Contents

Chapter 5
Problems with the current law – is there a need for reform?

Problems relying on self-defence

5.4The majority of victims of family violence who defend murder or manslaughter charges at trial rely on self-defence.220 Self-defence is provided for in section 48 of the Crimes Act 1961 and is discussed in Chapter 3 of this Issues Paper.
5.5While the discussion below is focused on female primary victims who kill their male predominant aggressor in response to family violence (as this represents the majority of cases), we recognise that other victims of family violence, such as male partners, children and step-children, also kill their abusers.221 We also recognise that family violence can be perpetrated in same-sex relationships.222 The issues that arise for female primary victims who kill their abusive partners are also likely to arise for all other victims of family violence who kill their abusers.223

Problems applying self-defence to the circumstances in which women kill

5.6While self-defence is, on its face, gender neutral, it is widely accepted by commentators224 and law reform bodies225 that the way in which self-defence is interpreted and applied can disadvantage women.
5.7Homicide in New Zealand (and indeed worldwide) is overwhelmingly committed by men.226 As a result, the law of self-defence, and in particular the concepts developed by the courts to assess whether the force used by the defendant was reasonable in the circumstances, have developed in the context of male violence, with male standards of reasonableness.227 However, research shows that the circumstances in which men and women kill in self-defence are quite different. When men kill in self-defence, they are usually responding to a one-off, spontaneous encounter with a stranger, such as a pub brawl between two people of relatively equal strength.228 As such, they are responding with “immediacy” and in a manner “proportionate” to that threat.229
5.8In contrast, when women kill, they most often kill intimate partners and are most likely to kill in response to violent and psychological abuse from their partner over a long period of time.230 The way in which a woman kills in these situations is often dictated by her physical strength relative to her abuser. For example, research suggests that women often kill their partners in a non-confrontational situation (a pre-emptive attack) rather than waiting to match their strength against the abuser in a direct confrontation.231 Women will frequently use a weapon when retaliating, rather than defending themselves with their bare hands.232
5.9Many commentators argue that, while a male acting in self-defence will normally satisfy the concepts used to assess the reasonableness of the force used, women who are primary victims acting in response to family violence find it more difficult, as their behaviour is often at the margin of what is traditionally regarded as self-defence. Questions arise as to whether the danger posed by the deceased predominant aggressor was sufficiently imminent, thereby excluding alternative non-violent options, and whether the response was proportionate to the threat. Some commentators argue that this can deny victims of family violence the protection of self-defence because their actions do not conform to established patterns of “male versus male” violence and that this constitutes a gender bias in the interpretation and application of the defence, which is inconsistent with the bedrock principle of equality before the law.233
5.10Others argue that the simple fact that aspects of the defence work against victims of family violence is not itself evidence of unfairness.234 Unfairness would only arise if the motivation and circumstances of the offending fall within the reason for allowing the defence, but the offenders are unable to avail themselves of the defence because of the way it is constructed.235 As discussed above, the fundamental principle underlying self-defence is necessity – force is justified because no alternative is available to the defendant in order to preserve his or her life.236
5.11Yet another view advanced by some, particularly Australian commentators, is that it is not the law but rather prevailing community understandings and institutional attitudes towards family violence that continue to make self-defence relatively inaccessible to women.237 This is discussed further at paragraphs 5.52–5.71 below.

5.12We address below the specific problems with applying the concepts of reasonableness – imminence, lack of alternative options and proportionality – in circumstances where a victim of family violence commits homicide.

