Contents

Chapter 1
Scope, context and approach

Our approach

1.18In this Report, we focus our consideration on:

1.19Part 3 considers in detail the interrelated issues of partial defences to murder and sentencing reform, both of which can be utilised to recognise the reduced culpability victims of family violence.

1.20We rely on the data collected and reported by the FVDRC to supplement our own analysis of reported cases. The FVDRC is a statutory “mortality review committee” established by the Health Quality & Safety Commission.55 It was established to review and report on family violence deaths in New Zealand.

1.21We have also drawn extensively on law reform work in other jurisdictions, particularly the Australian states of Victoria, Western Australia, New South Wales, Queensland and Tasmania, as well as England and Wales, Canada and Ireland.

Guiding principles

1.22We explained in the Issues Paper that we have framed our examination of the problems in this area of the law, and our analysis of the options for reform, by using the following guiding principles:56

1.23These principles represent the underlying objectives of our recommendations for reform and are consistent with New Zealand’s international obligations and the New Zealand Bill of Rights Act 1990.

ConsultationTop

1.24The Commission convened an expert panel to advise it on this reference. The panel was made up of academics, Crown and defence counsel, current and retired judges, victim advocates and Police.

1.25Our Issues Paper was published in November 2015,59 with submissions open until late December 2015. Due to the relatively condensed timeframe for submissions, we accepted late submissions where requested.

1.26We also held consultation meetings with key stakeholders, including (but not limited to) victim support organisations, the Ministry for Women, the FVDRC, Crown solicitors, the New Zealand Law Society, the Criminal Bar Association, the Public Defence Service, legal academics and experts in family violence.

Structure of this ReportTop

1.27This Report is divided into three parts.

1.28Part 1 (Chapters 1 to 4) sets the scene of this review. Chapter 1 sets out the scope of the review and our approach to it, and Chapter 2 provides an overview of the present state of knowledge of the dynamics of family violence and how this has evolved over time. In that chapter, we draw on the FVDRC’s Fifth Report, which calls for a shift in how we think about intimate partner violence and victims’ responses. Chapter 3 explains the law of homicide and the criminal trial process and makes some observations as to how the law currently responds to victims of family violence who kill their abusers. Chapter 4 sets out the law reform context to this Report, which includes the history of reform in this area in New Zealand and in other comparable jurisdictions.

1.29Part 2 (Chapters 5 to 7) focuses on the law of self-defence. These chapters set out the current law and explore the problems that arise in applying the law to victims of family violence, before going on to analyse the options for reform.

1.30Part 3 (Chapters 8 to 11) considers how the criminal justice system takes into account the reduced culpability of defendants who kill their abusers in response to family violence, other than in self-defence. Chapter 8 introduces the topic and sets out the options for addressing reduced culpability. Chapter 9 makes a number of observations around how the reduced culpability of a victim of family violence is currently taken into account. Chapter 10 considers and concludes on the question of whether a partial defence is justified, and Chapter 11 goes on to explore the options for sentencing reform.

55Under s 59E of the New Zealand Public Health and Disability Act 2000.
56Law Commission Victims of Family Violence Who Commit Homicide (NZLC IP39, 2015) [Issues Paper] at [1.28].
57United Nations Women’s Rights are Human Rights HR/PUB/14/2 (2014) at 30.
58A similar approach was also adopted by the Law Reform Commissions in Victoria and Western Australia. See Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 14–15; Jenny Morgan Who Kills Whom and Why: Looking Beyond Legal Categories (Victorian Law Reform Commission, Melbourne, 2002) at 1–2; and Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report (Project 97, September 2007) at 9.
59Issues Paper, above n 56.