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«Self-defence as a ground of justification in cases of battered women who kill their abusive partners CANDIDATE’S DECLARATION: I declare that ...»

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7.4.4.3 The Nature of the Expert Evidence that Will Be Admitted in Cases of Domestic Violence Craven notes that prior to Runjanjic and Kontinnen, in which the South Australian Court of Criminal Appeal admitted expert evidence of the battered woman syndrome for the first time, women who committed offences in the context of a violent relationship were very limited to the nature of evidence that they could adduce at their trials. 197 According to the traditional rules, the only evidence that the expert could raise was in respect of ‘facts of relevance, not contextual factors.’198 Craven notes thus that for battered women who sought to rely on self-defence, it was not possible for the expert to raise issues regarding the circumstances of the accused which would challenge the traditional stereotypes of battered women who kill self-defence or explain why simply leaving the abuser was not an option. 199 In Runjanjic and Kontinnen, at the trial, the defence sought to introduce the evidence of a clinical forensic psychologist of twenty years experience on the subject of the battered woman syndrome. The trial court refused the application on the grounds that the test for duress was ‘objective and that expert evidence on the state of mind of the appellants was therefore irrelevant.’ 200 On appeal, King

CJ rejected the argument noting:

I do no think it is a sound basis for excluding the evidence. In the first place it ignores the subjective aspect of the test. Even if the evidence had no bearing on the objective aspect, it would be relevant to the question whether the wills of these appellants were in fact overborne. 201 Z Craven ‘Battered Woman Syndrome’ 2003 Australian Domestic & Family Violence Clearinghouse 1, at 5.

Ibid.

Ibid.

Runjanjic and Kontinnen above n183 at 120.

Ibid. In his judgment, King CJ stated unequivocally that whilst the evidence may have been admitted in support of duress, it would be equally relevant to provocation and self-defence: at 122.

He stated, ‘I can see no distinction in principle between the admission of expert evidence of the battered woman syndrome on the issues of self-defence and provocation and on the issue of duress.’: at 122.

Further King CJ held that the evidence presented by the expert was not intended to explain the particular responses of the appellants but rather to provide an indication of what would be expected of women generally, ‘that is to say, women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were.’ 202 The approach adopted by the Appeal Court was thus that the test would remain objective but that the expert would provide a general understanding of the lived reality of women living with violence.

Specifically setting the parameters for admissibility of the expert’s evidence, the court referred to Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 in which King CJ held:

[B]efore opinion evidence may be given upon the characteristics, responses or behaviour of any special category of persons, it must be shown that they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received. Evidence of his opinion must be confined to matters which are the subject of his special study or knowledge. Beyond that his evidence may not lawfully go. 203 Craven emphasises that the expert’s role is never to proffer an opinion on the guilt or innocence of the accused but rather to assist a jury understand the social environment in which domestic violence occurs. 204 In Runjanjic and Kontinnen specific consideration was given to the question whether the admissibility of expert evidence on battered woman syndrome could be regarded as prejudicial for effectively putting the victim of the accused on trial as a batterer. The argument for this hypothesis was that it deflects the attention of the jury from the unlawful conduct of the accused. 205 In unambiguously settling

the issue, Legoe J quoted from an article by Bauman who noted:

Runjanjic and Kontinnen above n183 at 120.

Transport Publishing Co. Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119.

Above n197 at 7.

Runjanjic and Kontinnen above n183 at 125.

… the probative value of [expert] testimony clearly outweighs the prejudicial impact. Testimony concerning the defendant’s identity as a battered wife, if established, may have a substantial bearing on her perception and behaviour at the time of the killing. … If a defendant is not allowed to present expert testimony on the battered wife syndrome, she is denied the right to put on evidence in support of a claim of selfdefence. The right of an accused to put on a defence is so fundamental that it must tip the scales in favour of the probative value of the proffered testimony over its potentially prejudicial impact. 206 In Osland, in detailing the nature of the evidence that could be presented by the expert, the court held that the expert could testify to issues relevant to questions

such as:

1. why a person subjected to prolonged and repeated abuse would remain in such a relationship;

2. the nature and extent of the violence that may exist in such a relationship before producing a response;





3. the accused’s ability, in such a relationship, to perceive danger from the abuser; 207 and

4. whether, in the evidence, the particular accused believed on reasonable grounds that there was no other way to preserve herself or himself from death or grievous bodily harm than by resorting to the conduct giving rise to the charge. 208 The trial court in Osland thus allowed the expert to testify to the characteristic patterns of behaviour of women in abusive relationships, and the characteristic reactions on the part of women in those relationships. In casu, the accused also MA Baumann ‘Expert Testimony on the Battered Wife Syndrome’ 1983 27 St Louis University Law Journal 407, at 434. See also above n183 at 125 where Legoe J noted, ‘I think this [issue] well answered, and answered well for South Australia, by an article by Baumann.’ See also Osland where the court found that BWS evidence might assist the court understand the battered woman’s heightened awareness of danger and explain why she believed she was at risk of grave bodily harm and that her actions were necessary to avoid that danger.: above n50 at 185.

