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Endnotes

[1] In 1996 a number of government departments commissioned a survey into violence against women by their partners. The resulting study found that around a quarter of the respondents with current partners and almost three-quarters of respondents with recent partners (ie partners within the last two years) reported at least one act of physical or sexual abuse by their partner. Three per cent of women with current partners and 24 per cent of women with recent partners reported that they had been afraid that their partner might kill them: Allison Morris Women's Safety Survey 1996 (Victimisation Survey Committee, Wellington, 1997) viii, ix. See also Julie Leibrich, Judy Paulin and Robin Ransom Hitting Home: Men Speak about Abuse of Women Partners (Department of Justice in Association with AGB McNair, 1995) and the studies referred to in Nan Seuffert "Domestic Violence, Discourses of Romantic Love, and Complex Personhood in the Law" (1999) 23 Melb U LR 211, 212_213.

[2] See, for example, Bruce Robertson "Battered Woman Syndrome: Expert Evidence in Action" (1998) 9 Otago LR 277.

[3] See, for example, Robertson, above n 2.

[4] See, for example, Suzanne Beri "Justice for Women Who Kill: A New Way?" (1997) 8 A Fem LJ 113.

[5] Judith Ablett Kerr "The Criminal Justice System: Crying Out for a Royal Commission or Merely Crying Over Spilt Milk?" (1998) 507 LawTalk 13.

[6] Rebecca Bradfield "Is Near Enough Good Enough? Why Isn't Self-defence Appropriate for the Battered Woman?" (1998) 5 Psychiatry, Psychology and Law 71; Susan Edwards Sex and Gender in the Legal Process (Blackstone Press, London, 1996) [Sex and Gender in the Legal Process]; Jeremy Horder Provocation and Responsibility (Clarendon Press, Oxford, 1992) 186_197 [Provocation and Responsibility]; Elizabeth M Schneider "Resistance to Equality" (1996) 57 U Pitt L Rev 477, 493; Nan Seuffert "Battered Women and Self-Defence" (1996_97) 17 NZULR 292; Elisabeth McDonald "Women Offenders and Compulsion" (1997) NZLJ 402; Helen Brown "Provocation as a Defence to Murder: To Abolish or to Reform?" (1999) 12 A Fem LJ 137; Adrian Howe "Reforming Provocation (More or Less)" (1999) 12 A Fem LJ 127; Stanley Yeo Unrestrained Killings and the Law (Oxford University Press, Delhi, 1998) 51 [Unrestrained Killings and the Law].

[7] Mark Findlay, Stephen Odgers and Stanley Yeo Australian Criminal Justice (Oxford University Press, Melbourne, 1994) 278.

[8] Excessive self-defence and diminished responsibility are not currently available in

New Zealand.

[9] Set out in Regina Schuller and Patricia A Hastings "The Scientific Status of Research on Domestic Violence Against Women" in David L Faigman and others Modern Scientific Evidence: The Law and Science of Expert Testimony (West, Minnesota, 1997) vol 1, 351.

[10] Lenore E Walker The Battered Woman (Harper and Row, New York, 1979).

[11] The theory of learned helplessness was developed by Seligman and applied to battered women by Walker.

[12] Lenore E Walker The Battered Woman Syndrome (Springer, New York, 1984) [The Battered Woman Syndrome].

[13] See, for example, Marilyn McMahon "Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome" (1999) 6 Psychiatry, Psychology and Law 23; David L Faigman and Amy J Wright "The Battered Woman Syndrome in the Age of Science" (1997) 39 Ariz L Rev 67. These commentators criticise Walker's methodology and the conclusions she draws from her work.

[14] Faigman and Wright, above n 13, 77_78.

[15] The Battered Woman Syndrome, above n 12, 96.

[16] D Dutton and S Painter (1993) "The Battered Woman Syndrome: Effects of Severity and Intermittency of Abuse" (1993) 63 Amer J Orthopsychiat 614, cited in McMahon, above n 13, 33. Several studies of patterns of violence in battering relationships are reviewed in Schuller and Hastings, above n 9, 354_362.

[17] Schuller and Hastings, above n 9, 353; Regina A Schuller and Neil Vidmar "Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature" (1992) 16 Law & Hum Behavior 273, 280_281.

[18] Irene Hanson Frieze "Investigating the Causes and Consequences of Marital Rape" (1983) 8 Signs 532; The Battered Woman Syndrome, above n 12, 47_50, Marybeth K Hendricks-Matthews "Survivors of Abuse" (1993) 20 Family Violence and Abusive Relationships 391, 398.

[19] Karla Fischer, Neil Vidmar and Rene Ellis "The Culture of Battering and the Role of Mediation in Domestic Violence Cases" (1993) 46 SMU L Rev 2117, 2121 at n 18.

[20] Susan M Ross "Risk of Physical Abuse to Children of Spouse Abusing Parents" (1996) 20 Child Abuse and Neglect 589.

[21] Neville Robertson and Ruth Busch "Not in Front of the Children _ the Literature on Spousal Violence and its Effects on Children" (1994) 1 BFLJ 107, 111_112. See also the studies referred to in n 60.

[22] Hendricks-Matthews, above n 18, 394_395; P Jaffe, N Lemon, J Sandler and D Wolfe Working Together to End Domestic Violence (Mancorp Publishing, Florida, 1996) 28.

[23] David L Faigman (1986) "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent" (1986) 72 Va L Rev 619, 640_643.

[24] McMahon, above n 13, 34; Schuller and Hastings, above n 9, 370_373; Schuller and Vidmar, above n 17, 280.

[25] Lenore E Walker "The Battered Woman Syndrome is a Psychological Consequence of Abuse" in Richard J Gelles and Donileen R Loske (eds) Current Controversies on Family Violence (Sage, London, 1993) 133, 134_135.

