Contents

Chapter 6
Self-defence and family violence – is there a problem?

Introduction

6.1Self-defence is often claimed by victims of family violence who kill their abusers, but is not usually successful. Our review of cases since 2001 identified that self-defence was claimed in 10 out of 16 cases that went to trial, but only three defendants were successful and were acquitted.391 Six were convicted of manslaughter392 and one of murder.393 In all 10 cases where self-defence was claimed, the defendant was a woman who had killed an abusive male partner.
6.2Given the weight of academic literature and law reform activity on this topic, it has, as Julia Tolmie puts it, become “trite” to point out that defences to murder do not equitably accommodate the circumstances in which victims of family violence, typically women, tend to kill their abusers.394 This inequity is said to arise because the law of self-defence, which developed primarily in the context of male violence and male standards of reasonableness, fails to recognise the different ways in which women typically use defensive force. Moreover, because women are most likely to use defensive force in response to family violence, this bias is deepened by persistent misunderstandings about family violence and victims’ responses to it.
6.3In this chapter, we consider the role of gender in the development of self-defence and how misunderstandings around family violence can disadvantage victims who claim self-defence. We then examine the interrelated concepts of imminence, lack of alternatives and proportionality which the courts have developed to assess whether the use of defensive force was reasonable. We conclude that, while section 48 is, on its face, capable of accommodating the experience of victims of family violence who kill their abusers, these concepts can operate as a barrier to a claim of self-defence in those circumstances. The concern is that defensive action by a victim of family violence can be dismissed as not being an action of self-defence simply because it does not accord with perceptions of what self-defence “really” is.395 While evidence of battered woman syndrome has gone some way to addressing these issues, its use is now criticised for a number of reasons, discussed below, and is no substitute for substantive equality in terms of the law itself.
391The cases of Honor Stephens, Natalie Ford and Jessica Keefe. In relation to Honor Stephens, see Bridget Carter “Jury accepts battered-wife defence in murder trial” The New Zealand Herald (online ed, Auckland, 24 April 2002); Natalie Ford, see R v Ford HC Auckland CRI-2010-044-000132, 22 July 2011, and Edward Gay “Ford found not guilty of murder” The New Zealand Herald (online ed, Auckland, 11 August 2011); and Jessica Keefe, see “Jessica Keefe not guilty of murder” (19 September 2013) Stuff.co.nz <www.stuff.co.nz>, and “Murder charge unwarranted – lawyer” (21 September 2013) Radio New Zealand <www.radionz.co.nz>. We identified one further case in which the defendant, Juliette Gerbes, was acquitted of manslaughter after stabbing her partner. However on the basis of the information available it appears the defendant’s claim was that, while she picked up a knife to scare or stop the deceased during an argument, the deceased grabbed her and pulled the blade into himself. Therefore it was not claimed that the stabbing was an act of self-defence. See “Hung jury in manslaughter trial” (13 February 2014) Stuff.co.nz <www.stuff.co.nz>.
392R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63; R v Wickham HC Auckland CRI-2009-090-010723, 20 December 2010 at 39; R v Rakete [2013] NZHC 1230; R v Paton [2009] NZCA 155; and R v Wharerau [2014] NZHC 1857. In Fairburn, the claim of self-defence was withheld from the jury. That case is discussed further in the following chapter. We also note the case of Daryl Kirk, before the High Court at the time of publication of this Report. Ms Kirk was charged with the murder of her mother’s partner, and claimed self-defence. On 20 April 2016 the jury returned a verdict of manslaughter. Ms Kirk has yet to be sentenced.
393Neale v R [2010] NZCA 167.
394Julia Tolmie “Battered Defendants and the Criminal Defences to Murder – Lessons from Overseas” (2002) 10 Wai L Rev 91 at 91. See Chapter 4 for a summary of recent law reform activity on this issue. Examples from the literature include Susie Kim “Looking at the Invisible: When Battered Women are Acquitted by Successfully Raising Self-Defence” (University of New South Wales, 13–04 UNSWLJ Student Series, 2013); Mandy McKenzie, Debbie Kirkwood and Danielle Tyson “‘Unreasonable’ self-defence?” (2013) 2 DVRCV Advocate 12; Thomas Crofts and Danielle Tyson “Homicide Law Reform in Australia: Improving Access to Defences for Women Who Kill their Abusers” (2013) 39 Mon LR 864; Kellie Toole “Self-Defence and the Reasonable Woman: Equality before the New Victorian Law” (2012) 36 MULR 250; Heather Douglas “A consideration of the merits of specialised homicide offences and defences for battered women” (2012) 45 Australian and New Zealand Journal of Criminology 367; Anthony Hopkins and Patricia Easteal “Walking in Her Shoes: Battered women who kill in Victoria, Western Australia and Queensland” (2010) 35 Alt LJ 132; Oliver Quick and Celia Wells “Getting tough with defences” [2006] Crim LR 514; Elisabeth McDonald “Defending Abused Women: Beginning A Critique of New Zealand Criminal Law” (1997) 27 VUWLR 673; Rebecca Bradfield “Is Near Enough Good Enough? Why Isn’t Self-defence Appropriate for the Battered Woman?” (1998) 5 PPL 71; Stanley Yeo “Resolving Gender Bias in Criminal Defences” (1993) 19 Mon LR 104; and Stella Tarrant “Something is Pushing Them to the Side of Their Own Lives: A Feminist Critique of Law and Laws” (1990) 20 UWAL Rev 573.
395Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 77.