The legal context
Summary of our case review
3.25In Chapter 9, we review how the criminal justice system has responded, on a case-by-case basis, to victims of family violence who have killed their abusers. We focus on cases in which the homicide was not accepted by the court or the jury to have been committed in self-defence.
3.26In the remaining part of this chapter, we highlight some aspects of this case review, which includes acquittals, convictions for manslaughter and convictions for murder. Although we consider the cases in detail later, we summarise key features here because they provide important background to why our package of recommended reforms is focused on education about family violence, self-defence and sentencing.
A note on methodology
3.27Although our case review captured a 15-year period, we have identified only 24 cases. This makes it difficult to draw definitive conclusions about the existence or extent of issues or problems in practice. Individual cases can also have a disproportionate effect on the impression of overall trends.
3.28Our review has, however, not been an attempt to scientifically discern trends. We have largely relied on reported court decisions and, in some cases, media reports. We have identified cases through news databases for reports on trial outcomes and legal databases for sentencing notes, trial rulings and appeal decisions. Given this project’s time constraints, we have not done a full audit of all relevant homicides, nor have we reviewed Crown prosecutor or defence files, or spoken with the defendants, counsel or judges involved in all cases. We therefore cannot be certain we have identified all relevant cases. We may have missed unreported decisions and homicides for which no charges were laid.
3.29Since 2001, at least 24 victims of family violence have been prosecuted for killing an abuser or suspected abuser. With one exception, the cases were summarised in the Issues Paper.
3.30As set out in the table below, across the cases we have reviewed, four defendants were acquitted and 20 were convicted of murder or manslaughter. Three of the four defendants who were acquitted relied on self-defence.
|Disposal of charges |
|Original charge ||Guilty plea to murder ||Guilty plea to manslaughter ||Charges defended at trial |
|Murder (n=19) ||1 ||4 ||14 |
|Manslaughter (n=5) ||- ||3 ||2 |
|TOTAL (n=24) ||1 ||7 ||16 |
|TRIAL RESULTS |
|Original charge ||Acquittal ||Convicted of murder ||Convicted of manslaughter |
|Murder (n=14) ||3 ||3 ||8 |
|Manslaughter (n=2) ||1 ||- ||1 |
|TOTAL (n=16) ||4 ||3 ||9 |
3.31Among those convicted, sentences ranged from life imprisonment with 10-year minimum periods of imprisonment for murder to a suspended sentence of imprisonment in one of the manslaughter cases. Among the four murder convictions, in only the most recent two – R v Wihongi and R v Rihia – was the presumption of life imprisonment displaced. For this reason, those cases are particularly significant, and while they are discussed throughout this Report, it is convenient to note their facts and disposition here:
- Wihongi: after a trial, Ms Wihongi was convicted of the murder of a man with whom she had been in a relationship. For years before the homicide, she had suffered physical and sexual violence from the deceased and others. She was also cognitively impaired after an overdose at age 13, and her ability to make judgements and reason and plan was in the low to borderline range. She displayed “residual, complex features of post-traumatic stress disorder, and anxiety and depression dating from the rapes and home invasion”. Initially, she was sentenced to a finite term of eight years’ imprisonment, the trial Judge having found it would be manifestly unjust to impose life imprisonment. On appeal by the Solicitor-General and in receipt of fresh evidence about Ms Wihongi’s future risk of violent reoffending, the Court of Appeal concluded a longer finite term of 12 years’ imprisonment was required. Having considered the legislative history of section 102 of the Sentencing Act and Ms Wihongi’s status as a “battered defendant”, however, the Court of Appeal did not depart from the High Court Judge’s assessment that life imprisonment would be manifestly unjust. Ms Wihongi was declined leave to appeal to the Supreme Court.
- Rihia: some 11 months after the Court of Appeal’s decision in Wihongi, Ms Rihia was sentenced for the murder of her estranged husband, having pleaded guilty to that charge. As in Wihongi, and with reference to “the similarities” of that case, the High Court Judge found it would be manifestly unjust to impose a life sentence and that the appropriate response was a finite term of 10 years’ imprisonment. Among other matters, the Judge was satisfied that Ms Rihia “would not have stabbed Mr Rihia to death had it not been for the significant mental impairment [she] suffer[ed] through years of alcohol abuse and physical abuse most recently, until [she] parted with him, at the hands of Mr Rihia himself”. There was no appeal against sentence.
The partial defence of provocation
3.32The outcomes of the cases we have reviewed can be further broken down into offending committed before and after repeal of the partial defence of provocation in December 2009. In 14 of the 24 cases, the offending took place pre-repeal and so provocation was available. In the remaining 10 cases, the offending post-dated repeal. Provocation may, of course, have been unavailable on the facts of any given case.