[26] Christopher Peterson, Steven Maier and Martin Seligman Learned Helplessness: A Theory for the Age of Personal Control (Oxford University Press, Oxford, 1993).

[27] Peterson, Maier and Seligman, above n 26, 238_239.

[28] Lee H Bowker, "A Battered Woman's Problems are Social, Not Psychological" in Richard J Gelles and Donileen R Loseke (eds) Current Controversies on Family Violence (California, Sage, 1993) 154; Schuller and Hastings, above n 9, 354_362.

[29] The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act (US Department of Justice, Office of Justice Program, National Institute of Justice, US Department of Health and Human Services, National Institute of Mental Health, 1996) section 1, 14.

[30] See the studies referred to in McMahon, above n 13, 29. See also Schuller and Vidmar, above n 17, 281.

[31] Diagnostic and Statistical Manual of Mental Disorders (4th ed, American Psychological Association, Washington, 1994), 309.18. Domestic battering is referred to in DSM IV as a stressor that might give rise to symptoms of PTSD. However, DSM IV does not divide PTSD into types or subsets.

[32] The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act, above n 29, 19.

[33] Walter J Gleason "Mental Disorders in Battered Women: An Empirical Study" (1993) 1 Violence and Victims 53.

[34] See the discussion in J Briere Psychological Assessment of Adult Posttraumatic States (American Psychological Association, Washington, DC, 1997) 61.

[35] The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act, above n 29, 17.

[36] Mary Anne Dutton "Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome" (1993) 21 Hofstra L Rev 1191, 1195.

[37] Ruka v Department of Social Welfare [1997] 1 NZLR 154, 173 (CA).

[38] New Zealand Law Commission Evidence Code and Commentary: R55 (Wellington, 1999) s23(1).

[39] "Counter-intuitive" evidence is evidence that runs counter to commonly held beliefs or expectations.

[40] See paras 16_17.

[41] The relevance of economic factors is discussed by Elisabeth McDonald in "Defending Abused Women: Beginning a Critique of New Zealand Criminal Law" (1997) 27 VUWLR 673, 674.

[42] This refers to violence inflicted on a partner to prevent her from leaving a relationship, to retaliate for her departure or to end the separation forcibly. See the discussion in Martha R Mahoney "Legal Images of Battered Women: Redefining the Issue of Separation" (1991) 90 Mich L Rev 1.

[43] The Validity and Use of Evidence Concerning Battering and Its Effects in Criminal Trials: Report Responding to Section 40507 of the Violence Against Women Act, above n 29, 8.

[44] In the absence of a statutory provision to the contrary, and with the exceptions of insanity and diminished responsibility, and (in the regulatory context) absence of fault, this rule concerning the burden of proof is also applicable to other defences.

[45] R v Wang [1990] 2 NZLR 529, 534 (CA).

[46] R v Smith (14 October 1994) unreported, Court of Appeal, CA 263/94, 5_6.

[47] JB Robertson (ed) Adams on Criminal Law (Brookers, Wellington, 1992) Crimes Act, para CA48.08A (updated 4 February 2000) [Adams].

[48] Seuffert, above n 6; Elisabeth McDonald "Criminal Defences for Women" in New Zealand Law Society Women in the Criminal Justice System (New Zealand Law Society, Wellington, 1997) 46_49.

[49] Julie Stubbs and Julia Tolmie "Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law?" in Julie Stubbs (ed) Women, Male Violence and the Law (Institute of Criminology, Sydney, 1994) 192, 195.

[50] Stella Tarrant, "Something is Pushing Them to the Side of their Own Lives: a Feminist Critique of Law and Laws" (1990) 20 UWAL Rev 573, 588-589. Contrast Holly Maguigan "Battered Women and Self-Defence: Myths and Misconceptions in Current Reform Proposals" (1991) 140 U Pa L Rev 379.

[51] R v R (1981) 28 SASR 321 (SC).

[52] R v Lavellee [1990] 1 SCR 852.

[53] R v Secretary (1996) 107 NTR 1 (Supreme Court of the Northern Territory, Court of Criminal Appeal).

[54] R v Lavellee, above n 52, cited in R v Oakes [1995] 2 NZLR 673, 676 (CA).

[55] R v Oakes [1995] 2 NZLR 673, 676 (CA).

[56] R v Wang, above n 45, 529.

[57] R v Wang, above n 45, 534.

[58] R v Wang, above n 45, 535.

[59] R v Wang, above n 45, 536.

[60] Elizabeth Hore, Janne Gibson and Sophy Bordow Domestic Homicide (Family Court of Australia, Canberra, 1996) 29_30, 45_49; Mahoney, above n 42; Morris, above n 1, 54; Kenneth Polk When Men Kill (Cambridge University Press, Cambridge, 1994) 28; Patricia Weiser Easteal Killing the Beloved: Homicide between Adult Intimates (Australian Institute of Criminology, Canberra, 1993) 59_65, 85_87. See also the studies cited in Hore, Gibson and Bordow, this n, 12_13; Sex and Gender in the Legal Process, above n 6, 374 and McDonald, above n 41, 680. While much of this research is foreign, it comes from countries (Australia, the United States, Canada and Britain) that are very similar to New Zealand socially and culturally.

[61] R v Tepu (11 December 1998) unreported, High Court, Wellington Registry, T 889/98, records that the defendant killed his girlfriend because she reported his beating of her to the police. The defendant had successfully argued provocation at trial.

