Contents

Chapter 3
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.219 Individual cases can also have a disproportionate effect on the impression of overall trends.220

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.

Case outcomesTop

3.29Since 2001,221 at least 24 victims of family violence have been prosecuted for killing an abuser or suspected abuser.222 With one exception,223 the cases were summarised in the Issues Paper.224

Convictions

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 8225
Manslaughter (n=2) 1 - 1
TOTAL (n=16) 4 3 9

Sentences

3.31Among those convicted, sentences ranged from life imprisonment with 10-year minimum periods of imprisonment for murder226 to a suspended sentence of imprisonment in one of the manslaughter cases.227 Among the four murder convictions, in only the most recent two – R v Wihongi228 and R v Rihia229 – 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:

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.239 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.240 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.241

A complex range of circumstancesTop

3.35In R v Woods,242 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.243 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”.244 Terrible personal histories beyond the abusive relationship were also recounted in R v Fairburn,245 R v Wihongi,246 R v Hu,247 R v Stone,248 R v Brown,249 R v Woods250 and R v Rihia.251 As well as complex abuse histories, many defendants had mental health and alcohol problems, ranging from a lack of “normal coping mechanisms”,252 to depression,253 post-traumatic stress disorder,254 self-harming and borderline personality traits,255 genetic pre-disposition to alcoholism,256 and cognitive impairment.257 These cases bear out observations by the Family Violence Death Review Committee (FVDRC) on intergenerational family violence and “compounding trauma”.258
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]”.259
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,260 while in others, the courts record feelings of fear, anger or other distress – or combinations of a number of emotions.261 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:262

… 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.

