In October 1996 Heather Osland was convicted of murder for her part in the killing of her violent husband, Frank Osland. Heather was sentenced to 14 and a half years in prison. At the same trial the jury were unable to reach a verdict for Heather's son, David, who struck the blow which killed Frank Osland. At a retrial David was acquitted of all charges and released.

In April 1997 Heather appealed her conviction and sentence to the Victorian Supreme Court. The appeal was dismissed.

On Friday the 13th of February, 1998 leave to appeal to the High Court, sought by a new legal team, was granted and in April that year the appeal was heard before the High Court in Canberra.

A number of grounds of appeal were put before the court by Heather's legal representative, Dr Jocelynne Scutt. Perhaps the most significant was the issue of inconsistent verdicts; David, who struck the blow, ultimately being acquitted on the basis on self-defence while Heather was found guilty of murder.

Another ground of appeal related to the inadequate directions given by the trial judge in relation to self-defence and provocation in the context of the Battered Women Syndrome. The Battered Women Syndrome had created a number of problems in Heather's trial. There was a great deal of confusion about the Syndrome and its relevance to the defence was not made clear to the jury. The focus of attention became whether or not Heather fitted the specific criteria of the syndrome rather than how her actions were self-defence.

The grounds of appeal to the High Court looked at issues relating to the application of the laws of self-defence and provocation with respect to women who have been subjected to domestic violence. Issues relating to the application of hearsay rulings in trials of battered women; the misdirection of the jury by the trail judge on the issue of lies and the 'motive' of the accused as a witness and admissibility of taped intercept evidence at the trial were also raised.

Dr Scutt presented a clear picture of the abuse Heather suffered and the effect of that abuse on the family. In explaining to the Court the 'Battered Woman's reality', she compared Heather's life to being locked in a closet and to a hostage situation. Dr Scutt clearly indicated that this case was not asking for women in Heather's situation to be exempt from murder laws or for women generally to be given special treatment, rather that the laws of self defence and provocation be open to women's experiences as well as men's.

Heather Osland's High Court appeal was dismissed by the majority judgement (3:2). The two dissenting judgements, of Justices Gaudron and Gummow, stated that Heather Osland's conviction should be set aside and a retrial ordered on the grounds on inconsistent verdicts. Justices Gaudron and Gummow indicated that there may have been a miscarriage of justice in at least one other ground, however they did not go into detail as they had already ordered a retrial on the basis of inconsistent verdicts.

The majority judgement of Justices Kirby, McHugh and Callinan decided that the verdicts were not inconsistent and that there was no miscarriage of justice. They did not agree with Justices Gaudron and Gummow decision that Heather Osland should be given a retrial.

Consequently Heather Osland remains in prison to serve the remainder of her long sentence.

The High Court judgement claims that Heather Osland's actions do not fit into provocation or self defence because of the 'planning'. Justice McHugh claims that it was open to the jury to regard the evidence in a 'sinister light' and Justice Kirby says that Heather's 'plan' to kill her husband was 'coolly premeditated'. 'Concealing' the killing is also identified as a problem for Heather's defence. She is described as having engaged in a 'series of deceptions'. The 'planning' and 'concealing' are described in a manner that reverberates with myths about domestic violence and its impact on women's lives.

The High Court judgement overlooks that David, who it is accepted acted in self-defence, was also involved in the 'planning' and the 'concealing'. Therefore these elements do not preclude a defence of self-defence. 'Planning' which does not seem to be an issue for David, lends itself well to the stereotype of women as deceptive and cunning.

It is difficult to see how Heather's actions in the lead up to Frank Osland's death were in any way 'calm' or 'detached', as viewed by the judges. Heather was in an extreme state of fear and trauma. This was acknowledged by Justices Gaudron and Gummow as a 'heightened arousal or awareness of danger which may be experiences by battered women'.

My interpretation of the evidence given at the trial of Heather Osland and David is that when they went out to the country to pick up bed knuckles (as instructed by Frank Osland) they did not take with them the implements they later used to dig the hole. When they were unable to obtain the bed knuckles they panicked. In desperate fear of Frank Osland's response, they dug a hole. They were in terror waiting for Frank to come home that night, waiting to see what mood he would be in. That night Frank grabbed Heather violently, yelled and screamed at her and punched David in the face when he tried to intervene. According to the evidence David gave at the trial, Frank threatened to kill them both. After this episode of violence they decided that Heather should give Frank some tablets to 'quieten him down'. It was only then that Heather and David contemplated what to do, in a state of terror; they were trying to determine how to protect their lives. They had no idea what weapon to use or if they could or should do it, they were frantic.

Even if Heather and David's actions are seen to constitute a 'plan', planning should not rule out self-defence. A woman in a situation of ongoing abuse, who is in fear for her life, may need to take steps in order to survive and that is what self defence is about - survival.

Most women who kill violent partners after a long history of threatening abuse believe that they have no alternative. In order to survive they may kill the abuser while he is asleep or incapacitated. In such cases women take a number of steps to carry out and conceal the killing. In most cases the women have tried to seek help from the police who have not adequately responded. These women invariably plead guilty to manslaughter or are found guilty of manslaughter at trial. Consequently they receive relatively short prison sentences or non-custodial sentences, although they must live with a manslaughter conviction when many of them have killed justifiably - in self-defence. The difference in Heather Osland's case is that she was adamant that she acted in self-defence, she did not plead guilty to manslaughter.