[62] Ruth Busch, Protection from Family Violence: a Study of Protection Orders Under the Domestic Protection Act 1992 (Abridged) (Victims Task Force, Wellington, 1982). However, note that Morris, above n 1, x, found that over two-thirds of the women whose partners had been dealt with by the police were "very satisfied" or "satisfied" on the last occasion this occurred.

[63] See the cases discussed in Ruth Busch "Don't Throw Bouquets at Me ... (Judges) Will Say We're In Love: an Analysis of New Zealand Judges' Attitudes Towards Domestic Violence" in Julie Stubbs (ed) Women, Male Violence and the Law (Institute of Criminology and Sydney University Law School, Sydney, 1994) 104.

[64] Robert F Schopp Justification Defenses and Just Convictions (Cambridge, Cambridge University Press, 1998) 99_102.

[65] R v Wang, above n 45, 539.

[66] About four or five families or people facing serious domestic violence are relocated overseas by WINZ every year. The criteria for eligibility are (a) the applicant's safety is under an on-going threat of severe violence from another person; (b) all other options of relocating within New Zealand to avoid the threat have been exhausted; (c) intention to reside in Australia until the threat is averted; and (d) the Police support the application for assistance and confirm that it is necessary for the applicant's safety to relocate outside New Zealand. "Winz Pays for At-Risk People to Shift to Aussie" The Dominion, Wellington, New Zealand, 30 May 2000, 1 and personal communication with WINZ 22 June 2000.

[67] Stubbs and Tolmie, above n 49, 194.

[68] R v Oakes, above n 55, 676.

[69] In an analysis of spousal killings in England and Wales between 1989 and 1993, Edwards found that males were significantly more likely than females to use the body as a deadly force. A similar gender divide was found in Canada and Australia: Sex and Gender in the Legal Process, above n 6, 368_370. Compare the study by Anderson of murder between sexual intimates in New Zealand between 1988_1995 (22 female offenders and 83 male offenders) in which 13 per cent (3) of female and 8 per cent (7) of male offenders killed by a manual assault: Tracey Anderson Murder between Sexual Intimates in New Zealand between 1988_1995 (Research submitted to the Victoria University of Wellington in fulfilment of the requirements for the Applied Degree of Masters in Criminology, 1997) 31.

[70] The considerable literature in the area would seem to indicate this.

[71] R v Howe (1958) 100 CLR 448 (HC).

[72] Palmer v R [1971] AC 814 (PC).

[73] Viro v R (1978) 141 CLR 88 (HC).

[74] Zecevic v R [1987] 162 CLR 645 (HC).

[75] Section 15 of the Criminal Law Consolidation Act 1935 (SA).

[76] Unrestrained Killings and the Law, above n 6, 119.

[77] Unrestrained Killings and the Law, above n 6, 127.

[78] Unrestrained Killings and the Law, above n 6, 165.

[79] Viro v R, above n 73, 139, per Mason J.

[80] Viro v R, above n 73, 146_147, per Mason J.

[81] Criminal Law Revision Committee Offences against the Person, 14th report, (HMSO, London, 1980) Cmnd 7844, recommendation 73, 138.

[82] Law Commission (England and Wales) Criminal Law: A Criminal Code for England and Wales, Law Com No 177 (HMSO, London, 1989) 68, s59 of the draft code: "A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he believes the use of the force which causes death to be necessary and reasonable to effect a purpose referred to in section 44 (use of force in public or private defence), but the force exceeds that which is necessary and reasonable in the circumstances which exist or (where there is a difference) in those circumstances which he believes to exist".

[83] House of Lords Select Committee on Murder and Life Imprisonment Report of the Select Committee on Murder and Life Imprisonment (HMSO, London, 1989) HL78-I, para 89.

[84] Noel O'Brien "Excessive Self-Defence: A Need for Legislation" (1983) 25 Crim LQ 441, 453.

[85] Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General Discussion Paper: Model Criminal Code: Chapter 5: Fatal Offences Against the Person (ACT, Model Criminal Code Officers Committee, 1998) 113 [Model Criminal Code].

[86] Zecevic v R, above n 74, 653, per Mason J.

[87] Zecevic v R, above n 74, 664, per Wilson, Dawson and Toohey JJ.

[88] Zecevic v R, above n 74, 654, per Mason J.

[89] South Australian Domestic Violence Council Domestic Violence (Women's Adviser's Office, Department of Premier and Cabinet, Adelaide, 1987) recommendation 100, 91.

[90] Proposed by the former Women for Justice for Women Trust, based in Christchurch.

[91] Proposed by the Rights of Women Organisation, based in London.

[92] Proposed in submissions to the Australian Law Reform Commission, as reported in Equality Before the Law: Justice for Women: R69 (Sydney, 1994) 277.

[93] Beri, above n 4, 114.

[94] The United Kingdom defence was not gender specific.

[95] Beri, above n 4, 116.

[96] Anderson notes that the domestic violence results from her study found that men had the most violent tendencies among both victims and offenders: Anderson, above n 69, 42. Leibrich, Paulin and Ranson, refer to a 1991 study by Fanslow, Chalmers and Langley that found that between 1978 and 1987, 47 per cent of the 193 female homicide victims were killed by an existing or former male partner and there was a history of abuse in 56 per cent of these cases: Leibrich, Paulin and Ranson, above n 1, 28.

[97] Report of the Chief Justice's Taskforce on Gender Bias (Perth, 1994) 214.

[98] The Taskforce was commenting on the Model Criminal Code version of self-defence. This lists five situations in which self-defence may occur: defending oneself or another, preventing or ending unlawful imprisonment, protection of property and prevention or termination of trespass.

[99] Hore, Gibson and Bordow, above n 60, 30; Easteal, above n 60, 73, 91_92.