Above n50 at 217-8.

testified in person. After the expert for the defence had had sight of the record of her evidence-in-chief and been present in court when the accused was crossexamined, the expert testified further in general terms about the typical features of battered woman syndrome and gave case specific evidence linking the accused’s own testimony to the general patterns of behaviour. 209 Bradfield recognises the role of the expert witness in cases of self-defence and domestic violence. However, she notes a concern that the courts have focussed on battered woman syndrome as the signature marker of all victims of intimate violence and the evidence of the expert is, accordingly, particularly directed at assisting the court understand BWS. Yet, she notes, ‘[i]n relation to self-defence, evidence of the history of the accused’s relationship with her violent partner is relevant and admissible and, by relying on battered woman syndrome, there is a ‘failure to elicit at trial the experience and effects of living a life of being abused.’’ 210 7.4.4.4 The Qualifications of the Expert in Domestic Violence Cases With specific reference to the qualification of an expert, Brennan J in Murphy

summarised the general law as follows:

The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it. His fitness, then, is a fitness to answer on that point. He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand …. 211 With particular reference to cases involving domestic violence, Stubbs and Tolmie state that given that battered woman syndrome is treated as a pathology Above n50 at 219.

Bradfield above n183 at 178.

Murphy above n180 at 12.

by medical science, 212 it necessarily focuses on the mind of the accused.

Accordingly, the purpose of admitting expert testimony is to assist the court understand a woman’s perceptions and actions in situations of intimate violence and be relevant to the understanding of the woman’s state of mind, at the time the crime was committed. 213 Thus, notes Craven, the expert evidence of BWS is presented in a clinical light by either a psychiatrist or a psychologist and the social aspects of her lived reality are not emphasised. 214

7.5 CONCLUSION

The law of self-defence in Australia is a combination of subjective factors (that is, what the accused believed at the time of the killing) and objective assessments (that is, whether the belief was based on reasonable grounds and specifically in South Australia and Tasmania, whether the amount of force used was reasonable). The individual elements of the defence have been specifically interpreted by the case law in each of the states and territories.

See Chapter 3 and the discussion on battered woman syndrome and its specific inclusion of BWS in the Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R and DSM-IV (published by the American Psychiatric Association, Washington: 1987).

Above n69 at 716. See also above n197 at 7.

Above n197 at 7. See also Bradfield above n183 at 180. In Osland, referring to the reliance of the accused upon battered woman syndrome, Kirby J sent out a further specific caution regarding the constraints linked to using the battered woman syndrome. Referring to the dictum of Thomas J in Ruka v Department of

Social Development he noted:

There is a danger that in being too closely defined, the syndrome will come to be too rigidly applied by the Courts. Moreover, few aspects of any discipline remain static, and further research and experience may well lead to developments and changed or new perceptions in relation to the battering relationship and its effects on the mind and will of women in such relationships.: Above n50 at 214. See also Ruka v Department of Social Welfare [1997] 1 NZLR 154 at 173.

Similarly, Bradfield notes that if the focus were on the personal experience of the abused (as opposed to BWS) this would widen the pool of potential experts to include inter alia doctors, nurses, social workers, as well as family members who may have witnessed the violence or saw the consequences.: Bradfield above n183 at 178. Bradfield also notes that testimony of the latter group of persons will not infringe the rules of evidence ‘as the trend of recent authority suggests that expertise can be gained from experience [rather than a course of study].: at 191.

The writer notes the intention of the court not to be limited to the battered woman syndrome as the character marker for all battered women. However, in Osland the court acknowledged that as it was the appellant who had specifically raised battered woman syndrome in the first instance, it was ‘now too late in the case to adopt any change of course.’: above n50 at 214.

The courts in Australia appear to have followed a robust approach when dealing with the requirements of self-defence. 215 This approach is especially noteworthy with regard to the element of temporal proximity, especially in cases involving family violence and homicide. Similarly, in evaluating the elements of reasonableness and necessity, the courts have been forceful in acknowledging the circumstances of the accused as being directly relevant to such an assessment, with Victoria taking a bold step of making specific provision for victims of family violence. 216 The courts have, however, always left the issue of the weight and relevance of the factors presented to the jury to decide.

From the limited reported case law involving domestic violence, it would appear that where the requirement of objective reasonableness is raised, the standard used remains that of the reasonable person, and no provision is made for the yardstick to be the reasonable battered woman or even the reasonable

woman. 217 Confirming this approach in Osland Kirby J commented:

As evidence of the neutrality of the law it should avoid, as far as possible, categories expressed in sex-specific or otherwise discriminatory terms.

… Such categories tend to reinforce stereotypes. They divert application from the fundamental problem which evokes a legal response to what is assumed to be the typical case. … However, unlike conception and

Specifically with regard to self-defence, as Bartal notes:

Traditionally, abused women were denied the opportunity of having selfdefence put before the jury. The main stumbling blocks were those of imminence, a duty to retreat, proportionality, and lawfulness of the threat.

In this regard, Bartal notes that the importance of the Zecevic decision is that these principles no longer have the status of legal principle but are only factors which are to be considered when deciding on whether the conduct was necessary and in the circumstances reasonable.: BF Bartal ‘Battered Wife Syndrome Evidence: The Australian Experience’ 1998 1 The British Criminology Conferences: Emerging Themes in Criminology – Selected Proceedings at www.britsoccrim.org/vol1/003.pdf 4 [accessed on 12 June 2008].

See above n4 at 66. See also Lock (1997) 91 A Crim R 356 which contains a stirring and explicit acknowledgement that a relationship of violence is a highly relevant context for the assessment of an accused’s claim to have acted in self-defence.

Above n50 at 183-4.



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