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University of New South Wales Law Journal Student Series |
LOOKING AT THE INVISIBLE: WHEN BATTERED WOMEN ARE ACQUITTED BY SUCCESSFULLY RAISING SELF-DEFENCE
SUSIE KIM
I. INTRODUCTION
Homicide is a distinctly male offence. The majority of homicides in Australia are committed by men, against men. This has shaped the laws around homicide, including the laws around the defences to homicide, to the extent that these defences are not easily accessible to women who kill. Of the comparatively low number of women who commit homicide, the great majority kill their intimate partners, and this is in response to immediate or extended violence. It is legal to use reasonable force in self-defence, even where that force results in a fatality. However, self-defence, which is a complete defence to homicide, has a gendered history, and women who kill face significant difficulty convincing juries that their actions constitute self-defence. Academics and legal commentators have expressed that it is no longer the law but rather, prevailing community understandings and institutional attitudes toward domestic violence that continue to make self-defence relatively inaccessible to women. In its Final Report recommendations to the Victorian Parliament, the Victorian Law Reform Commission (VLRC) expressed concern that women were failing to successfully raise self-defence at trial, and referred to Bradfield’s study of 76 cases between 1998 – 2000 which found that 41.4% of women charged with homicide pleaded guilty to murder or manslaughter.[1] Sheehy, Stubbs and Tolmie’s research of 67 homicide cases between 2000 – 2010 specifically involving battered women defendants, found that 64% of battered women pleaded guilty and only 16% secured an acquittal.[2] Stubbs and Tolmie made the observation that for battered women defendants in Australia, even where self-defence would have been available, “pleading guilty to manslaughter...in exchange for the Prosecution agreeing to drop murder charges, has emerged as perhaps the most common defence strategy...”[3] It is problematic that battered women would elect to plead guilty to manslaughter, which carries a maximum penalty of 25 years’ imprisonment, rather than attempt to acquire an acquittal by raising self-defence. This bespeaks the substantial challenges women face trying to prove self-defence. In fact, little is known about the small number of cases that involve women who are able to secure acquittals by successfully raising self-defence. This is because acquittals are not reported, and researchers in this area must rely on the media’s selective reporting.[4] Acquittals are “truly invisible as, for several reasons, we know very little about the reasoning of judges and juries in those cases”, and especially because acquittals are rare.[5] In this research paper, I analyse two cases involving female defendants who are acquitted of homicide charges, against the background of the current debate on battered women and self-defence. The cases are R v Kasparian[6] and R v Chipreo.[7] They were chosen because they fit the topic criteria and because of practical reasons of access. I was able to obtain the transcripts for these two cases through my employment at the Supreme Court of New South Wales.[8] I note that the defendant in Kasparian is not a ‘battered woman’ in that there was no history of physical violence in her relationship. The case nevertheless provides insight into the current issues surrounding self-defence and battered women.
Part II of this research paper will examine the literature around battered women and self-defence. Part A will set out the background to the law of self-defence and the test of self-defence as it currently stands. In Part B, I will discuss some of the obstacles that women face in establishing self-defence. These include the traditional considerations of imminence, proportionality and the duty to retreat which continue to affect the assessment of reasonableness in self-defence. In the second part of Part B, I discuss Battered Woman Syndrome (BWS) evidence and the way it affects battered women trying to assert self-defence. In Part C, I refer to recent calls for a broader framework of evidence, to allow battered women to convey the full context within which they are acting. Part III contains an analysis of two cases in which female defendants were able to establish self-defence. The main purpose of the analysis is to determine what factors allowed each defendant to successfully raise self-defence. Finally, Part IV contains the conclusion.
II. CURRENT LITERATURE: BATTERED WOMEN AND SELF-DEFENCE
1 Gender and self-defence
Since the majority of homicides occur between men, the defence of self-defence reflects the typical homicide situation of a public fight between males. In Australia, of the 510 murders that were committed between 2008 and 2010, 538 (88%) of the offenders were male and only 71 (12%) female.[9] This is in line with historical trends where males have generally comprised over 80% of homicide offenders. This has meant that the traditional defences to homicide of provocation and self-defence have mainly regulated the conduct of men.[10] The standard of reasonableness in self-defence is a masculinist standard, which women, particularly battered women, find difficult to meet.[11] The VLRC remarked that “[i]n practice, self-defence is usually only useful to men.”[12] This is not surprising given that much of the law of self-defence was developed during a time when domestic violence against women was legally and socially tolerated.[13] With self-defence law so closely identified with spontaneous encounters, women who kill in response to partner violence, particularly in non-confrontational situations, may be denied the protection of the defence.[14]
2 Law of self-defence
The common law test of self-defence was stated in Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 (at 661):
“It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left with reasonable doubt about the matter, then he is entitled to an acquittal.”