3.33Among the 14 cases in the pre-repeal group, 10 defendants were tried for murder, and provocation was relied on by five. In three of the five cases, the defendants were convicted of manslaughter, and in the other two, the verdicts were murder. Defendants in the pre-repeal group pleaded guilty to manslaughter in four cases, but the original charge was murder in only one of those cases. In none of the pre-repeal cases was a defendant tried for manslaughter.
3.34Among the 10 post-repeal cases, four defendants were tried for murder, but none was convicted of murder. The only murder conviction, R v Rihia, resulted from a guilty plea. Two defendants were charged with and tried for manslaughter, and another three pleaded guilty to manslaughter. In one of the cases that went to trial for manslaughter, the defendant was ultimately acquitted. In Chapters 9 and 11, we consider whether repeal of provocation has made a difference to case outcomes for victims of family violence who commit homicide but, as we note at the end of this chapter, there is no clear empirical basis to conclude it has.
A complex range of circumstancesTop
3.35In R v Woods, one of the cases we reviewed that involved an initial charge of murder, that was resolved by a guilty plea to manslaughter, the sentencing Judge, Potter J, remarked upon the “striking similarity” of a number of previous manslaughter cases that counsel had cited to the Court for Ms Woods’ sentencing. In each case:
… the offender is female, had been in a volatile relationship with the deceased, had been involved in a domestic dispute immediately preceding the stabbing, was under the influence of alcohol, had been the subject of abuse from the deceased immediately prior to the stabbing (except perhaps in the case of Brown), and had used a kitchen knife to stab the deceased with death being an unintended result. In all these cases the women involved had difficult childhoods, had children, and in most cases had only minor previous convictions.
3.36There are, as Potter J observed, common features among the cases we have reviewed. Most defendants were female, and had killed their abusive male partners. Most of the fatal weapons were kitchen knives or other readily available instruments. Most of the homicides occurred in the context of a confrontation, and most of the deceased abusers had recently been violent towards the defendant or intimated they would be.
3.37A number of defendants endured years of violence and abuse before the homicides, often from other people as well as the deceased. In R v Reti, for example, the Court acknowledged the defendant’s “difficult and miserable life” and “appalling history of childhood physical and sexual abuse”. Terrible personal histories beyond the abusive relationship were also recounted in R v Fairburn, R v Wihongi, R v Hu, R v Stone, R v Brown, R v Woods and R v Rihia. As well as complex abuse histories, many defendants had mental health and alcohol problems, ranging from a lack of “normal coping mechanisms”, to depression, post-traumatic stress disorder, self-harming and borderline personality traits, genetic pre-disposition to alcoholism, and cognitive impairment. These cases bear out observations by the Family Violence Death Review Committee (FVDRC) on intergenerational family violence and “compounding trauma”.
3.38Not all cases, however, mention the presence of significant trauma outside the abusive relationship that resulted in the homicide. The defendant in R v Wickham, for example, suffered from multiple sclerosis and had a violent and controlling husband, but the Court did not record other sources of abuse, and Ms Wickham was acknowledged to have a “widespread network of people who care[d] greatly for [her]”.
3.39The emotions or psychological states of the defendants at the time of the homicides seem also to vary (as far as we can tell from the record). In some cases, the evidence suggests the defendant was acting primarily defensively, while in others, the courts record feelings of fear, anger or other distress – or combinations of a number of emotions. In all cases we reviewed, however, the defendant’s lethal force was in some way a response to or explained by abuse the defendant had suffered at the hands of the deceased.
3.40It may be problematic to attempt bright-line distinctions between defensive and non-defensive reactions in cases of this kind. In a submission to the Law Commission of England and Wales on reformulation of the partial defence of provocation to accommodate both provoked and fear-based reactions, the Royal College of Psychiatrists cautioned against the assumption that “the two emotions of anger and fear are distinct”, when:
… in medical reality they are not. Physiologically anger and fear are virtually identical, whilst many mental states that accompany killing also incorporate psychologically both anger and fear. Hence, the abused woman who kills in response even to an immediate severe threat will also be driven at least partly by anger … Again, the woman who waits until the man is ‘helpless’ to kill him, is likely not merely to be angry but also fearful that eventually he will kill her, and/or her children … Any legal solution to the current perceived problems with partial defences to murder which rested upon the assumption that fear and anger can (even usually) be reliably distinguished must, from a medical perspective, therefore fail.
3.41The caution sounded by the Royal College of Psychiatrists in connection with the physiology and psychology of homicidal reactions to abuse may be relevant more generally. The cases we have reviewed often share important elements, but no two are the same. The nature and effects of the defendants’ histories as victims of family violence and the impact of often-entwined factors, like mental health and alcohol or drug issues, differ. So, too, do defendants’ risk profiles and rehabilitative needs and prospects. The circumstances in which victims of family violence come to kill abusers and the circumstances in which they progress through the criminal justice system are not amenable to a straightforward or one-size-fits-all analysis.