Chapter 9
Observations from the cases


9.1If section 48 of the Crimes Act 1961 is clarified as we have recommended in Chapter 7, we expect that the defence of self-defence will be more accessible to primary victims of family violence. However, that defence will provide no relief for victims who kill their abusers other than in self-defence or defence of another, including those whose claims to self-defence are rejected by the jury. This is significant because the Family Violence Death Review Committee (FVDRC) considers that, although self-defence will be the more appropriate defence in the majority of cases in which victims of family violence kill their abusers:707

… not every victim of severe [intimate partner violence] uses retaliatory physical violence from a position of self-protection, as opposed to reacting with anger to what has been done to her. This means that it cannot be assumed that even if self-defence is appropriately reformed and sensitively applied in such cases, that it will necessarily always be available on the facts. In one of our regional reviews, the female offender had a very strong case for provocation but was unable to argue it because it had been abolished prior to the killing. Self-defence was also not available on the facts.

9.2The question is how the law should deal with such homicides, which, although not justified, often involve significant mitigating circumstances. Currently, the approach in New Zealand, for all homicides where judges have discretion, is to recognise reduced culpability mainly through sentencing.708

9.3In this chapter, we look at how the criminal justice system has responded on a case by case basis to victims of family violence who have killed abusers, particularly where the defendant did not rely successfully on self-defence. We look at how defendants were charged, whether they pleaded guilty or went to trial and how they were convicted and sentenced. We build on the summary of our case review in Chapter 3.

707Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Health Quality & Safety Commission, June 2014) at 119. As well as certain intimate partner homicides, the Family Violence Death Review Committee considers children who kill abusive caregivers may in particular fall outside the scope of self-defence, as the facts of such cases can tend to “look like retaliation rather than defensive force”: Family Violence Death Review Committee submission at 21 (footnotes omitted).
708Exceptions are cases of infanticide and killing pursuant to a suicide pact (Crimes Act 1961, ss 178 and 180) and, where relevant, cases in which a defendant is insane. Otherwise, reduced culpability for homicide may be recognised outside the black letter of the law, through the use of prosecutorial discretion to reduce the charge and/or accept a plea to a lesser charge, or jury nullification.