The jury must assess firstly, whether the accused personally believed that their conduct was necessary to defend themselves and secondly, whether the accused’s conduct was a reasonable response in the circumstances as the accused perceived them. The first question requires an assessment of the subjective belief based on the personal characteristics and circumstances of the accused at the time. The second question is an objective assessment of the reasonableness of the accused’s response to the situation of danger as the accused saw it. Reasonableness must therefore be assessed, “giving proper weight to the predicament of the accused”.[15] The jury is not assessing the response of some reasonable person but the response of the accused.[16] Once raised, the onus is on the Prosecution to establish beyond reasonable doubt that the accused did not believe in the necessity of their actions, or that their actions were not reasonable.[17] The VLRC observed that the test is usually simple for the jury to apply, but that it is more complex where the defendant has killed in response to domestic violence.[18] Academics have noted that it is not the wording of the law, but rather its interpretation and application that has made it difficult for women to establish self-defence.[19]
B Obstacles for battered women in proving self-defence
The law of self-defence has developed according to male standards of behaviour, and an assessment of reasonableness continues to be influenced by traditional masculinist assumptions. In recognition of the fact that women were not being adequately accommodated by male standards of reasonableness, courts began accepting expert evidence of Battered Woman Syndrome (BWS). BWS evidence was introduced with the aim of informing juries about the state of mind of the ‘battered woman’ accused, to explain how her actions or inactions were perfectly reasonable in her circumstances of domestic violence. BWS evidence successfully counteracts some of the traditional obstacles contained in the law of self-defence, but it has also generated a set of myths and stereotypes around the construct of the ‘battered woman’. This has not affected those women who may fit the stereotype of the ‘good’ battered woman, typically weak and passive, but it has excluded women who do not meet this stereotype. While the use of expert evidence appears to have assisted battered women in their self-defence claims, the desirability and purpose of BWS evidence remains somewhat ambiguous in Australia.
1 Traditional male assumptions in self-defence
Until the High Court’s pronouncement in Zecevic, the law of self-defence was defined by imminence and proportionality, and contained a duty to retreat. Although no longer legal requirements, these concepts continue to influence the way juries and judges view the reasonableness of an accused’s actions. The traditional requirements were based on what was regarded as reasonable in the typical context of a public fight between males. As Bradfield stated in 1998, the traditional concepts “continue to be the yardstick against which the conduct of the battered woman is assessed by judges, juries and lawyers”,[20] and this remains the case, to a certain extent, today.
(a) Imminence
The requirement of imminence of danger or threat of danger is easily satisfied in the traditional confrontation situation, but it is not always apparent in a domestic violence context. As Bradfield and others have noted, while a high proportion of women who kill their intimate partners are responding to long term violence,[21] they usually do not respond to that violence in the middle of an attack from their partner.[22] Rather, a battered woman may act pre-emptively to protect herself or her children, she may arm herself in anticipation of another attack, or she may respond to the abuse during a lull in the violence.[23] The reality for battered women in ongoing violent relationships is that they may be in constant fear of attack from their partners. The VLRC, in addressing the proposition of whether battered women’s “fear of future violence...is irrational or unreasonable”, found that victim fear was in fact “the most reliable predictor of future domestic violence”.[24] Two studies cited in the VLRC report concluded that abused women are hyper-vigilant and well attuned to signs of impending violence from their partners.[25] They were found to be more likely to overestimate their safety than to exaggerate their fear.[26] However, because women may be seen as responding to an immediate attack “which is not, in isolation, life threatening”, the use of lethal force is often regarded as excessive by a jury that is ignorant of the realities of domestic violence.[27] The Victorian Department of Justice recently criticised the Crown’s attempt to defeat an accused’s claim for self-defence on the basis of lack of imminence.[28] The relevant case was R v MacDonald,[29] and involved an accused who hid in a tree and shot dead her husband who had subjected her to 17 years of violent and degrading assault. The Department of Justice said that the Crown’s attitude in this case “illustrate[d] the disconnect between the traditional legal interpretation of the law of self-defence and the realities of family violence”.[30]
(b) Proportionality
Women are also disadvantaged on the issue of proportionality, which requires a commensurate response to the threat of violence. In the traditional scene of a fight between two men of relatively equal strength, the use of a weapon against an unarmed person constituted a distinct lack of proportionality. However, battered women who kill almost always use a weapon.[31] In her study of 76 women who killed their spouses, Bradfield found that all had used a weapon.[32] Given that men are typically physically stronger than their female partners, the traditional notion of proportionality needs to be expanded to accommodate women’s experiences.
