This article explains a doctrinal problem in s248 of the Western Australian Criminal Code (the law of self-defence) and Mitchell JA’s analysis of that problem in Egitmen v Western Australia  WASCA 214 in order to make an argument about how the law of self-defence is (still) operating in the context where an accused has killed resisting intimate partner violence (IPV). In spite of the considerable social and legal attention this matter has received in the past three decades there is a persistent failure of justice: we are reluctant to recognise responses to IPV as lawful. Manslaughter convictions are reflections of an urge to sympathise but a failure to perceive the form of violence IPV is. The case of Liyanage v Western Australia  WASCA 112 demonstrates the compromise a manslaughter conviction can reflect in this context with particular clarity, not because the facts of the case are significantly different from other cases but because the doctrinal confusion in s248 has the effect of revealing what underpins the decision more clearly. Examining the decision in this case in light of Mitchell JA’s construction of a “reasonable response” in s248(4), shows how resistance to IPV is minimised and sidelined in a manslaughter conviction.
|Number of pages||25|
|Journal||The University of Western Australia Law Review|
|Publication status||Published - 1 Sep 2018|