Contents

Summary

Introduction

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?

7In November 2015, the Commission published an Issues Paper, Victims of Family Violence Who Commit Homicide.1 There was a call for public submissions and a number were received. The Commission also benefited considerably from meetings with individuals and stakeholders, and the expertise and advice of a panel of members of the legal profession, current and former judges, academics, victim advocates and Police.
8This Report is in three parts. The first Part sets the scene by describing the social and legal context of this review. It examines the myths about the nature of family violence and the circumstances that drive victims of family violence to kill their abusers. The second Part deals with the law of self-defence and the difficulties posed by the leading case in this context, R v Wang.2 In that case the Court of Appeal confirmed that, for a person to be acting in self-defence, they must be responding to a threat of “imminent” harm. The third Part of this Report examines whether the reduced culpability of victims of family violence who kill their abusers could be better recognised through a partial defence to murder and/or amended sentencing laws.

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.

Previous law reform activity in New Zealand and elsewhere

10The Law Commission has examined the situation of victims of family violence who commit homicide on two previous occasions. In 2001 the Commission published Some Criminal Defences with Particular Reference to Battered Defendants,3 which recommended that the Crimes Act be amended to ensure self-defence was not excluded just because the threat the defendant faced was not imminent. The Commission at the time also recommended the abolition of the partial defence of provocation and that the mandatory life sentence for murder should be replaced with a sentencing discretion. In 2007, The Partial Defence of Provocation was published,4 and, as in 2001, the Commission again recommended that provocation be abolished.

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.

1Law Commission Victims of Family Violence Who Commit Homicide (NZLC IP39, 2015).
2R v Wang [1990] 2 NZLR 529 (CA).
3Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001).
4Law Commission The Partial Defence of Provocation (NZLC R98, 2007).