Imminence and lack of alternative optionsTop

5.13The effect of Wang is that self-defence is only available where there is imminence or immediacy of life-threatening violence and no reasonable opportunity to seek protection without recourse to the use of force.238 This is problematic for two reasons.
5.14First, the concept of “imminence” is difficult to reconcile with the ongoing and cumulative nature of family violence, described in Chapter 2 above. It requires a defendant who has suffered abuse and controlling behaviour for some time to nominate a single point of confrontation or threat as the reason for his or her retaliation. It focuses on the events immediately preceding the homicide rather than on the dynamics of the abusive relationship as a whole. This misunderstands the nature of violent relationships.239 While individual incidents of violence on their own may not be life threatening, the cumulative effects of abuse may well be.240
5.15Second, the requirement to demonstrate imminence wrongly assumes that a delayed threat will always be avoidable.241 The rationale for requiring imminence is that the more removed in time the threat is, the greater the opportunity for non-violent intervention or avoidance. While this may be the case most of the time, it may not always be true. In particular, the Family Violence Death Review Committee (FVDRC) identifies that it can be very difficult for a primary victim to safely leave a violent relationship, and indeed, they are at greatest risk of being killed by their abuser in the context of separation.242 This is discussed below at paragraphs 5.62–5.66.
5.16The imminence requirement can therefore act as a threshold that prevents a defendant from relying on self-defence when, in reality, they had no real alternative to the use of force. This interpretation can undermine the underlying principle of necessity.243 Imminence arguably functions only to provide assurance that the defensive action is necessary to avoid the harm. Where there is a conflict between imminence and the underlying principle of necessity, necessity must prevail.244
5.17In 2001, the Law Commission concluded that:245

So long as the action is necessary, in that no non-violent alternative will achieve that end, there should be no additional requirement of imminence. Imminence of harm can be a factor to be considered in making judgments of necessity, but it should not be an independent requirement in addition to necessity. In New Zealand, imminence is an evidential presumption and not a rule of law. It is useful because in the absence of imminent danger, there is usually no necessity for defensive force, as the danger can be avoided in other ways. However […] necessity can exist without imminence if the danger is unavoidable. In some situations, inevitability may be a better tool for assessing the need for defensive action.

ProportionalityTop

5.18Proportionality is another related concept that causes difficulties for victims of family violence. Where there is equality of arms between the defendant and the deceased, such as the traditional one-off pub brawl scenario, there is little difficulty in demonstrating that the force used by the defendant was proportionate to the threatened violence. However, where chronic family violence is involved, the notion of proportionality of force loses coherence, as the defendant is not necessarily responding to a single event but in anticipation of future repeated violence.

5.19Some commentators have identified that the level of force used in these circumstances can present a barrier to the successful reliance on self-defence.246 As noted at paragraph 5.8 above, a primary victim will often use a weapon (typically a kitchen knife) against their unarmed predominant aggressor. Taken out of context, a victim of family violence can be seen as responding to a threat or attack that is not imminently “life threatening”, in which case, the use of fatal force may be regarded as excessive.247
5.20Some commentators argue that, if the defendant is trapped in a situation in which repeated violence is reasonably expected, considerable latitude ought to be given in assessing whether the force was proportionate.248 On its face, section 48 requires proportionality to be assessed in the circumstances as the defendant believes them to be. These circumstances would include the disparity in size and physical strength and belief that leaving will not protect the defendant against the threat.249 There may, however, remain a risk that the disproportionality of the defendant’s response to the threat is given undue emphasis by juries.250
5.21This was not considered in detail by the Law Commission in 2001. Since then, however, it has been the subject of review and reform in other jurisdictions.251 Our own case analysis identifies that, in most cases, the defendant responds with a weapon against an unarmed predominant aggressor,252 but even when it appears undisputed that the defendant was responding to an immediate and violent assault, a claim of self-defence is not always successful.253 Accordingly, it cannot be ruled out that juries are assessing the proportionality of the force in the confines of the immediate confrontation and concluding that, as the deceased was unarmed, the defendant was acting disproportionately.

What is the case for legislative reform?Top

5.22Our preliminary view is that the concepts of imminence, proportionality and lack of alternatives used by the courts to assess the reasonableness of the force have the potential to unfairly exclude victims of family violence – typically women – from successfully relying on self-defence in circumstances where they had no real alternative to the use of force.

5.23However, the problem is not with the self-defence provision itself but rather with the way in which the courts have interpreted and applied section 48. Accordingly, we have considered whether the interpretation of “reasonable force” under section 48 should be left to the courts to continue to develop on a case-by-case basis. There are several points in favour of this approach.