(c) Duty to retreat
The historical duty to retreat referred to the obligation that someone facing danger “should retreat as far as possible before employing self-help”.[33] While no longer a legal requirement, the High Court in Zecevic stated that a failure to retreat in the face of danger was relevant as a “circumstance to be considered...in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence”.[34] This question of why the accused did not retreat before applying fatal force is easily misconceived where the accused is a battered woman. The jury will typically query why a woman did not leave the violent relationship before resorting to killing her abusive partner. However this question is misconceived because not only is it “premised on the idea of the need to respond to a particular discrete instance of violence”, but it assumes that leaving the relationship would have ended the violence.[35] Bradfield wrote that the prevailing ‘common sense’ understanding is that “a woman in a violent relationship would and could leave if the violence was as bad as the women claimed”.[36] This mirrors the widespread “preoccupation with a woman’s responsibility to leave a violent relationship”[37] which obscures the power dynamics that restrict both her ability and will to leave the relationship. An expectation that women will leave violent relationships corresponds to a failure in comprehending why women don’t.[38] Indeed, Reddy’s study on social attitudes towards domestic violence highlighted the pervasive underlying belief that battered women were in some way responsible for continuing to remain in situations of violence.[39] As Wimberley posits, the issue of a woman’s ‘duty to leave’ contains assumptions that:[40]
“the woman is the one who is misbehaving by not leaving, that leaving is the normal and reasonable response to being battered, and if a woman fails to leave, her staying with her abusive partner is peculiar behaviour that requires explanation or excuse”.
Mahoney bemoaned the fact that this issue of exit “colors almost every legal and social inquiry about battering”, which she says constrains the discussion to a focus on whether the accused woman’s response to violence conforms with social expectations, detracting from the “woman’s lived experience and the personal and societal context of power”.[41] It fails to acknowledge the reality that violence and threats often force women to remain in violent relationships and assumes that she hasn’t already attempted to leave.[42] It also fails to address limiting factors such as lack of adequate protection from police, housing, child care or employment opportunities that may make it impossible for a woman to leave.[43] The reality of separation assault is also overlooked – women who are separated are more likely to experience violence than their married counterparts.[44] Overseas studies indicate that women are more likely to be assaulted or murdered by their intimate partners following separation.[45] A focus on why a woman did not respond to a particular incident of violence by leaving the house, calling for assistance or leaving the relationship ignores the fact that retreating from violence in that particular moment may not have stopped the threat of violence.[46]
2 Battered Woman Syndrome evidence
Battered Woman Syndrome (BWS) evidence has helped women address the standard of the ‘reasonable man’, but it has in turn created the ‘battered woman’ standard with its own set of assumptions that creates an obstacle for women wishing to rely on self-defence.
(a) Battered Woman Syndrome evidence: What is it?
BWS evidence was pioneered by Dr Lenore Walker to address the inadequacies of existing laws to explain or accommodate the actions of battered women. The syndrome has three stages, the first ‘tension building’ stage is followed by the second stage of acute battering, which is then followed by the third stage of ‘loving contrition’ in which the batterer expresses remorse and promises to cease the violence.[47] The second stage violence escalates as the cycle repeats itself.[48] The repeated and escalating pattern of violence leads to a psychological response of ‘learned helplessness’ from the victim, who is increasingly unable to leave the relationship as she loses self-esteem.[49] The aim of BWS evidence is to convey to the jury that a woman’s behaviour, which may seem unreasonable, is “entirely characteristic of women in her situation”.[50] BWS evidence may explain why a battered woman had “special knowledge of the imminence of an attack”, why that knowledge was reasonable, and why retreat was not an alternative,[51] and why the need to resort to fatal force was reasonable.[52] BWS evidence also assists the battered woman defendant by explaining the “interconnected nature of the accused’s experience of violence”.[53] Her fear cannot be understood by reference to discrete episodes of violence but must be viewed within the overall pattern of abuse.[54] If domestic violence is viewed episodically, then in a non-confrontational situation there would be no imminent threat.[55] What BWS evidence tries to convey is that the cycle of abuse creates an ongoing threat of danger to the battered woman.
