Contents

Chapter 7
Proposals to reform self-defence

Proposals for procedural reform

7.58If the requirement for imminence is removed from self-defence, we consider the defence is, in substance, capable of accommodating the experiences of victims of family violence, typically women, who kill their abusers. However, problems will remain in the application of the law if the jury does not adequately understand the general dynamics of family violence and the defendant’s experiences specifically.619 As the Australian and New South Wales Law Reform Commissions noted in 2010, “a focus on the doctrinal content of defences is insufficient to ensure that the experiences of family violence victims who kill are accommodated in practice”.620

7.59In Chapter 2, we explained that misunderstandings and misconceptions of family violence persist today and recommended further education on the dynamics of family violence for those working within the criminal justice system. In this section, we consider proposals to ensure that a jury, considering a claim of self-defence by a victim of family violence, understands the full circumstances of the defendant’s actions, including the dynamics of their relationship with the deceased, the history of violence in that relationship and its effects on the defendant.

Relevance of family violence evidence

7.60In a criminal trial, the context and circumstances of the alleged offending are presented to the jury through evidence introduced by the prosecution and the defence. This includes evidence of facts and, in some cases, expert opinion evidence. In self-defence claims, evidence will assist the jury to assess the nature of the threat faced, the defendant’s state of mind and whether his or her actions were reasonable in the circumstances.

7.61Where a victim of family violence claims self-defence, evidence of prior family violence will be critical to the jury’s understanding of the circumstances. The VLRC explained the relevance of this evidence to the elements of self-defence as follows:621

For jurors, the application of force or use of a weapon by those who are subjected to abuse, particularly in non-confrontational circumstances, may raise issues about the reasonableness of the accused’s belief in the need to use fatal force. Jurors may believe there were other options available to the accused to escape the violence, or that the use of a weapon was out of proportion to the nature of the threat. Jurors may also have questions about the honesty of the accused’s belief in the need to use force to defend himself or herself because of the apparently planned nature of her actions. The broader context of prior violence will often be critical to the jury’s evaluation of whether the accused acted in self-defence.

7.62Even where evidence of prior family violence is admitted, however, persisting myths and misunderstandings may mean that the significance of prior family violence may be missed or that jurors, relying on their own limited knowledge, may make unjustified behaviour assumptions or rely on illegitimate reasoning when assessing that evidence. For this reason, many acknowledge the importance of evidence on the general dynamics of family violence given by experts on this topic. As some commentators note:622

Juries will commonly need assistance, for example, in understanding why leaving may not resolve domestic abuse, why failed attempts to get help might make future help-seeking by the victim more difficult or dangerous, why there may be few independent witnesses to corroborate the accused’s account, why the accused may have made allegations of violence in the past and recanted, and why her story may take some time to fully emerge. In fact it may only emerge as a truthful and complete account after considerable time has passed and perhaps even then only within a relationship of trust. Expert testimony will be particularly significant in understanding past retaliatory violence by the accused.

Admissibility of family violence evidence in New ZealandTop

7.63Evidence of fact is generally admissible under the Evidence Act 2006 where it is relevant to a fact in issue.623 Expert opinion evidence is admissible if the fact-finder “is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”.624
7.64An expert is someone “who has specialised knowledge or skill based on training, study, or experience”.625 The judge must determine whether the expert witness is properly qualified to testify. Parties may also agree on a statement of expert opinion rather than calling witnesses to give evidence.
7.65Evidence of battered woman syndrome has been accepted in New Zealand courts to “disabuse jurors of misconceptions they may have about the nature of domestic violence and its effect on women exposed to it”.626 Battered woman syndrome evidence is regarded as “syndrome evidence”, usually given by qualified forensic psychologists and forensic psychiatrists.627