5.24First, we agree that section 48 is theoretically broad enough to accommodate self-defence in the context of family violence. This seems consistent with the views of the FVDRC (which noted New Zealand has one of the more generously worded self-defence provisions)254 and the expectations of the Committee developing section 48.255 This was recognised by the Tasmania Law Reform Institute256 and the Law Reform Commission in Ireland as a reason for adopting an objective test that required the reasonableness of the force to be assessed in the circumstances of the defendant.257

5.25Second, views on what is “reasonable” change over time in accordance with changing community values, particularly with reference to family violence. It is arguably preferable that the statute remain flexible enough to enable changes in community standards of reasonableness to be reflected in the cases.

5.26Third, arguably there has already been some development in the cases since R v Wang, in the case of R v Oakes, where self-defence was put to the jury even when imminence was not suggested,258 and in R v Powell, where the Court of Appeal confirmed that juries need not be directed to consider imminence.259

5.27On the other hand, however, the relatively small number of cases, and even smaller number of appeals, suggests that future developments in case law will be slow. In 2003, one of the Ministry of Justice’s main reasons for declining to adopt the Law Commission’s 2001 recommendations was its expectation that the law would continue to develop on a case-by-case basis. However, to date that has not occurred.

5.28Furthermore, there have been enough positive references by the courts to Wang and the concepts of imminence, lack of alternatives and proportionality, most recently by the Court of Appeal in R v Vincent, to suggest that a move away from those concepts is unlikely, at least in the near future.260 In the meantime, uncertainty about the availability of self-defence at trial may lead victims of family violence to plead guilty to avoid trial, even in cases where legitimate claim of self-defence could be made out, particularly if there is no “back-stop” of a partial defence.

5.29Accordingly, our preliminary view is that a case for legislative reform may be made out.

Questions for Consultation

Q3 Should it be possible for a defendant who is a victim of family violence to be acquitted on the basis that he or she acted in self-defence where:

(a) the harm sought to be avoided was not imminent or immediate; and/or

(b) the fatal force was not proportionate to the force involved in the harm or threatened harm?

