Contents

Chapter 2
Understanding family violence

Improving understanding of family violence

2.54A proper understanding of the dynamics of family violence in the criminal justice system, based on contemporary social science, is important to ensure that victims of family violence who commit homicide are treated equitably before the law. Put simply, if the judge or the jury does not understand the social context of the homicide and the realities of the defendant’s situation, the actions of the defendant cannot be accurately assessed.

2.55How family violence is understood will be relevant to:

2.56In this chapter, we have identified several ways in which traditional understandings of family violence have contributed to misconceptions. These include misconceptions that:

2.57A proper understanding of the nature of intimate partner violence as a pattern of behaviour with a cumulative effect and as a form of social entrapment, is necessary to counter these misunderstandings. As the FVDRC states:170

Attempting to reform the current system while we continue to think about family violence in exactly the same way will not produce the kinds of systemic changes we all want.

Improving understanding through education

2.58As we observe throughout this Report, our review of the cases in which victims of family violence killed their abusers strongly suggests the need for improved understanding of family violence. Discussion of prior abuse is largely focused on previous incidents of physical violence. Abusive relationships are often described as “volatile”,171 or defendants at times are described as just as violent. Sometimes the significance of tactics of coercion and control, beyond physical violence, appear to be missed or minimised.
2.59The Victorian Royal Commission into Family Violence recently observed, in relation to introducing new family violence-specific offences and sentencing provisions:172

Introducing new offences and sentencing provisions often has only a symbolic effect and does not result in changes in practice. Whatever laws we have will be only as effective as those who enforce, prosecute and apply them. Improving these practices—through education, training and embedding best practice and family violence expertise in the courts—is likely to be more effective than simply creating new offences.

2.60To ensure the recommendations made in this Report have more than symbolic effect they must be supported by improvements in the understanding of family violence within the criminal justice system. The importance of supporting legislative reform with measures to improve understanding has been emphasised in recent years by law reform bodies in other jurisdictions, particularly Australia. In their joint Report, the Australian and New South Wales Law Reform Commissions recommended legislative guidance and judicial and legal professional education and training focused on improving the application and effectiveness of existing legal defences in the family violence context.173 The Victorian Law Reform Commission made similar recommendations to promote a better understanding by judges, jurors and legal representatives of the circumstances of family violence and the range of ways people might react to it.174 The Law Reform Commission of Western Australia recommended including a section on the nature and dynamics of family violence in the judiciary’s “bench book” to assist judges confronted with social and cultural issues around family violence.175
2.61Reviews of reforms targeting the legal response to victims of family violence who kill abusers also emphasise the need for comprehensive, consistent and ongoing training within the criminal justice system.176 Without that training, the potential of statutory law reform may not be realised.177
2.62In New Zealand, the Institute of Judicial Studies (IJS) has been active in educating the judiciary on both the family violence context and how to spot tell-tale “red flags” of abuse.178 However, in specific cases, judges can be limited by the evidence put before them. It is therefore important that prosecutors and defence counsel are also alert to the circumstances in which family violence will be relevant to criminal offending.

2.63As we discuss in Chapter 7, expert evidence can educate jurors on the dynamics of family violence and dispel misconceptions, but this depends on defence counsel identifying the need for and significance of such evidence. It also depends on the availability of family violence experts and of funding for such expert evidence. Education of prosecutors is equally important to ensure consistency in the exercise of prosecutorial discretion.

2.64The role of Police in homicide trials is primarily investigatory, and the extent to which they identify relevant family violence evidence that may be material to the offending is crucial.

2.65In our view, the FVDRC’s Fifth Report makes a compelling case for changing how New Zealand understands family violence, and we recommend that education be available to all key participants in the criminal justice system. Such education should focus on the contemporary social science of family violence and the importance of identifying and dispelling misconceptions that have arisen previously and remain evident today.

2.66These recommendations are intended to support and promote a change in how we think about family violence. We hope this will remove barriers that result from persisting misconceptions and contribute to the achievement of substantive equality before the law for victims of family violence who commit homicide.

recommendations

169We note, as a particularly grave example, the Australian case of R v Kina [1993] QCA 480, discussed in Sheehy, Stubbs and Tolmie, above n 97, at 704–705 and Rebecca Bradfield “Is Near Enough Good Enough? Why Isn’t Self-defence Appropriate for the Battered Woman?” (1998) 5 PPL 71 at 72. Robyn Kina, an Aboriginal woman, stabbed her de facto partner and was convicted of murder after a trial lasting one day. On advice from her lawyer, she did not give evidence at trial, and her defence was that she had not intended to kill the deceased. It was not until five years later, after spending years speaking to a particular social worker, that her story emerged, one of extreme and sadistic violence at the hands of the deceased. Her conviction was quashed on the grounds that there had been a miscarriage of justice based on the “exceptional difficulties of communication between her legal representatives and the appellant”, and the prosecution exercised its discretion not to proceed with a retrial.
170Family Violence Death Review Committee, above n 60, at 13.
171For example R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005; R v Tamati HC Tauranga CRI-2009-087-0868, 27 October 2009; R v Wihongi, above n 167; and R v Woods HC Gisborne CRI-2011-016-000048, 10 June 2011.
172State of Victoria Royal Commission into Family Violence: Summary and recommendations (Parl Paper No 132, March 2016) at 27.
173Australian Law Reform Commission and New South Wales Law Reform Commission Family Violence — A National Legal Response (ALRC R114 and NSWLRC R128, October 2010) at 649–650.
174Victorian Law Reform Commission, above n 71, at 92.
175Law Reform Commission of Western Australia, above n 98, at 295.
176Tyson and others, above n 101, at 92; Mandy McKenzie, Debbie Kirkwood and Danielle Tyson “‘Unreasonable’ self-defence?” (2013) 2 DVRCV Advocate 12 at 16; and State of Victoria, above n 172, at 57.
177McKenzie, Kirkwood and Tyson, above n 176, at 15.
178As part of the Higher Courts Update Programme a full-day seminar was held on these two specific issues in 2015. Also in 2015, the three-day District Court Judges’ Triennial Conference was devoted to family and sexual violence, the first time in the history of the District Court Bench that the entire conference was devoted to a single subject. Judges received education from psychologists, community workers, academics and Police.