Is there a need for a family violence evidence provision?Top

7.66Cases involving victims of family violence who kill their abusers are rare, and we have not identified any legal difficulties with admitting evidence of prior family violence to support claims of self-defence under the Evidence Act. However, in the previous chapter, we identified the broader concern that the focus on the immediate circumstances of the alleged offending, consistent with the stereotypical self-defence scenario of a one-off violent confrontation with a stranger, may mean juries are less likely to hear evidence of prior family violence (as it is not seen as relevant to the claim of self-defence). Furthermore, where such evidence is introduced, it may be for the limited purpose of understanding the circumstances of the immediate event and may not be sufficient to enable a jury to gain a proper understanding of all the circumstances of the killing.628
7.67We also discussed in the previous chapter the problems with battered woman syndrome, in particular, that it promotes a rigid, limited view of women’s experiences and behaviour that overemphasises their psychological reactions. In light of these problems, commentators and law reform bodies have recommended redefining the scope of expert evidence on family violence to place a greater emphasis on the broader social context of a defendant’s situation and to reflect the current state of knowledge about the nature and dynamics of family violence and its effects.629 It is argued that expert evidence on family violence in self-defence claims can perform a wide range of useful functions, including:630
7.68We also note that funding constraints and availability of suitably qualified experts may impact detrimentally on the use of expert evidence in these cases. Most homicide defendants rely on legal aid funding. Under the legal aid framework, lawyers must apply for prior approval of funding for an expert witness. Approval will only be granted if the lawyer can demonstrate why the expert’s attendance is required, how it will contribute to a successful outcome for their client and confirm that any potentially less expensive sources of evidence have been considered.632 We also understand that there is a small pool of expertise on family violence in New Zealand, with perhaps as few as six or eight people properly qualified as experts in this field.
7.69Finally, we note the observations of the Hon Justice Stevens of the Court of Appeal in 2015 about inconsistent reliance on expert evidence generally (albeit by prosecutors, not defence counsel) across New Zealand:633

The practice of Crown solicitors and prosecutors, in determining whether to seek to adduce such evidence, is not uniform across New Zealand. This is a matter of discretion for individual prosecutors and regional variations have emerged. My enquiries suggest in some regions, such as Rotorua, it is considered that juries are well-equipped to deal with complex family dynamics and the concomitant issues that arise in these sexual assault cases. In Tauranga, however … counter-intuitive evidence is seen by the Crown as serving a useful educative function.

Family violence evidence provisions in AustraliaTop

7.70In its Report Defences to Homicide, the VLRC concluded:634

A broader understanding by jurors of what it must be like for a victim of abuse to live in a situation of ongoing and serious violence is crucial to the further development of self-defence. Without a proper appreciation of the circumstances of the accused, including the nature of the threat he or she faced, and other personal circumstances, juries are unlikely to be able to make an informed assessment of whether the accused acted in self-defence.

7.71While the VLRC recognised family violence evidence was generally accepted by the courts, it recommended providing specific guidance in legislation:635

… the importance of this evidence in supporting a plea of self-defence has persuaded us that its status should be clarified in legislation. This will avoid any unnecessary arguments concerning its relevance and ensure the range of factors which may be necessary to represent the reality of the accused’s situation are readily identified.

7.72The Crimes Act 1958 (Vic) was subsequently amended to include a provision that, in circumstances where self-defence in the context of family violence is in issue, “evidence of family violence” may be relevant to determine whether the defendant carried out conduct while believing it to be necessary in self-defence, or whether their conduct was a reasonable response in the circumstances as the defendant believed them to be.636

7.73The legislation includes an extensive definition of what is meant by “evidence of family violence”, which provides:637

Evidence of family violence, in relation to a person, includes evidence of any of the following—

(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.

7.74Subsections (a) to (c) relate to evidence of prior family violence. Subsections (d) to (f) recognise the relevance of expert social context evidence. The VLRC endorsed the view that the people best qualified to give expert evidence on family violence are likely to include those with direct experience of working with victims of family violence and with knowledge of current research in the field.638
7.75An independent review of the operation of the Victorian provisions in 2015 identified an increased awareness by legal professionals of the relevance of family violence in homicide cases and noted that the provisions made it more likely that family violence will be considered and linked to the defendant’s actions and the available defences.639
7.76The Victorian provisions were endorsed by the Australian and New South Wales Law Reform Commissions in 2010, recommending that the criminal legislation in each state and territory of Australia provide guidance about the potential relevance of family violence-related evidence in the context of a defence to homicide, “given its importance in these circumstances”.640 The Law Reform Commission of Western Australia, the New South Wales Select Committee on Provocation and the Tasmania Law Reform Institute also endorse specific family violence evidence provisions, often citing the important educative function it would serve for the legal profession and the broader community.641 In 2010 Queensland introduced a provision to clarify that evidence of the history of the domestic relationship between the defendant and the person against whom the offence is committed is admissible in relation to certain offences.642

Submitters’ views on introducing family violence evidenceTop

7.77In the Issues Paper, we asked submitters whether they considered there was a problem with admitting family violence evidence under the Evidence Act 2006 and whether a specific evidence provision similar to the Victorian provision should be introduced in New Zealand.

