaps the additional risk
that the battered woman will herself be killed,
because she must wait until her abusive husband
instigates another battering episode before she can

justifiably act".

Implicit in this is acceptance of the view that a

serious threat of future injury to the accused may be able

to be characterized as an assault for the purposes of self

defence even though the threat is of future conduct, even

though the threat was constituted by mere words, and even

though the person making the threat has, since making it,
fallen asleep. The Court did not appear to be troubled by

those matters, but saw the real issue as lack of imminent

danger to the accused when she acted (see p20). The Court

observed that the relevant section of the Criminal Code

relating to self defence

"does not actually stipulate that the accused
apprehend imminent danger when he or she acts.
Case law has, however, read that requirement into
the defence.... The sense in which "imminent" is
used conjures up the imagine of `an uplifted knife'
or a pointed gun. The rationale for the imminence
rule seems obvious. The law of self-defence is
designed to ensure that the use of defensive force

is really necessary. It justifies the act because

the defender reasonably believed that he or she had

no alternative but to take the attacker's life."

(p20). (emphasis mine).

It is clear that the court ultimately decided that the

question of imminence was not important; what was important

was whether the accused reasonably believed that she had no

alternative but to kill:

"If, after hearing the evidence (including the
expert testimony), the jury is satisfied that the
accused had a reasonable apprehension of death or
grievous bodily harm and felt incapable of escape,
it must ask itself what the "reasonable person"
would do in such a situation. The situation of the
battered woman as described by Dr. Shane strikes me
as somewhat analogous to 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? I think the question the
jury must ask itself is whether, given the history,
circumstances and perceptions of the appellant, her
belief that she could not preserve herself from
being killed by Rust that night except by killing

him first was reasonable."

In the light of those observations and the approach the

common law has taken since Zecevic v Director of Public

Prosecutions, supra, there is no compelling reason why, in a case such as this, the "assault being defended" for the

purposes of s28(f) of the Code, ought not to be

characterized as a continuing assault constituted by the

threatening words uttered by the deceased immediately

before he fell asleep so that, in truth, it is that assault

which is being defended, not a possible assault in the

future which may or may not occur, as the Court in Whynot

characterized it. As Wilson J points out in Lavelle, at

p31, this does not mean that a battered wife who kills her

sleeping husband must inevitably be acquitted of murder.

Battered wives may well kill their husbands otherwise than

in self defence, for example, out of revenge. The focus is

not on the accused's status as a battered wife; it is on

the questions whether the force was not unnecessary force,

and whether the threats which constituted the assault,

having regard to the history of the relationship, were such

as to cause the accused reasonable apprehension that death

or grievous harm will be caused to her in the future if she

did not act in the way she did. Relevant to these

considerations would be whether there were other lesser

reasonable alternatives open, but I agree with the

observations of Wilson J at pps29-30 in Lavelle, that the

law of self defence does not require a person to retreat

from his or her home instead of acting in self-defence:

"A man's home may be his castle but it is also the
woman's home even if it seems more like a prison in

the circumstances."

The learned trial judge, in his written reasons for

refusing to leave self-defence to the jury, held that there

were two other reasons why he took that course. First, his

Honour held that it would be impossible for a reasonable

jury to hold on the evidence most favourable to the accused

that at the time she shot the deceased, she could
reasonably have apprehended that she would suffer death or

grievous harm when he awoke. Secondly, his Honour held

that the jury could not have found that the force used was

unnecessary force. Mr Wild Q.C. did not seek to support

either of these contentions, and they were not argued

before us. Suffice it to say that I take a different view

of the facts than did the learned trial judge. The

relevant test is whether there is evidence which, if

believed, might reasonably have led the jury to return a

verdict of not guilty on the ground of self-defence. On

the stated facts the accused believed that the deceased's

last words were the ultimate threat and that he was going

to kill her and her life was going to end very shortly.

Having regard to the history of escalating violence

perpetrated upon the accused by the deceased, I consider

that it was open to the jury to have a reasonable doubt

about whether or not this belief was reasonably held.

Having regard to the nature of the assault, the history of

escalating violence, the breach of the restraining order

which the deceased had committed, and the fact that the

accused was in her own home when the deceased assaulted

her, and when she shot the deceased, I consider it was open

to the jury to have had a reasonable doubt as to whether or

not the force used was unnecessary force.

I would therefore answer the question, "No".

There remains to be considered what other orders should

be made. Section 408(5) requires the Court to hear and

determine the question reserved as an appeal and in

consequence the court is empowered to quash any conviction

and order a retrial. In this case the accused, following

the trial judge's ruling, pleaded guilty to manslaughter,

which the Crown accepted in full discharge of the

indictment, and the jury returned a verdict accordingly.
The trial judge did not formally record a conviction, but

postponed judgment vide s408(2) of the Code. It is clear

that the plea was made solely as a result of the ruling.

This Court may dispose of the matter as if it were an

appeal against conviction: see R v Demicoli [1971] Qd R

358.

I regard the jury's verdict as a conviction even though

the trial judge did not formally record it. I would quash

the conviction and order a new trial.

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