Is Imminence Still Necessary? Current Approaches to Imminence in the Laws Governing Self-Defence in Australia

(2011) 13 Flinders Law Journal 79-124.

46 Pages Posted: 29 Jun 2015

See all articles by Marilyn McMahon

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School

Date Written: January 1, 2011

Abstract

Imminence, usually understood to require a close temporal connection between an actual harm or threat of harm and a defensive response, has traditionally served as a key consideration in self-defence. Previously functioning as a rule of law, in more recent times imminence has served as an evidentiary matter going to the reasonableness and necessity of an accused’s conduct. However, during the past two decades imminence has proven problematic in cases involving victims of chronic family violence who killed their abusers in non-confrontational circumstances and sought to plead self-defence. A number of jurisdictions in Australia responded to this by developing distinctive approaches to imminence. Five key approaches are discernible, with the most radical reform (in Queensland) seemingly substituting a history of domestic violence for a requirement of imminence. Other jurisdictions, including Victoria and Western Australia, have considerably relaxed imminence considerations. It now appears that while imminence previously may have operated as an independent temporal measure, its function as a proxy for necessity is now clear – at least in cases involving victims of family violence who kill their abusers.

The absence of effective State protection for some of these individuals may justify an exception to the general rule that only the State can use force to protect in non-imminent circumstances. Consequently, for victims of family violence who kill their abusers, necessity rather than imminence may be the key consideration.

Keywords: Imminence, self defence, necessity

Suggested Citation

McMahon, Marilyn, Is Imminence Still Necessary? Current Approaches to Imminence in the Laws Governing Self-Defence in Australia (January 1, 2011). (2011) 13 Flinders Law Journal 79-124., Available at SSRN: https://ssrn.com/abstract=2623898

Marilyn McMahon (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125
Australia
61392446184 (Phone)

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