7.78Submitters generally agreed that evidence of prior family violence should be admissible in cases involving claims of self-defence. However, they did not identify any particular problems with the current operation of the Evidence Act. The Law Society considered there may be problems around the “relevance” requirement in section 7, but the current rules were generally flexible enough to deal effectively with family violence evidence. One academic noted, however, that the test of “substantial helpfulness” for expert evidence is a high threshold.

7.79Around half of submitters were in favour of introducing a family violence evidence provision. Some emphasised the need to move on from an approach focused on the defendant’s psychology and battered woman syndrome. Others, however, including the New Zealand Law Society and the Public Defence Service, noted that education and guidance around the myths and misconceptions of family violence could mitigate the need for such a provision.

7.80Some submitters also noted individuals with field experience and an understanding of the contemporary social science of family violence should be considered “qualified” to give expert opinion evidence, even if they do not possess formal qualifications as a psychologist or psychiatrist. One expert we spoke with, however, noted that those with field experience may not be best placed to give this evidence if they appear to be advocates and that medical professionals may be preferred for their perceived neutrality.

7.81We also asked submitters whether they favoured a family violence evidence provision being included in the Crimes Act or the Evidence Act. Most submitters considered the Evidence Act was the logical place for an evidential provision. The minority of submitters who preferred an amendment to the Crimes Act argued it would have an important educative function, and it would be more likely lawyers would be appraised of the provisions in the context in which they were relevant.

The Commission’s view and recommendationsTop

7.82As commentators note, family violence:643

… is particularly difficult to convey in the criminal justice context because it spans a period of time (often lengthy), has a cumulative impact on those who survive it that affects how they see and respond to the world, is a pattern of behaviour rather than an event or events, is hidden, has been culturally minimised, and is more complex than an account of the physical incidents of violence that have taken place would suggest.

7.83Rules of evidence do not determine the elements of self-defence, but they affect how a case is prepared and a defendant’s story is heard at trial.644 In this context, where victims of family violence usually rely on self-defence in the “non-stereotypical” scenario of an ongoing threat posed by an intimate partner and where myths and misconceptions around family violence persist, we consider there is substantial value in a family violence evidence provision to encourage a proper assessment of self-defence claims at trial.

7.84A statutory amendment based on the Victorian evidence provision would draw attention to the evidence that would normally be considered relevant in order to fully represent the defendant’s circumstances to the jury. The trial judge would still have a role, under the Evidence Act, to determine the admissibility of such evidence in individual cases. We also expect that clarifying the relevance of expert evidence would lead to greater reliance on experts at trial. Such a provision would operate alongside Recommendation 5 above, which recommends a new provision clarifying that section 48 may apply even if a person is responding to a threat that is not imminent, to provide a comprehensive package of reform focused on improving the way in which the experiences of victims of family violence are accommodated in the application of self-defence.

7.85We have considered whether such a provision should be included in the Crimes Act or the Evidence Act. We recognise that there might be some merit in including it in the Crimes Act, if, as some submitters suggested, it may have greater visibility in that Act and thus better serve its educative purpose. It is not unusual for evidential issues specific to certain offences or defences to be addressed in that Act.645 However, evidential issues should normally be addressed in the Evidence Act, and on balance, our preference is that this provision be included in that Act.
7.86We endorse the view that people with experience in the field, as well as those with formal qualifications such as psychiatrists and psychologists, might qualify as “experts”. We consider the Evidence Act is capable of providing such recognition,646 and therefore do not make any further specific recommendations in this regard.

