In Defence of the Battered Defendant : a New Zealand Perspective

Abstract

Recent cases demonstrate that New Zealand’s criminal justice system continues to fail to recognise the broader circumstances in which battered defendants use defensive force against their violent intimates. The fundamental framework of the criminal justice system demands that its players focus on a limited temporal inquiry and apply the legal construct of the “reasonable man”, thereby denying the function of coercive control and the intersection of battering with gender, race, ethnicity and class. Arising from and running parallel to these structural limitations are the doctrinal requirements of an imminent and specific threat and the exclusion of self-defence in the context of accidental force, resulting in a gendered application of the substantive law of self-defence. Case law from the comparable jurisdictions of Canada and Australia indicates that New Zealand takes a particularly punitive approach to battered defendants. This punitive approach is underscored by the repeal of provocation, the lack of any other partial or specialised defences, and an inflexible sentencing regime. Statutory reform in New Zealand is accordingly imperative to addressing the structural and doctrinal impediments to battered defendants’ equality before the law. The Australian jurisdictions of Victoria and Queensland provide some insight into what kind of statutory intervention is desirable. Of upmost importance is the introduction of legislation to overturn R v Wang and statutory guidance as to the wider circumstances that will be relevant when determining whether a battered defendant’s use of force was reasonable in the circumstances as she believed them to be. A partial defence would fill the gap in the law created by the repeal of provocation and would benefit battered defendants who are not able to make out self-defence but who are responding to extreme violence and abuse to the extent that a conviction for murder is problematic. Without some degree of statutory intervention battered defendants in New Zealand will continue to be denied equality before the law.