Q4 If the answer to question 3 is yes, do you consider that legislative reform is necessary to achieve that objective?
220See paragraph 2.65 above.
221For example, in R v Erstich, above n 20, the deceased was the defendant’s father. The defendant obtained a key to his grandfather’s gun cabinet, obtained a gun and waited for the deceased to return home before fatally shooting him. The circumstances of this case bear more similarities to cases of battered women killing their abuser than the one-off spontaneous encounters on which the law of self-defence arguably developed. In R v Raivaru, above n 20, the deceased was the defendant’s step-father. In the Australian case of DPP v Bracken (2014) 96 VSC, the defendant was the male de facto partner of the female deceased.
222The findings of the FVDRC in relation to family violence-related homicide in same-sex relationships is discussed at paragraph 2.30.
223Victorian Law Reform Commission, above n 16, at 61.
224For example, see: Kellie Toole “Self-Defence and the Reasonable Woman: Equality before the New Victorian Law” (2012) 36 Melbourne University Law Review 250; Kim, above n 26; Anthony Hopkins and Patricia Easteal “Walking in Her Shoes: Battered women who kill in Victoria, Western Australia and Queensland” (2010) 35 Alternative Law Journal 132; Victorian Law Reform Commission, above n 16; Law Commission, above n 73; Mandy McKenzie, Debbie Kirkwood and Danielle Tyson “‘Unreasonable’ self-defence?” (2013) 2 DVRCV Advocate 12.
225Victorian Law Reform Commission, above n 16; Law Reform Commission of Western Australia, above n 16; Law Reform Commission of Ireland, above n 132; Law Commission of England and Wales Partial Defences to Murder (August 2004); Queensland Law Reform Commission, above n 182.
22684 per cent of offenders convicted of homicide and related offences in the past 10 years in New Zealand were male. This profile is typical of offending across the world. See: Statistics NZ “Adults convicted in court by sentence type - most serious offence fiscal year” <nzdotstat.stats.govt.nz>; Victorian Law Reform Commission Defences to Homicide: Options Paper (2003) at xiv; Toole, above n 224, at 255.
227Law Commission, above n 73, at 12; Toole, above n 224, at 256–257; Kim, above n 26, at 3.
228Victorian Law Reform Commission, above n 16, at 61.
229Toole, above n 224, at 256.
230Ten of the 15 female intimate partner homicide offenders identified by the FVDRC were responding (or suspected to be responding) to family violence. While there is limited analysis of female homicide offending in New Zealand, this is supported by Australian homicide studies, particularly those conducted in Victoria. See: Family Violence Death Review Committee, above n 2, at 40–41; Toole, above n 224, at 256–257; Victorian Law Reform Commission, above n 16, at 61; Victorian Law Reform Commission, above n 226, at xiv.
231Law Commission, above n 73, at 12–13; Victorian Law Reform Commission, above n 16, at 62; Toole, above n 224, at 256; Kim, above n 26, at 6; McKenzie, Kirkwood and Tyson, above n 224.
232The FVDRC identified that 80 per cent of female primary victims who killed their male predominant aggressors used a knife to inflict one or sometimes two stab wounds. See: Family Violence Death Review Committee, above n 11, at 47; Toole, above n 5, at 256–257; McKenzie, Kirkwood and Tyson, above n 5, above n 5.
233Toole, above n 224, at 257.
234Kevin Dawkins and Margaret Briggs “Criminal Law” (2001) 3 New Zealand Law Review 317 at 349.
235At 349.
236Campbell, above n 133, at 80. For example, Kirby J did not consider that the defendant’s actions were “reasonably necessary to remove further violence threatening her with death or really serious injury” Osland v R, above n 133, at 342.
237Kim, above n 26; Toole, above n 224; McKenzie, Kirkwood and Tyson, above n 224; Hopkins and Easteal, above n 224.
238R v Wang, above n 135, at 539; Simester and Brookbanks, above n 129, at 522.
239Law Reform Commission of Western Australia, above n 16, at 274; Victorian Law Reform Commission, above n 16, at 77–79.
240Victorian Law Reform Commission, above n 16, at 78.
241Campbell, above n 133, at 81.
242Family Violence Death Review Committee, above n 2, at 80; Martin and Pritchard, above n 26.
243Campbell, above n 133, at 81; Angelica Guz and Marilyn McMahon “Is Imminence Still Necessary? Current Approaches to Imminence in the Laws Governing Self-Defence in Australia” (2011) 13 Flinders Law Journal 79 at 117.
244Guz and McMahon, above n 243, at 119–120.
245Law Commission, above n 73, at 14–15.
246Victorian Law Reform Commission, above n 16, at 83; Law Reform Commission of Western Australia, above n 16, at 165; Law Commission of England and Wales, above n 225, at [4.20]; Law Reform Commission of Ireland, above n 132, at [2.204]; Campbell, above n 133, at 96–99; Kim, above n 26, at 7; Toole, above n 224, at 257; McKenzie, Kirkwood and Tyson, above n 224.
247Victorian Law Reform Commission, above n 16, at 83.
248Campbell, above n 133, at 96–99.
249R v Oakes, above n 203, at 676.
250Victorian Law Reform Commission, above n 16, at 83.
251At 81–84; Law Reform Commission of Western Australia, above n 16, at 165–166; Tasmania Law Reform Institute Review of the Law Relating to Self-defence: Final Report (20 Tasmania Law Reform Institute 2015) at 56.
252See paragraph 2.63 above.
253Of the seven cases where the defendant was responding to a violent assault, three cases resulted in an acquittal, and four cases resulted in a manslaughter conviction.
254Family Violence Death Review Committee, above n 2, at 116.
255Criminal Law Reform Committee, above n 204.
256Tasmania Law Reform Institute, above n 251, at 56.
257Law Reform Commission of Ireland, above n 132, at 53.
258Dawkins and Briggs, above n 234, at 349.
259R v Powell, [2002] 1 NZLR 666 (CA), at [43].
260Vincent v R, above n 143, at [27].