[100] Jane Maslow Cohen "Regimes of Private Tyranny: What do they Mean to Morality and for the Criminal Law?" (1996) 57 Uni of Pitt LR 757.

[101] Fiona Manning Self-defence and Provocation: Implications for Battered Women who Kill and for Homosexual Victims (New South Wales Parliamentary Library, 1996) 23.

[102] R v Duffy [1949] 1 All ER 932n (CCA). This was a case in which a woman killed an abusive husband who had assaulted her and prevented her from leaving him. After he went to sleep she killed him with a hatchet and a hammer.

[103] Mancini v Director of Public Prosecutions [1942] AC 1, 9 (HL).

[104] Bedder v Director of Public Prosecutions [1954] 1 WLR 1119 (HL).

[105] (3 October 1961) 328 NZPD 2681.

[106] R v McGregor [1962] NZLR 1069, 1081 (CA).

[107] R v McGregor, above n 106, 1081.

[108] R v McGregor, above n 106, 1081.

[109] R v McGregor, above n 106, 1082.

[110] R v McGregor, above n 106, 1082.

[111] See the cases and criticism cited by the Court of Appeal in R v McCarthy [1992] 2 NZLR 550, 557 (CA).

[112] R v McCarthy, above n 111.

[113] R v McCarthy, above n 111, 558.

[114] R v Campbell [1997] 1 NZLR 16, 25 (CA). On the other hand, the English Court of Appeal has held that the mental characteristics of the defendant are relevant to both the gravity of the provocation and the hypothetical reasonable person's loss of self-control see R v Smith (Morgan) [1999] QB 1079 (CA).

[115] Gerald Orchard Culpable Homicide, in AP Simester and Warren J Brookbanks, Principles of Criminal Law (Brookers, Wellington, 1998) 471, n 234. See also Unrestrained Killings and the Law, above n 6, 56_63 for a discussion of the problems caused by a mixed objective/subjective "ordinary person".

[116] Adams, above n 47, para CA169.06B (updated 5 February 2000).

[117] R v McGregor, above n 106, 1078_1079.

[118] R v Ahluwalia [1992] 4 All ER 889 (CA).

[119] In R v Ross (16 July 1992) unreported, Court of Appeal, CA 76/92, 4, the Court of Appeal said "the provocation was not so much the abuse from the deceased when she realised her "wiles" no longer were effective but rather the prolonged build-up of exploitation of a vulnerable man". In R v Pita (1989) 4 CRNZ 660, 665_666 (CA), Bisson J, stated "we find it difficult to exclude provocation in such a setting of a close human relationship in which there can be a build up, over a period, of emotions and a further incident can cause feelings of both parties to run high and trigger a loss of self control". In R v Osland (1998) 159 ALR 170, 185 (HC), the Australian High Court accepted the "last straw" argument with regard to cumulative provocation. The English Court of Appeal has recently held that the whole history of a violent relationship was relevant in assessing the provocation and whether it actually caused a loss of self-control on the part of the defendant: R v Humphries [1995] 4 All ER 1008 (CA); R v Thornton (No 2) [1996] 1 WLR 1174, 1030 (CA). In Luc Thiet Thuan v R [1997] AC 131, 147 (PC: Hong Kong), a case that did not involve domestic violence, the Privy Council commented that a relatively unprovocative act could be provocative if it was the last in a series of acts that finally provoked the loss of self-control by the defendant. However, the court declined to comment on the application of its remark to battered woman cases. In the New South Wales Court of Criminal Appeal case of Muy Ky Chhay (1994) 72 A Crim R 1, 13_14, the Court held that, while loss of self-control at the time of the killing was essential, there was no requirement that the killing immediately follow upon the provocative act and that the loss of self-control can develop after a lengthy period of abuse, and without the need for a specific triggering incident.

[120] R v Taaka [1982] 2 NZLR 198, 201_202 (CA).

[121] Provocation and Responsibility, above n 6, 190_191. Horder did not conduct a research study but based this claim on his extensive reading of the cases.

[122] Provocation and Responsibility, above n 6, 190_191.

[123] See R Emerson Dobash and Russell Dobash Violence Against Wives (Open Books, London, 1980) 108_109; Elaine Hilberman and Kit Munson "Sixty Battered Women" (1977) 2 Victimology 460, 462; Jan E Stets Domestic Violence and Control (Springer-Verlag, New York, 1988) 107_109; Tarrant, above n 50, 588-589, 593.

[124] See the cases cited in Martin Wasik "Cumulative Provocation and Domestic Killing" [1982] Crim LR 29; Jeremy Horder "Sex, Violence, and Sentencing in Provocation Cases" [1989] Crim LR 546; and Susan Edwards, "Battered Women Who Kill" (1990) 140 NLJ 1380.

[125] Although we consider "expert evidence on domestic violence" to be a more correct description (see paras 25_27), we have used the term "BWS" where that term is used by a court or commentator.

[126] R v Oakes, above n 55, 676.

[127] R v Thornton (No 2), above n 119, 1182_1183.

[128] R v Osland (1998), above n 119, 185.

[129] R v Tepu, above n 61.

[130] See the cases referred to in Elisabeth McDonald "Provocation, Sexuality and the Actions of `Thoroughly Decent Men'" (1993) 9 Women's Studies Journal 126 ["Provocation, Sexuality and the Actions of `Thoroughly Decent Men'"].

[131] Minnitt The Evening Post, Wellington, New Zealand, 5 August 1980, 34.

[132] Provocation and Responsibility, above n 6, 192.

[133] Model Criminal Code, above n 85, 105; Attorney-General's Department Review of Commonwealth Criminal Law: Principles of Criminal Responsibility and Other Matters (AGPS, Canberra, 1990) para 13.56; The Canadian Law Reform Commission's proposed criminal code does not provide for a provocation defence _ see Law Reform Commission of Canada Recodifying Criminal Law: R31 (Ottawa, 1987).

