34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and

(b) he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.


The requirement of imminence has been read into (a); i.e., "...under reasonable apprehension of imminent death or grievous bodily harm..."


The problem: Lavallee shot Rust as he was walking out the door, so the assault was not imminent (and thus no violent response could have been proportionate).

As to (a):

"The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience."

As to (b):

1. The hostage analogy
2. No one has to leave her home instead of defending herself.

Back to [Overheads].