7.87Consistent with our views on amendments to self-defence at paragraph [7.57] above, we do not recommend that the family violence evidence provision should be limited to homicide offences. We also refer to our discussion at paragraphs [7.50]–[7.54] above as to the appropriate definition of “family violence”.

recommendation

619Julia 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 681; Toole, above n 557, at 252; and Anthony Hopkins and Patricia Easteal “Walking in Her Shoes: Battered women who kill in Victoria, Western Australia and Queensland” (2010) 35 Alt LJ 132 at 134.
620Australian Law Reform Commission and New South Wales Law Reform Commission, above n 595, at 651; and Kate Fitz-Gibbon and Julie Stubbs “Divergent directions in reforming legal responses to lethal violence” (2012) 45 Australian & New Zealand Journal of Criminology 318 at 331.
621Victorian Law Reform Commission, above n 561, at 134–135.
622Elizabeth Sheehy, Julie Stubbs and Julia Tolmie “Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls” (2014) 38 MULR 666 at 690–691.
623Evidence Act 2006, s 7. Subsection (3) states that evidence is relevant “if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”. See also Mathew Downs (ed) Cross on Evidence (online looseleaf ed, LexisNexis) at [EVA7.1]; and Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Thomson Reuters, Wellington, 2010) at 39–47. Evidence may be excluded, however, if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding, or needlessly prolong the proceeding: Evidence Act 2006, s 8. Certain exceptions also apply to hearsay evidence (Evidence Act 2006, ss 16-22) and prior consistent statements (Evidence Act 2006, s 35). We are not aware of any problems with the operation of these exceptions in this context.
624Evidence Act 2006, s 25. See also Downs, above n 623, at [EVA25.1]–[EVA25.13]; and Mahoney and others, above n 623, at 95–103.
625Evidence Act 2006, s 4.
626Robertson, above n 567, at 283.
627At 282.
628Stella Tarrant “Something is Pushing Them to the Side of Their Own Lives: A Feminist Critique of Law and Laws” (1990) 20 UWAL Rev 573 at 599.
629Victorian Law Reform Commission, above n 561, at 172–173; and Tarrant, above n 570, at 19–21.
630Sheehy, Stubbs and Tolmie, above n 622, at 690–691.
631For example, assisting the jury in determining whether the defendant did in fact fear for her life by explaining the heightened sensitivity of a primary victim to the predominant aggressor’s acts: R v Lavallee [1990] 1 SCR 852 at 882.
632Legal Services Commissioner Legal Aid Disbursement Policy: Criminal (Ministry of Justice, 31 March 2014) at 13.
633Justice Stevens “Counter-Intuitive Evidence in Sexual Assault Cases: Current Issues and Future Solutions” (paper presented to the Triennial District Court Judges’ Conference, Wellington, 14 May 2015) at 5.
634Victorian Law Reform Commission, above n 561, at 140.
635At 140 and 184.
636Crimes Act 1958 (Vic), s 322M(2).
637Crimes Act 1958 (Vic), s 322J(1). Subsection (2) defines various terms, and subsection (3) confirms that a single act of violence, and a number of acts forming part of a pattern of behaviour, may amount to abuse for the purposes of the definition in subsection (2).
638Victorian Law Reform Commission, above n 561, at 185.
639Mandy McKenzie, Debbie Kirkwood and Danielle Tyson “‘Unreasonable’ self-defence?” (2013) 2 DVRCV Advocate 12 at 15; and Tyson and others, above n 557, at 92. The authors concluded, however, that there was limited use of the Victorian evidence provision and that the potential of the reforms to challenge gender-based stereotypes around self-defence has not yet been fully realised. They call for improvement through comprehensive, consistent and ongoing training for prosecution and defence counsel, judges, expert witnesses and other legal professionals.
640Australian Law Reform Commission and New South Wales Law Reform Commission, above n 595, at 652–654.
641Law Reform Commission of Western Australia, above n 563, at 293; Government of New South Wales Government response to the report of the Legislative Council Select Committee on the Partial Defence of Provocation (2013) at 185–186; and Tasmania Law Reform Institute, above n 609, at 63–64.
642Evidence Act 1977 (Qld) s 132B.
643Sheehy, Stubbs and Tolmie, above n 622, at 707.
644Tarrant, above n 570, at 20.
645See, for example, s 75 of the Crimes Act 1961 that relates to evidence of treason, which is an offence under s 73 of that Act. See also s 112 relating to evidence of perjury, false oath or false statement.
646The provisions in the Evidence Act 2006 dealing with expert evidence in criminal proceedings are sections 4 (definition of expert) and 25 (admissibility of expert opinion evidence). See also Downs, above n 623, at [EVA25.1]–[EVA25.13]; and Mahoney and others, above n 623, at 14 and 93–104.