[134] New Zealand Criminal Law Reform Committee Report on Culpable Homicide (Wellington, 1976). The members of the committee were Mr RC Savage QC (Chairman), Associate Professor BJ Brown, Professor ID Campbell, Mr WV Gazley, Inspector R McLennan, Mr PGS Penlington, Mr KL Sandford, Mr PB Temm QC, Mr DAS Ward, Ms PM Webb, Mr JC Pike (Secretary).

[135] For example, the defendant in R v Albury-Thomson (31 July 1998) unreported, High Court, Palmerston North Registry, T37/97, who killed her autistic 17-year-old daughter, the defendant in R v Novis (5 February 1988), unreported, High Court, Hamilton Registry, T 42/87, who shot his terminally ill father, and the defendant in R v Stead (1991) 7 CRNZ 291 (CA) who killed his mentally ill mother.

[136] Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee (Wellington, 1991) 45_46.

[137] R v Rongonui, (13 April 2000) unreported, Court of Appeal, CA 124/99.

[138] Richardson P, Blanchard and Tipping JJ.

[139] R v Rongonui, above n 137, 87.

[140] R v Rongonui, above n 137, 47.

[141] Homicide Act 1957 (UK), s 2.

[142] Crimes Act 1990 (NSW), s 23A.

[143] Crimes Act 1990 (ACT), s 14.

[144] Criminal Code 1961 (QLD), s 304A.

[145] Criminal Code (NT), s 37.

[146] Exception 7 to s 300 of the Penal Code (Singapore). A conviction for murder carries a mandatory death penalty in Singapore.

[147] Bahama Islands (Special Defences) Act 1959, s 2.

[148] Offences Against the Person Amendment Act 1973 (Barbados), s 3.

[149] Homicide Ordinance (Cap 339) (Hong Kong Special Administrative Region of the PRC), s 3.

[150] Susan Hayes "Diminished Responsibility: The Expert Witness' Viewpoint" in Yeo (ed) Partial Excuses to Murder (Federation Press, Sydney, 1990) 145, 146.

[151] R v Hobson [1997] Crim LR 759 (CA).

[152] R v Gordon (1993) 10 CRNZ 430, 441 (CA), per Hardie Boys J.

[153] Judith Ablett Kerr "A Licence to Kill or an Overdue Reform?: The Case of Diminished Responsibility" (1997) 9 Otago LR 1 ["A Licence to Kill or an Overdue Reform?"].

[154] HM Advocate v Dingwall (1867) 5 Irvine 466.

[155] With both the defence of insanity and the partial defence of diminished responsibility, the burden of proof is on the defendant, on the balance of probabilities.

[156] R v Byrne [1960] 2 QB 396, 403 (CCA).

[157] New South Wales Law Reform Commission Provocation, Diminished Responsibility and Infanticide: DP 31 (Sydney, 1993) para 4.11 [NSWLRC DP 31].

[158] Susanne Dell Murder into Manslaughter (Oxford University Press, Oxford, 1984) 33.

[159] Dell, above n 158, 33.

[160] Dell, above n 158, 35.

[161] Dell, above n 158, 35.

[162] Law Reform Commission of Victoria Mental Malfunction and Criminal Responsibility: R 34 (Melbourne, 1990) para 142.

[163] New South Wales Law Reform Commission Partial Defences to Murder: Diminished Responsibility: R 82 (Sydney, 1997) paras 3.34_3.35, 3.49 [NSWLRC R 82].

[164] R v Byrne, above n 156, 403.

[165] Dell, above n 158, 39.

[166] NSWLRC R 82, above n 163, para 3.39.

[167] Dell, above n 158, 29.

[168] Dell, above n 158, 29.

[169] Model Criminal Code, above n 85, 121.

[170] Butler Committee Report of the Committee on Mentally Abnormal Offenders (HMSO, London, 1975) Cmnd 6244, para 19.14.

[171] Butler Committee, above n 170, para 19.17.

[172] Butler Committee, above n 170, para 19.17.

[173] Criminal Law Revision Committee, above n 81, para 93.

[174] Law Commission (England and Wales), above n 82, s 56(1) A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he is suffering from such mental abnormality as is a substantial enough reason to reduce his offence to manslaughter. (2) In this section "mental abnormality" means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind, except intoxication. (3) Where a person suffering from mental abnormality is also intoxicated, this section applies only where it would apply if he were not intoxicated.

[175] NSWLRC R 82, above n 163, para 3.11.

[176] NSWLRC R 82, above n 163, viii.

[177] NSWLRC R 82, above n 163, para 3.50.

[178] NSWLRC R 82, above n 163, para 3.50.

[179] NSWLRC R 82, above n 163, para 3.51.

[180] R v Byrne, above n 156.

[181] NSWLRC R 82, above n 163, para 3.54.

[182] NSWLRC R 82, above n 163, para 3.54.

[183] NSWLRC R 82, above n 163, para 3.54.

[184] Although, to some extent, provocation has taken on the role of a diminished responsibility defence; R v McCarthy, above n 111, 558.

[185] Crimes Bill 1960, clause 187(2).

[186] (3 October 1961) 328 NZPD 2680.

[187] Crimes Consultative Committee, above n 136, 48_49.

[188] Crimes Consultative Committee, above n 136, 49.

[189] Arguably, if New Zealand were to introduce a diminished responsibility defence, there would be no need for the infanticide provision found in s 178 of the Crimes Act 1961. However, the Crimes Consultative Committee did not favour abolition of s178, even if a diminished responsibility defence was to be introduced. This was because abolition would significantly increase the maximum penalty for this class of offender. Since infanticide is an offence as well as (effectively) a partial defence, it would also remove a choice that is now available to the prosecution.

