1One of gravest situations a person can face is killing another person in order to protect their own life, or the life of another. This is even more so if the person they are protecting themselves from is a family member.
2Yet this is the unfortunate reality for some New Zealanders. On average each year in this country, among the large number of households affected by family violence, a small number of victims of family violence will kill their abusers.
3When a victim of family violence kills their abuser, they will usually be charged with murder. In only some of these cases, however, will the defendant be able to successfully rely on self-defence under the Crimes Act 1961. In reality these defendants are more likely to be convicted of the lesser crime of manslaughter, than be convicted of murder or acquitted on the basis of self-defence.
4This situation raises the fundamental question of what is the most appropriate legal response to victims of family violence who commit homicide. It is with this question that this Report is concerned.
5Our terms of reference from the Minister of Justice arose from the Fourth Annual Report of the Family Violence Death Review Committee (FVDRC). The FVDRC considers that at present the defences available to homicide in New Zealand do not cater adequately for victims of family violence who kill their abusers. The FVDRC recommended the Government consider modifying the test for self-defence so that it is more readily accessible to victims of family violence who kill their abusers, and introducing a partial defence to murder that can be relied on by victims of family violence who kill abusers other than in self-defence.
6The Law Commission’s terms of reference are as follows:
The Law Commission will re-consider whether the law in respect of a victim of family violence who commits homicide can be improved. As part of this review the Law Commission shall consider:
(a) Should the test for self-defence, in section 48 of the Crimes Act, be modified so that it is more readily accessible to defendants charged with murder who are victims of family violence; and
(b) Whether a partial defence for victims of family violence who are charged with murder is justified and if so in what particular circumstances; and
(c) Whether current sentencing principles properly reflect the circumstances of victims of family violence who are convicted of murder?
9Our review is limited to the specific category of victims of family violence who have killed their abusers. There is a question around whether there should be a broader review of the law of homicide, as has occurred in a number of comparable jurisdictions. We consider that is worthy of further consideration.
11Many of the recommendations of those two reports were adopted by the Government. In particular, the partial defence of provocation was repealed in 2009. There is now some judicial discretion in respect of murder sentencing, although there remains a presumption in favour of a sentence of life imprisonment, rebuttable only if that sentence would be “manifestly unjust”.
12Importantly, however, there has been no change to the law of self-defence. Imminence remains a central requirement for self-defence in New Zealand, albeit one that has been judicially imposed rather than specified in legislation.
13The legal response to victims of family violence who commit homicide has also been a focus of recent law reform activity in a number of comparable jurisdictions. Despite this concentration of activity, however, a range of approaches has emerged to address the common problem of accommodating the experiences of victims of family violence who kill their abusers. Some jurisdictions have reformed self-defence, while others have focused on partial defences with victims of family violence in mind. The findings and experiences of this law reform work are considered throughout this Report.