Defending Battered Defendants on Homicide Charges in New Zealand: The impact of abolishing the partial defences to murder

Stream: Questions of Justice in Cases of Gender-based Violence
Date: Wednesday, 11 February 2015
Time: 3.15 pm – 5.00 pm

Abstract

NSW has recently chosen to reform rather than abolish its provocation defence. Whilst the reforms were motivated by the need to ensure that batterers were not able to ameliorate the criminal consequences of using violence against women, a specific concern in choosing to reform rather than abolish the defence was the plight of battered defendants charged with the murder of their violent partners who, for various reasons, were not able to access the complete defence of self-defence. More recently, Victoria has chosen to resolve its concerns about the use of defensive homicide to justify violence against women by abolition rather than reform. These very different approaches make the New Zealand experience of interest. In 2009 New Zealand abolished its only formal partial defence to murder: provocation. Since then there have been several cases in which women charged with homicide in respect of their violent partner have been convicted of murder and have recieved significantly higher sentences than they might have expected had they been able to successfully raise provocation. On the other hand, recent sentencing decisions apparently reveal juries continuing to convict for manslaughter rather than murder on the basis of a lack of mens rea for murder, even in cases where sentencing judges might struggle to justify that decision on the facts. This paper analyses these decisions for what they reveal about the possible resolution of cases involving battered defendants in jurisdictions without any formal partial homicide defences.

Author

Julia Tolmie (Presenter), University of Auckland
Associate Professor Julia Tolmie teaches criminal law at the Faculty of Law at the University of Auckland. Prior to taking up her position at Auckland in 1999 she was at the Faculty of Law at the University of Sydney for ten years. She is currently the Chair of the New Zealand Family Violence Death Review Committee.

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