[190] The Canadian Law Reform Commission thought that this point could be met by procedural reforms.

[191] The practice was approved by the Court of Appeal in R v Cox (1968) 52 Cr Ap R 130 (CA).

[192] RD MacKay Mental Condition Defences in the Criminal Law (Clarendon Press, Oxford, 1995) 181.

[193] NSWLRC R 82, above n 163, para 3.11. However, note Dell's finding that in 80 per cent of cases a plea of guilty to diminished responsibility manslaughter is accepted by the trial judge. Therefore, there would only be a jury trial in 20 per cent of cases. A significant number of New South Wales cases are also decided on a guilty plea or are tried by a judge alone: G Griffith and H Figgis Crimes Amendment (Diminished Responsibility) Bill 1997: Commentary and Background (New South Wales Parliamentary Library Research Service, 1997) 10 in Fran Wright "Does New Zealand Need a Diminished Responsibility Defence?" (1998) 2 Yearbook New Zealand Jurisprudence 109, 114 ["Does New Zealand Need A Diminished Responsibility Defence?"].

[194] "Does New Zealand Need a Diminished Responsibility Defence?", above n 193, 120.

[195] E Griew "The Future of Diminished Responsibility" [1988] Crim LR 75, 78.

[196] "Does New Zealand Need a Diminished Responsibility Defence?", above n 193, 121.

[197] Model Criminal Code, above n 85, 123.

[198] Dell, above n 158, 11. No motive was recorded for psychotic offenders because of the difficulties of attributing motives to the psychotic.

[199] See, for example, the Veen cases in Australia: Veen (No 1) (1979) 143 CLR 458; Veen (No 2) (1988) 164 CLR 465.

[200] "Does New Zealand Need a Diminished Responsibility Defence?", above n 193, 123_126; Susan Edwards "Battered Woman Syndrome" (1992) 142 NLJ 1350; Donald Nicolson and Rohit Sanghvi "Battered Women and Provocation: The Implications of R v Ahluwalia" (1993) Crim LR 728.

[201] "Does New Zealand Need a Diminished Responsibility Defence?", above n 193, 123_126;

Zoe Rathus Rougher than Usual Handling: Women and the Criminal Justice System (Women's Legal Service, Brisbane, 1995) 102.

[202] However, note that PTSD was one of the four most commonly diagnosed conditions giving rise to the defence of diminished responsibility in a study of the defence in New South Wales between 1993 and 1994: "A Licence to Kill or an Overdue Reform?", above n 153, 9.

[203] "A Licence to Kill or an Overdue Reform?", above n 153.

[204] R v Gordon, above n 152, 441.

[205] R v Hobson, above n 151.

[206] Defined as a mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind, except intoxication.

[207] This is subject to the proviso that a member of the Parole Board may bring a case before it and may direct that the offender be released before the expiration of this period under s 97(5) and s 97(9) of the Criminal Justice Act 1985.

[208] Infanticide may operate to reduce a charge of murder or manslaughter to infanticide, as well as forming a stand alone charge.

[209] Attorney-General's Department, above n 133, para 13.56; Model Criminal Code, above n 85, 65; Butler Committee, above n 170, paras 19.14_19.16; Advisory Council on the Penal System, Sentences of Imprisonment: A Review of Maximum Penalties (HMSO, London, 1978) para 256; House of Lords Select Committee on Murder and Life Imprisonment, above n 83, para 118. Several Australian state law reform bodies have also recommended discretionary sentencing for murder and four states have introduced it.

[210] New Zealand Criminal Law Reform Committee, above n 134, para 2.

[211] Crimes Consultative Committee, above n 136.

[212] Crimes Consultative Committee, above n 136, 44. Other law reform agencies have also recommended a sentencing discretion for murder and the abolition of all partial defences. For example, the Model Criminal Code, above n 85, recommended abolition of all partial defences and the introduction of discretionary sentencing; the Law Reform Commission of Canada proposed law of homicide contained no partial defences and had discretionary sentencing for first degree murder: Law Reform Commission of Canada Homicide: WP33 (Ottawa, 1984) [Homicide WP33].

[213] The Law Reform Commission of Victoria's Prosecutions Study suggests that the change in that jurisdiction in the penalty for murder from a mandatory to a discretionary penalty may have influenced some offenders to plead guilty. However, the number involved in the study was small: Law Reform Commission of Victoria Homicide: R40 (Melbourne, 1991) para 286 [Homicide R40]. When the general discretion replaced the limited discretion in New South Wales, guilty pleas increased substantially: Judicial Commission of New South Wales Sentenced Homicides in New South Wales 1990_1993 (Sydney, 1995) 87.

[214] Criminal Law Revision Committee, above n 81, para 44.

[215] Criminal Law Revision Committee, above n 81, paras 44, 51, 52.

[216] The Law Reform Commission of Victoria reviewed all cases of murder in that jurisdiction between June 1986 (when the mandatory penalty was removed) and February 1991. It found that of 92 people convicted of murder, nine received life sentences and 83 received fixed terms. Nevertheless, the average actual prison term served under the new system was longer than under the mandatory life system: 14.7 years (before even being eligible for release) compared with 13.7 years (before actually being released), Homicide R40, above n 213, para 218. In New South Wales, prior to the abolition of the death penalty in 1955, most death sentences were commuted to either life imprisonment or to a fixed term. Between 1940 and 1974, the 156 prisoners whose death sentence had been commuted in this way served an average of 13 years and seven months: Arie Freiberg and David Biles The Meaning of Life: a Study of Life Sentences in Australia (AIC, Canberra, 1975) 53_54. A study by the Judicial Commission of New South Wales found that of a study of 36 murderers convicted under the limited discretionary sentencing regime, 29 received the mandatory life sentence and seven, for whom mitigating circumstances were found, received a minimum sentence ranging from eight to 12 years, with full terms ranging from 10 to 16 years. Under the full discretionary regime, six of 93 offenders received sentences of "natural life" and the typical sentence for the remaining 87 was a minimum of 12 years and an additional term of six years: Judicial Commission of New South Wales, above n 213, 74_76.