219The limitations involved in analysing a case sample on the basis of public records, and where case outcomes are multi-factorial, was also noted by a leading New Zealand commentator who recently considered the effects of the abolition of partial defence of provocation on battered defendants: Julia Tolmie “Defending Battered Defendants on Homicide Charges in New Zealand: The Impact of Abolishing the Partial Defences to Murder” [2015] NZ L Rev 649 at n 4.
220A number of variables are also unknown. These include the grounds on which the Crown decided in any given case to lay or amend particular charges, the content of plea discussions, the reasons for guilty pleas, the reasons for verdicts and the primary evidence on which juries and judges reached verdicts and sentencing decisions.
221The year the Law Commission published its Report Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).
222We are aware of two further relevant cases that we have not addressed in this Report. In one, the defendant was found unfit to stand trial and so the prosecution was not seen through to completion (whether by a guilty plea or finding of guilt after trial). We understand the details of that case may also be subject to ongoing suppression. In the other, the defendant, Daryl Kirk, was charged with the murder of her mother’s partner. She claimed self-defence, but was found guilty of manslaughter shortly before the publication of this Report. She has yet to be sentenced. In these circumstances, we have excluded these two cases from our review.
223The 24th case, of which we became aware after the Issues Paper was published, is R v Tagatauli. In 2015, Ms Tagatauli (also known as Amanda Taitapanui) was charged with the murder of her partner, Mura Tagatauli, after she stabbed him in the leg, severing his femoral artery. The charge was, however, subsequently amended to manslaughter, to which she pleaded guilty. She was sentenced on 21 April 2016 to 12 months’ home detention. See “Fatal stabbing in the leg leads to rare sentence of home detention” (21 April 2016) Stuff.co.nz <www.stuff.co.nz>.
224Law Commission Victims of Family Violence Who Commit Homicide (NZLC IP39 2015) at 124–131.
225In R v Fairburn, the defendant was initially convicted of murder, but on appeal, the conviction was quashed and a new trial ordered: R v Fairburn HC New Plymouth CRI-2008-043-931, 3 March 2009 [Fairburn (HC)]; Fairburn v R [2010] NZCA 44 [Fairburn (CA)]; and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63. After the second trial, the defendant was convicted of manslaughter: R v Fairburn [2012] NZHC 28. For the purposes of this analysis, we treat this case as a manslaughter conviction.
226R v Reti HC Whangarei CRI-2007-027-2103, 9 December 2008 [Reti (HC)] and R v Reti [2009] NZCA 271; and R v Neale HC Auckland CRI-2007-004-3059, 12 June 2009 and Neale v R [2010] NZCA 167.
227R v Erstich, above n 199.
228R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010 [Wihongi (HC)]; R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 [Wihongi (CA)]; and R v Wihongi [2012] NZSC 12 [Wihongi (SC)].
229R v Rihia [2012] NZHC 2720.
230At the age of 14 Ms Wihongi was sexually abused by a drug and alcohol counsellor, and around the same time, she had been prostituted for drugs and money by the older brother of the deceased. The violence she suffered over the years included gang rape and a home invasion that saw her scarred from an assault with a bottle: Wihongi (HC), above n 228, at [19]–[20].
231At [19]–[22].
232Per Sentencing Act 2002, s 102.
233This was in part for reasons of community protection and Ms Wihongi’s future risk (about which the Court of Appeal had received fresh evidence) and in part to meet the sentencing purposes of denunciation and deterrence: Wihongi (CA), above n 228, at [98].
234Wihongi (CA), above n 228, at [94].
235Wihongi (SC), above n 228.
236R v Rihia, above n 229.
237At [25]–[33]. The 10-year term was calculated from a 12-year starting point (by reference to Wihongi), with a two-year discount to recognise Ms Rihia’s guilty plea.
238At [28].
239Of the four cases that went to trial for murder, two were convicted of manslaughter and the other two were acquitted.
240R v Gerbes. See “Hung jury in manslaughter trial” (13 February 2014) Stuff.co.nz <www.stuff.co.nz>; and Tracey Chatterton “Accused ‘just needed to call out’” (12 February 2014) Stuff.co.nz <www.stuff.co.nz>.
241At least in terms of conviction outcomes, this is consistent with Julia Tolmie’s conclusion that the repeal of provocation “has not shifted the fact that the majority of battered defendants are still convicted of manslaughter”: Tolmie, above n 219, at 663.
242R v Woods HC Gisborne CRI-2011-016-000048, 10 June 2011 at [27].
243Each of the cases to which Potter J was referred is included in our review: R v Brown HC Napier CRI-2008-020-3130, 24 November 2009; R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007; R v Stone HC Wellington CRI-2005-078-1802, 9 December 2005; and R v Tamati HC Tauranga CRI-2009-087-0868, 27 October 2009.
244Reti (HC), above n 226, at [5]–[6].
245Fairburn (HC), above n 225, at [10]. The Judge recorded that Ms Fairburn had “a long history as a victim of both sexual and physical abuse dating back to [her] childhood” and that the deceased was abusive towards her.
246Wihongi (HC), above n 228, at [19]–[26]. As noted above at [3.31(a)], Ms Wihongi was sexually abused at age 14 and prostituted for drugs and money by the deceased’s older brother from the age of 14 or 15. She had been gang raped and subjected to home invasion in the course of which she was injured and scarred. She had cognitive deficits from a drug overdose at age 13 and “residual, complex features of post-traumatic stress disorder, and anxiety and depression dating from the rapes and home invasion”: Wihongi (CA), above n 228, at [18]–[22].
247R v Hu [2012] NZHC 54 at [7]. Ms Hu’s pre-sentence and psychiatrist’s reports painted a “bleak picture of [her] life so far”, Ms Hu having “described sexual and physical abuse as a child and young woman” in China, drug use and chronic depressive disorder.
248R v Stone, above n 243, at [5]. Ms Stone described her upbringing as “been shocking and [she] recollect[ed] violence from [her] mother and apparently an alcoholic step-father. There were constant changes of school. On the one estimate 11 primary schools, in part suggested so that the abuse of [her] could not be detected.”
249R v Brown, above 243, at [12]. Ms Brown, the Court noted, had a “disturbed and disrupted upbringing”.
250R v Woods, above n 242, at [11]. Ms Woods grew up with “frequent domestic violence by her father against her mother”.
251R v Rihia, above n 229, at [18]–[28]. The sentencing Judge recorded Ms Rihia had a “longstanding history of violence”, and “[t]here was much violence and alcohol abuse in [her] past before [she] met Mr Rihia. [Her] parents were both alcoholics and it was [her] father’s violence towards [her] which required [her] removal as a child to the care of [her] grandparents.” Ms Rihia had “abused” alcohol since secondary school and her first marriage (not to the deceased) had also been violent. She had “significant mental impairment … through years of alcohol abuse and physical abuse most recently, until [she] parted with him, at the hands of Mr Rihia himself”.
252R v Erstich, above n 199.
253R v Hu, above n 247.
254Reti (HC), above n 226; Wihongi (HC), above n 228; and R v Rakete [2013] NZHC 1230.
255Fairburn (CA), above n 225.
256R v Stone, above n 243, at [6].
257Wihongi (HC), above n 228; and R v Rihia, above n 229.
258Family Violence Death Review Committee Fifth Report: January 2014 to December 2015 (Health Quality & Safety Commission, February 2016) at 51 and 55. The Committee records, at 55, findings from the Adverse Childhood Experiences study that “exposure to family violence during childhood heightens the risk of intergenerational violence, with girls more likely to become victims and boys more likely to perpetrate [intimate partner violence] as adults” (footnotes omitted).
259R v Wickham HC Auckland CRI-2009-090-010723, 20 December 2010 at 39 per Ellis J.
260See R v Wickham, above n 259; R v Mahari, above n 243; R v Tamati, above n 243; and R v Paton [2013] NZHC 21.
261R v Brown, above 243, at [5]; R v Woods, above n 242, at [7]; and R v Rihia, above n 229, at [14] and [21].
262Law Commission of England and Wales Partial Defences to Murder (Law Com No 290, August 2004) at 53. The same point has been made elsewhere. See for example Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 90; and Brenda M Baker “Provocation as a Defence for Abused Women Who Kill” (1998) 11 Can J L and Jurisprudence 193 at 196. Baker argues that “it is hard to credit the idea that women are always driven solely be fear or terror when they kill or risk such killing, although this is a dominant emotion in many homicides and one that is almost always operative to some degree and so almost always has some explanatory relevance”.