Agatha Christie and the later film-makers in her mould have mis-educated their audience. Most of us think that murder is a planned and intentional killing, often for money or passion.
We think of elaborate plots to kill and hide the evidence and we think of innocent victims.
This view of murder is misguided on two counts. The first is that the law’s definition is much wider than that. It also catches people who kill who do not intend to kill their victims. These are people who cause death while committing serious crimes (the gun goes off accidentally); who only intend to injure but end up killing (pub brawling); or who are reckless as to whether someone might die (slashing about with a sword, or driving through a police roadblock).
Most people convicted of murder do not intend to kill their victim.
On this level the Agatha Christie stereotype of murder can be quickly overcome. You can quickly re-educate, say, a Year 12 student so they understand that murder is not only about intentional killing, but also about reckless killing or death caused while only intending to injure. It is easy to expunge the stereotype because the law is in fact framed that way and there are easy examples to illustrate the justice of a murder conviction of, say, someone who kills a cop while running a roadblock.
But the second Agatha Christie stereotype is much harder to deal with. This stereotype is that all cases of pre-meditated killing with a worked-out plot are clear cases of murder and should be treated as such.
At present, that is the law. If you plot to kill someone, and you kill them, it is murder.
But a case argued before the High Court this week challenges that view. Heather Osland was found guilty of murder. She drugged her victim’s drink so her accomplice could strike a fatal blow when the victim feel asleep.
At first blush that seems like a clear case of murder.
Present law recognises only three defences to intentional killing: madness; self-defence and provocation.
We’ll leave madness out for now.
Present self-defence law allows you to kill someone if you are in imminent threat of your life or grievous injury and it was necessary to kill the person to remove the threat. There has to be a balance of weaponry. You cannot use a high-powered rifle against an assailant merely waving his fists. But if the response is in proportion, you get an acquittal. Present provocation law provides that if the victim provokes him to an extent that any ordinary person in that position would lose their self-control and you lose control and kill, it will be manslaughter not murder.
Both these defences require immediacy. In self-defence, the danger posed by the victim has to be imminent. With provocation, the victim’s actions or words have to provoke a loss of control and the killing has to be done while still out of the control, before any cooling off period.
These defences suit males, more than females. The provocation rule suits the male who loses control and lashes out. The self-defence rule fits situations of violent confrontation, in a pub or between gangs, for example. But note the maleness of the reasonable response rule. It may be reasonable to say that if a man comes at a man with his fists, the man cannot respond with a gun. That sort of balancing is a chap-vs-chap perspective. But from a woman’s point of view, the only time she is ever going to be a position to physically cope with a man’s attack is when she has a gross imbalance of weaponry in her favour — the very circumstance that the present law will defeat her claim for self-defence. In any other circumstance she will be overwhelmed, with dire consequences.
Take the imminent-danger rule. Present law requires that a person be in imminent danger of grievous bodily harm of death before the law allows a self-defence response. The novelists and film-directors are in their element. Treasure Island. Ruffian Isaac Hand, dagger in his teeth, climbs the ropes of a mast after young Jim Hawkins. Hawkins cannot escape. He cannot just walk away. Music in the background. De-dun, de-dun, de-dunnnnnnn! Hawkins, virtually paralysed with fear seizes a musket and lets fly with both barrels. Clear case of imminent danger. Sighs of relief all round. Young Hawkins goes free. There is not even a question about prosecution for murder.
This is so different from a woman trapped by a violent husband. Most of the trap is not physical. She is not backed into a corner when she faces death. Rather there are a series of attacks of varying severity. Most are not immediately life-threatening. But she never knows when any one of them might get out of hand and result in not mere bashing, but permanent injury or death. And she never knows which one it might be. And she never knows if she will be lucky enough to have a weapon, like a knife at hand, when he attacks. And she never knows even if she has a knife, whether she will get a chance to use it before he disarms her. She cannot walk away. He has threatened to chase her down and kill her if she does.
Her only defence, in these circumstances, is to plan her defence — the very thing the law will not permit her to do. The moment she plans, the law says the self-defence is not immediate and that the killing is pre-meditated, and therefore murder.
But what, morally, is the difference between planning to kill such as husband with that threat forever hovering and young Jim Hawkins killing Isaac Hand?
Ah, but you would have every wife killing her husband. No man would be safe in his bed. Nonsense. If our law is to be changed to give these women a defence against a murder charge, they would have to prove a long history of physical and mental abuse (such as Osland has suffered) before such a defence were available. Such a history is not fakeable.
Her defence is more like a tourist or journalist captured by terrorists. The guard is half-drunk with his pistol slung loose. The captive is in no imminent danger, but unless he acts there will be no escape and most likely he will be killed later. Surely it should not be murder to kill the guard and escape.
My guess is that the High Court judges will follow the old rules, despite their occasional ability, as in the Mabo case, to think laterally.
None the less, the law is the law until it is changed. The court rules on present law but the present law can be changed by the court of public opinion.