The Battered Woman and South African Law
3. Introduction
3.2 Test for self-defence
reasonable in the circumstances as she believes them to be.520 Further, the accused’s belief in the need to use force is subjectively assessed while the reasonableness of the accused’s response and the amount of force used are objectively assessed on the facts as the accused believed them to be. The duty to retreat is a factor which is taken into account in establishing whether the use of force was reasonable. It is now necessary to consider these factors in detail.
The question, “was the force used reasonable in the circumstances as the accused supposed them to be,” is a question which is to be answered by the magistrates or jury.522
The authority for the proposition that the accused is to be judged on the facts as she believed them to be (subjective) is that of Gladstone Williams,523 repeatedly applied by the Court of Appeal 524 and by the Privy Council in Beckford.525 In Williams 526 it was held:
“In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury come to the conclusion that the accused believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved
522Ormerod supra (n 41) 329. For a discussion of the test utilized for self-defence in South African law see chapter 2 35-41 supra; for American law see chapter 4 at 179-180 infra (objective test), 181-185 infra (subjective standards).
523(1984) 78 Cr App R 276, CA. But see Albert v Lavin [1981] 1 All ER 628 (QB) where Judge Hodgson held: “But in my judgment counsel’s ingenious argument for the appellant fails at an earlier stage. It does not seem, to me that the element of unlawfulness can properly be regarded as part of the definitional elements of the offence. In defining a criminal offence the word ‘unlawful’ is surely tautologous and can add nothing to its essential ingredients” (at 639). It is necessary to take note of the remarks of Donaldson LJ who agrees with this judgment: “On the law as it stands at the present it is no defence to a charge of assault that the accused honestly but mistakenly believed that circumstances existed which would have justified his action as being undertaken in reasonable self- defence unless there are reasonable grounds for that belief. However, an ill-founded but completely honest and genuine belief removes all or much of the culpability involved in the offence. It therefore provides powerful mitigation and in an appropriate case would justify a court granting an absolute discharge”.
524Jackson [1985] RTR 257; Asbury [1986] Crim LR 258, CA; Fisher [1987] Crim LR 334, CA at 334- 335; Beckford v R [1988] AC 130, [1987] 3 All ER 425, P. The court in Williams supra (n 523) also refers to the Criminal Law Revision Committee 14th Report, Offences Against the Person (Cmnd 7844 (1980) in Pt IX, par 72 (a) which stipulates: “The Common Law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person…”. See also the comment of Hodgson J in Albert v Lavin supra (n 523) (at 634) where he noted that: “(t)he law must be prepared, so far as it can do so, to look into the mind of the defendant and give him the benefit of the facts as they appeared to him”.
525Beckford v R supra (n 524).
526Gladstone Williams supra (n 523).
their case. If, however, the accused’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected…Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it”.527
The court held that the statement represented the common law, as stated in Morgan 528 and Kimber.529 The reasonableness of the accused’s response and the amount of force used are to be assessed objectively on the facts as the accused believes them to be.530 The accused’s belief that what she was doing was reasonable may be evidence, but no more, that it was reasonable. In Palmer 531 Lord Morris held:
“If there has been an attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his
527Ibid at 415 (per Lord Lane).
528[1976] AC 182. In the headnote of this case the law was set out as follows: “Since the prohibited act in an assault on a woman was the use of personal violence against the woman without her consent, the mens rea of the offence was the intent to use violence against her without her consent. It followed that the prosecution had to prove such intent, and conversely, that it was a good defence for the accused to show that he had honestly believed that the victim had consented to his actions”.
529[1983] 3 All ER 316, CA. Lawton LJ commented on the remark made by Hodgson J in Albert v Lavin supra (n 523) as follows: “We have found difficulty in agreeing with his reasoning, even thought the judge seems to be accepting that belief in consent does entitle a defendant to an acquittal on a charge of assault. We cannot accept that the word ‘unlawful’ when used in a definition of an offence is to be regarded as ‘tautologous’. In our judgment the word ‘unlawful’ does import an essential element into the offence. If it were not there, social life would be unbearable, because every touching would amount to a battery unless there was an evidential basis for a defence” (at 320). The position of Williams supra (n 523) was further cemented by Beckford v R supra (n 524) and R v Oatridge [1992] 94 Cr App R 367 370: “It is convenient to pause at this point to summarize the material law on self-defence … In many cases of self-defence the following questions must be asked: (1) Was the accused under actual or threatened attack by the victim? (2) If yes, did the accused act to defend himself against this attack? (3) If yes, was his response commensurate with the degree of danger created by the attack? In answering this question allowance must of course be made for the fact that the accused has to act in the heat of the moment and cannot be expected to measure his response exactly to the danger… There are however, occasions where a further question must be asked: (1a) Even if the accused was not in fact under actual or threatened attack, did he nevertheless honestly believe that he was? … If this question is answered in the affirmative (or more correctly, the prosecution does not establish that it should be answered in the negative), then the third question must be modified, so as to read: (3a) Was the response commensurate with the degree of risk which the accused believed to be created by the attack under which he believed himself to be?”.
530Owino (1996) 2Cr App 128 (A) 132.
531[1971] 1 All ER 1077.
necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self-defence where the evidence makes it’s raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence”.532
3.3 Elements of self-defence