Chapter 7
Options for reform of self-defence

Other legislative reforms to support self-defence

7.19A review of the literature on this topic identifies a need for any substantive reform of self-defence to be supported by a wider cultural shift in community understanding of family violence. As we identified in Chapter 5, myths and misconceptions around dynamics of family violence persist. In the context of victims of family violence who commit homicide, perhaps the greatest challenge for jurors is in understanding the defendant’s reality and the alternative non-violent options (or lack of options) open to them. Accordingly, reforms related to self-defence rely on juries being able to hear and understand the defendant’s story.428

7.20We have identified two options for legislative reform that address the wider problems around community understanding of family violence in the context of self-defence relating to evidential provisions and jury directions. These options could be considered as part of a package of reform alongside substantive reform of self-defence.

Facilitating the reception of evidence of family violence

7.21In Chapter 6, we identified that several Australian jurisdictions have accepted that, in order to ensure the domestic violence context for homicide is properly taken into account, it is necessary to have specific rules of evidence about what information the court can receive in a homicide trial where self-defence is claimed.429 The intent of such rules would be that the defendant could adduce evidence of family violence so that the jury could take such evidence into account when reaching its verdict. Such rules would include the type of evidence that constitutes evidence of family violence and its admissibility where self-defence is raised in the context of family violence. The first jurisdiction to introduce specific evidence provisions was Victoria, in 2005. The Victorian provisions (sections 322J and 322M of the Crimes Act 1958 (Vic)) are reproduced in Appendix D of this Issues Paper.

7.22As noted at paragraph 5.70, it is not clear to us that there is a problem in New Zealand in admitting evidence of family violence and/or expert opinion evidence about family violence under the provisions of the Evidence Act 2006.

7.23However, even if this is not a problem in practice, there may still be a strong case for reform.430 The Tasmania Law Reform Institute recently recommended similar provisions, stating that, while such evidence is already admissible under Tasmania’s evidence laws:431

This would have an important declaratory function and also validate the experiences of victims of family violence. It also serves an educative function for the legal profession in relation to the breadth of evidence that may be available to provide a foundation for self-defence.

7.24Evidential provisions could be provided for by an amendment to the Crimes Act 1961, as Victoria has done, or by amending the Evidence Act 2006. Such an approach was recommended (although not adopted) by the Law Reform Commission of Western Australia.

7.25An amendment to the Evidence Act would normally be most appropriate where the subject of the amendment is the admissibility of evidence, and the Evidence Act already has specific provisions on the nature of evidence that may or may not be adduced in respect of sexual offences. Section 44 sets out the limits on the nature of evidence that can be given and the questions that can be put relating to sexual cases. The purpose of the provision is to ensure that juries are not influenced by irrelevant issues in considering whether the defendant is guilty of the offence that they have been charged with.

7.26It would be consistent with the intent of section 44 to include provisions in the Evidence Act that would allow defendants to adduce evidence that indicates the effect of family violence upon victims who commit homicide. Such a provision could also require the jury to consider such evidence when assessing the defendant’s belief that their actions were a justifiable use of force to protect themselves or another person. However, if there is a wider declaratory and educative function to the provision, as recognised in Tasmania, an amendment to the Crimes Act may be more appropriate.

questions for consultation

Q10 Should reforms be introduced to provide specific guidance on the admissibility of family violence evidence where self-defence is raised in the context of family violence?

Q11 Should such guidance be contained in the Crimes Act 1961 or the Evidence Act 2006?

Jury directions where self-defence is raised in the context of family violenceTop

7.27Another option is to legislate for a standard jury direction on family violence where self-defence is raised. Jury directions recognise the role trial judges have to play in “assisting juries to recognise the significance of prior violence and to make the necessary connections between expert evidence and the issues at trial.”432

7.28Jury directions are a relatively novel approach, although there is precedent in New Zealand in the context of sexual cases in the Evidence Act 2006:

127 Delayed complaints or failure to complain in sexual cases

(1)  Subsection (2) applies if, in a sexual case tried before a jury, evidence is given or a question is asked or a comment is made that tends to suggest that the person against whom the offence is alleged to have been committed either delayed making or failed to make a complaint in respect of the offence.
(2) If this subsection applies, the Judge may tell the jury that there can be good reasons for the victim of an offence of that kind to delay making or fail to make a complaint in respect of the offence.

7.29The advantage of a jury direction is that it addresses the problem of community misunderstandings around family violence without altering the substantive law of self-defence.

7.30A potential downside of requiring a standard jury direction in all cases is the risk that, if the direction does not relate to the facts, it may lose any real meaning, or worse, jurors may look for some deeper meaning. We also note that there is limited evidence of the effectiveness of jury directions. In the context of sexual offending, it is noted that there is little evidence that jury directions aimed at addressing stereotypical and biased expectations of witness behaviour are effective.433 While there is some evidence to suggest that directions given early during a court case are more effective in preventing preconceptions, directions given later (when jurors may have already made up their minds) have little or no effect on verdicts.434

7.31There are several forms a jury direction could take. It could refer specifically to imminence and proportionality, similar to the recommendation of the Law Commission in Western Australia, set out at paragraph 6.27 above. This option could be adopted in addition to or instead of any of the options addressing the substantive law of self-defence discussed above.

7.32Alternatively, a jury direction could focus on addressing some of the key community misconceptions around the dynamics of family violence, similar to the jury direction provisions in Victoria, which have recently been endorsed by the Law Reform Institute of Tasmania. These are reproduced in Appendix D. As we noted in Chapter 6, the Victorian Law Reform Commission recommended against standard jury directions, noting that a “one size fits all” approach would not allow sufficient flexibility.435 The Victorian provisions subsequently introduced in 2014 do, however, allow the judge to tailor the direction to the circumstances of a particular case.436

questions for consultation

Q12 Should reforms be introduced to provide for jury direction where self-defence is raised in the context of family violence?

Q13 Should any jury direction be focused on addressing common misunderstandings of family violence (the Victorian model) or on directing a jury on how the concepts of imminence and proportionality apply in each individual case?

428Fitz-Gibbon and Stubbs, above n 306, at 324.
429Law Reform Commission of Western Australia, above n 16, at 291; Tasmania Law Reform Institute, above n 251, at 63–64; Select Committee on the Partial Defence of Provocation, above n 339, at 185.
430Victorian Law Reform Commission, above n 16, at [4.29].
431Tasmania Law Reform Institute, above n 251, at 63.
432Victorian Law Reform Commission, above n 16, at [4.140].
433Elisabeth McDonald and Yvette Tinsley “Chapter 8: Evidence Issues” in From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Victoria University Press, Wellington, NZ, 2011) at 372.
434At 372.
435Victorian Law Reform Commission, above n 16, at 192.
436Tasmania Law Reform Institute, above n 251, at 69.