[217] House of Lords Select Committee on Murder and Life Imprisonment, above n 83, para 83.

[218] Criminal Law Revision Committee, above n 81, para 76.

[219] There is no mandatory sentence for murder in Victoria (Crimes Act 1958 (Vic) s3), Tasmania (Criminal Code (Tas) s 158), NSW (Crimes Act 1990 (NSW) ss 19A(3), 442) or ACT (Crimes Act 1900 (ACT) ss 12(2), 442). The New South Wales reform was prompted by a recommendation from the Task Force on Domestic Violence that the law of homicide be amended so as to ameliorate the position of a woman who killed following a history of domestic violence against her.

[220] All the state jurisdictions have a provocation defence; New South Wales and the Australian Capital Territory, have a diminished responsibility defence; New South Wales, Victoria, and Tasmania have an infanticide defence.

[221] NSWLRC DP 31, above n 157, para 2.34. The Law Reform Commission of Canada suggested that new rules of procedure and evidence could be implemented to meet this problem (Homicide WP33, above n 212, 74).

[222] NWSLRC DP 31, above n 157, para 2.17.

[223] Crimes Consultative Committee, above n 136, 49.

[224] NSWLRC DP 31, above n 157, para 2.18.

[225] At sentencing, the offender may assert mitigating facts by way of submissions by counsel. If the defence alleges a mitigating fact that is not beyond the bounds of reasonable possibility, the burden of proof lies on the Crown. Either party may call evidence to support its version of the disputed fact. However, if there has been a trial the judge will usually be able to resolve any disputed fact by reference to evidence given at the trial.

[226] These amendments remove the clauses relating to jury recommendations and statements, statements by the family of the victim and attendance at Parole Board proceedings by a victim's representative. They also offer three options for defining the different degrees of murder.

[227] Justice and Law Reform Committee "Interim Report on the Degrees of Murder Bill" [1999] AJHR I8B.

[228] JC Smith and Brian Hogan Criminal Law (7th ed, Butterworths, London, 1992) 232.

[229] Smith and Hogan, above n 228, 232.

[230] Discussions of the rationale for duress by threats and duress by circumstances are treated as interchangeable.

[231] R v Steane [1947] KB 997 (CCA); R v Bourne (1952) 36 Cr App R 125 (CCA).

[232] R v Howe [1987] AC 417, 428 (HL) per Lord Hailsham.

[233] Aristotle The Nicomachean Ethics (Rees Translation) 49, cited in Perka v R (1985) 14 CCC (3d) 385, 398 (SCC).

[234] Smith and Hogan, above n 228, 245. An example of a defence based on such a concept of necessity is found in the American Model Penal Code s 3.02:

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offence charged; and

(b) neither the Code nor other law defining the offence provides exceptions or defences dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

[235] Smith and Hogan, above n 228, 237_238.

[236] Smith and Hogan, above n 228, 238.

[237] Smith and Hogan, above n 228, 238.

[238] R v Hudson and Taylor [1971] 2 QB 202 (CA).

[239] R v Howe, above n 232.

[240] R v Martin [1989] 1 All ER 652, 653 (CA).

[241] R v Fitzpatrick [1977] NI 20 (CCA); R v Shepherd (1988) 86 Cr App R 47 (CA); R v Sharp [1987] QB 853 (CA).

[242] R v Hudson and Taylor, above n 238, 206.

[243] R v Howe, above n 232, 429.

[244] Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, 692 (HL).

[245] R v Witika [1993] 2 NZLR 424 (CA).

[246] R v Maurirere (2 March 2000) unreported, Court of Appeal, CA461/99, 5.

[247] R v Teichelman [1981] 2 NZLR 64, 66_67 (CA).

[248] R v Raroa [1987] 2 NZLR 486, 493 (CA). The requirement that the threat be associated with a particular demand was not necessary for deciding the case and so is only obiter dictum.

[249] Runjanjic and Kontinnen (1991) 56 SASR 114 (SC). Although the appeal in this case concerned the admissibility of expert evidence related to "BWS", the evidence was offered as relevant to the defence of duress.

[250] Adams points out that, although the Court of Appeal appears to suggest in Raroa that a genuine and reasonable but mistaken belief in the existence of a threat will not suffice, this was unnecessary to decide the case: Adams, above n 47, CA24.05 (updated 30 May 1996).

[251] Gerald Orchard "The Defence of Compulsion" (1980) 9 NZULR 105, 113 ["The Defence of Compulsion"].

[252] This would be consistent with the defence of necessity _ see para 186.

[253] R v Hurley [1967] VR 526, 543 (SC) per Smith J dissenting.

[254] R v Witika, above n 245, 436.

[255] R v Witika, above n 245, 435_436 (as cited by the Court of Appeal).

[256] R v Witika, above n 245, 436.

[257] R v Richards (15 October 1998) unreported, Court of Appeal, CA 272/98.

[258] R v Richards, above n 257, 2.

[259] As to the use of the term "BWS", see n 125.

[260] R v Joyce [1968] NZLR 1070, 1077_1078 (CA).

[261] Ruka v Department of Social Welfare, above n 37, 171.

