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Victims of Family Violence Who Commit Homicide

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Victims of Family Violence Who Commit Homicide EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 November 2015, Wellington, New Zealand | ISSUES PAPER 39 VICTIMS OF FAMILY VIOLENCE WHO COMMIT HOMICIDE EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 Contents Foreword ............................................................................................................................................... vi Acknowledgements .............................................................................................................................. vii Call for submissions ........................................................................................................................... viii Chapter 1 Setting the scene ............................................................................................................... 11 Introduction ....................................................................................................................................... 11 Background ....................................................................................................................................... 12 Scope of this review .......................................................................................................................... 13 The Commission’s approach ............................................................................................................. 15 Structure of this Issues Paper ............................................................................................................ 18 Chapter 2 Understanding family violence ....................................................................................... 19 Introduction ....................................................................................................................................... 19 Dynamics and terminology: “predominant aggressors” and “primary victims” ............................... 21 Relationship types and gender .......................................................................................................... 23 Gangs ................................................................................................................................................ 27 New Zealand-specific features of family violence ............................................................................ 27 Evolving understanding .................................................................................................................... 29 The nature of the violence ................................................................................................................. 30 Homicides by primary victims of family violence ............................................................................ 35 Chapter 3 The current law ................................................................................................................ 39 Introduction ....................................................................................................................................... 39 Self-defence ...................................................................................................................................... 39 Partial defences and sentencing ........................................................................................................ 43 The broader criminal legal system .................................................................................................... 44 Chapter 4 Previous work ................................................................................................................... 53 Introduction ....................................................................................................................................... 53 The 2001 Law Commission Report .................................................................................................. 53 The 2007 Law Commission Report .................................................................................................. 56 The Family Violence Death Review Committee Report .................................................................. 58 Law Commission Issues Paper Victims of family violence who commit homicide ii EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 Chapter 5 Problems with the current law – is there a need for reform? ...................................... 60 Problems relying on self-defence ...................................................................................................... 61 Recognising reduced culpability when self-defence does not apply ................................................. 67 Misunderstanding the dynamics of family violence ......................................................................... 73 Summary of issues ............................................................................................................................ 77 Chapter 6 Developments in other countries..................................................................................... 79 Introduction ....................................................................................................................................... 79 Self-defence in other countries .......................................................................................................... 80 Reform of self-defence in Australia .................................................................................................. 81 Reform of partial defences and separate homicide offences ............................................................. 89 Non-legislative reform ...................................................................................................................... 97 Chapter 7 Options for reform of self-defence .................................................................................. 98 Substantive reform of the law of self-defence .................................................................................. 98 Other legislative reforms to support self-defence ........................................................................... 102 Chapter 8 Partial defences and separate homicide offences ....................................................... 106 Introduction ..................................................................................................................................... 106 Arguments for and against partial defences and separate homicide offences ................................. 106 The options ...................................................................................................................................... 108 Partial defences ............................................................................................................................... 109 A separate homicide offence ........................................................................................................... 112 Summary ......................................................................................................................................... 114 Chapter 9 Other options for reform ............................................................................................... 117 Greater flexibility in murder sentencing ......................................................................................... 117 Improving the Prosecution Guidelines ............................................................................................ 118 Improving understanding of the dynamics of family violence........................................................ 120 Appendix A Terms of Reference ..................................................................................................... 122 Appendix B Summary of New Zealand cases since 2001 ............................................................. 124 Appendix C Homicide defences in other countries ....................................................................... 132 Appendix D Relevant legislative provisions in Victoria ................................................................ 141 Law Commission Issues Paper Victims of family violence who commit homicide iii EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 Law Commission Issues Paper Victims of family violence who commit homicide iv EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Honourable Sir Grant Hammond KNZM – President Judge Peter Boshier Dr Geoff McLay Honourable Dr Wayne Mapp QSO The General Manager of the Law Commission is Roland Daysh The office of the Law Commission is at Level 19, 171 Featherston Street, Wellington Postal address: PO Box 2590, Wellington 6140, New Zealand Document Exchange Number: sp 23534 Telephone: (04) 473-3453, Facsimile: (04) 471-0959 Email: [email protected] Internet: www.lawcom.govt.nz A catalogue record for this title is available from the National Library of New Zealand. ISBN: 978-1-877569-66-1 (Online) ISSN: 1177-7877 (Online) This title may be cited as NZLC IP39 This title is available on the Internet at the Law Commission’s website: www.lawcom.govt.nz Law Commission Issues Paper Victims of family violence who commit homicide v EMBARGOED UNTIL 11:00AM 11 NOVEMBER 2015 Foreword Family violence
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