[262] See, for example, R v Raroa, above n 248.

[263] Crimes Consultative Committee, above n 136, 21.

[264] See, for example, "The Defence of Compulsion", above n 251, 108.

[265] Crimes of Torture Act 1989.

[266] However, there are a number of statutory provisions that make necessity a defence to specific offences. Section 187A(3) of the Crimes Act 1961, for example, provides a defence to the offence of procuring a miscarriage under section 183 and 187A "where it is necessary to save the life of the woman or girl". Section 3(2) of the Trespass Act 1980 provides a necessity defence to the offence created in section 3(1) of trespassing and failing to leave after being warned by the occupier. Section 117(2) of the Hazardous Substances and New Organisms Act 1996 provides a necessity defence to certain offences created by that Act.

[267] R v Woolnough [1977] 2 NZLR 508, 516 (CA).

[268] In every case it will be a matter of statutory construction of the legislation creating the offence to determine whether there is any room for the application of necessity as a defence in that class of offence: Tifaga v Department of Labour [1980] 2 NZLR 235, 243 (CA) per Richardson J.

[269] AP Simester and Warren J Brookbanks Principles of Criminal Law (Brookers, Wellington, 1998) 355_358.

[270] Kapi v Ministry of Transport (1992) 8 CRNZ 49 (CA).

[271] Kapi v Ministry of Transport, above n 270, 54_55.

[272] R v Lamont (27 April 1992) unreported, Court of Appeal, CA 442/91.

[273] R v Lamont, above n 272, 6.

[274] R v Atofia [1997] DCR 1053.

[275] R v Atofia, above n 274, 1057.

[276] As to the use of the term "BWS", see n 125.

[277] R v Atofia (15 December 1997) unreported, Court of Appeal, CA 53/9, CA 455/97.

[278] NZ Police v Anthoni [1997] DCR 1035.

[279] NZ Police v Kawiti (28 July 1999) unreported, High Court, Whangarei Registry, AP 29/99.

[280] NZ Police v Kawiti, above n 279, 8.

[281] This ratio may be limited by the fact that the Judge was answering a specific question: "Whether in a criminal prosecution pursuant to the Transport Act 1962 the defence of necessity is available to a defendant".

[282] NZ Police v Kawiti, above n 279, 10. The Judge also noted that Simester and Brookbanks had synthesised the New Zealand case law on necessity with such English case law as is consistent and had made the following observations about the operation of the defence of necessity in

New Zealand:

1 The perceived threat must be one of imminent death or serious injury.

2 The defendant's perception must be either correct or reasonably based.

3 Defendant's action must be in response to that perceived threat.

4 Defendant's response to the threat must be proportionate in the sense that a sober person of reasonable firmness sharing certain characteristics of the defendant, would have responded in like manner. (The qualifying characteristics remain to be determined in New Zealand.)

5 The defence is not available to murder or attempted murder.

6 The defence is not available whenever the source of the threat is another person (such cases being covered by s 24). Simester and Brookbanks, above n 269, 377, cited in NZ Police v Kawiti, above n 279, 9.

[283] Kapi v Ministry of Transport, above n 270, 57. When Kawiti returned to the District Court, Judge Everitt found that the defendant had a defence of necessity based on the elements set out in Kapi: NZ Police v Kawiti (4 November 1999) unreported, District Court, Kaikohe, CRN 8027003705, 8027008070_1.

[284] London Borough of Southwark v Williams [1971] 2 All ER 175, 181 (CA), cited in Kapi v Ministry of Transport, above n 270, 55.

[285] R v Conway [1989] QB 290, 298 (CA); Perka v R (1985) 14 CCC (3d) 385, 406 (SC); R v Loughnan [1981] VR 443, 448 (SC).

[286] R v Lalonde (1995) 22 OR (3d) 275.

[287] The Canadian defence of necessity has different requirements to those set out in Kapi. For example, there is no requirement that the peril be death or serious bodily harm. Dickson J, in Perka v R, above n 285, 405_406, summarises a number of conclusions as to the Canadian defence of necessity in terms of its nature, basis and limitations:

1 the defence of necessity could be conceptualised as either a justification or an excuse;

2 it should be recognised in Canada as an excuse, operating by virtue of s 7(3) of the Criminal Code [similar to s 20 of the Crimes Act 1961 of NZ];

3 necessity as an excuse implies no vindication of the deeds of the actor;

4 the criterion is the moral involuntariness of the wrongful action;

5 this involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to pressure;

6 negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity;

7 actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle;

8 the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;

9 the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril;

10 where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

[288] R v Lalonde, above n, 286.

[289] Perka v R, above n 285, 400_401.

[290] Perka v R, above n 285, 403.

[291] This is true for both the common law defence and s 24 of the Crimes Act 1961.

[292] R v Howe, above n 232; R v Dudley and Stephens (1884) 14 QBD 273.

[293] Criminal Code (Qld) s 25, Criminal Code (WA) s 25.

[294] This defence was broadly based on cl 46 of the English Law Commission's Criminal Code and on s 3.02 of the Model Penal Code (USA).

[295] New Zealand Law Commission Succession Law: Homicidal Heirs: NZLC R38, (Wellington, 1997).

[296] New Zealand Law Commission, above n 295, para 1.

[297] Draft Succession (Homicide) Act s 6.

[298] A supplementary order paper to the Matrimonial Property Amendment Bill (SOP 25) is currently under consideration by the Justice and Electoral Select Committee. The supplementary order paper would extend the application of the Matrimonial Property Act 1976 and the changes in the Matrimonial Property Amendment Bill to de facto heterosexual and same sex relationships. The committee is due to report back by 4 Septem


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