(b) Stereotypes and myths of BWS evidence
While some praised BWS evidence as a way to dispel myths held about battered women, others “decried it as a perpetuation of stereotypes”.[56] BWS suggests that there is some “irrationality or disorder on the woman’s part”,[57] explaining that a woman’s actions are not reasonable per se, but rather, reasonable “for a woman suffering a particular psychological syndrome”.[58] The use of the term ‘syndrome’ itself refers to psychological disorder. Moreover, the theory of ‘learned helplessness’ supports the myth that “women could readily escape from [domestic violence] if only they weren’t so passive”.[59] The stereotype of the battered woman is that she is unambiguously passive, helpless, compliant and dependent. Moreover, cultural notions of ‘bad’ and ‘good’ women extend to notions of ‘bad’ and ‘good’ battered women.[60] ‘Bad’ battered women include those that abuse drugs or alcohol as well as those who are violent back towards their partners.[61] BWS has generated the myth of “the woman inert in her violent relationship”, ignoring the reality that many women actively resist their partner’s violence.[62] Battered women who retaliate risk having their victimisation obscured because the ‘battered woman’ stereotype is unable to “reconcile a woman’s...assertive behaviour with her claim of self-defence”.[63]
(c) Does BWS evidence help or hinder?
There is a real question of whether using BWS evidence “will help or hinder a woman’s case for self-defence”, especially in light of the prevalent stereotypes.[64] Stubbs and Tolmie found that in the period 2000 – 2008, BWS evidence may have assisted a small number of successful self-defence claims for women, but they also found that in one of the cases that did manage to establish self-defence, a forensic decision not to introduce BWS evidence was made “due to the risk it might be misinterpreted as suggesting pathology”.[65] They noted that there has been little attention in Australia directed to clarifying the purpose of BWS evidence and the way it relates to self-defence.[66] While BWS evidence has certainly assisted battered women in raising self-defence in some cases, the decision to use BWS evidence requires counsel to weigh up the risk that the myths and stereotypes around battered women and domestic violence will not act to undermine the claim for self-defence.
C A Broader Framework: Social Context Evidence
Academics have advocated that in order for the full context and experiences of a battered woman to be conveyed, the focus of expert evidence must change from an emphasis on the personal syndrome to an “emphasis on the larger societal syndrome that has placed the battered woman in a situation where her only option was to kill her batterer”.[67] Their criticism of BWS has pointed to the way it has focused on the individual woman’s psychology rather than portray the full social context surrounding the actions she took.[68] Acknowledging the work of Stubbs and Tolmie, Bradfield posited that BWS evidence has proved itself a “narrow and distorting construct” and that Australian jurisprudence needed to fundamentally shift the way expert evidence is presented in cases where women killed their abusive partners.[69] She suggested that ‘social framework evidence’ revealing the dynamics of power and control that characterises domestic violence relationships would allow juries to comprehend the accused’s experiences “within the context of women’s experiences generally”.[70] A broader framework would see experts introducing empirical, historical and cultural evidence to show the widespread nature of the harms caused by domestic violence.[71] The aim of such evidence would be to demonstrate the fact that the syndrome is “shared by the... community and not just the battered woman”.[72] This would also generate more nuanced understandings of women’s realities – that “women may be abused but also fight back; that women may simultaneously love and fear their partner; that women are not only victims but agents; that women may previously have left and then returned; that women are not passive”.[73] For battered women and for offending women in general, victimisation and agency are often false dichotomies, both “fail[ing] to take into account women’s daily experiences of oppression, struggle and resistance within ongoing relationships.”[74] A victim/agent dichotomy places the focus on the psychology of the individual woman rather than on the violent partner and the social structures that support or enable that violence to continue.[75] Social context evidence would show that to the extent that battered women had the capacity to exercise choice, they had a very limited choice when they were controlled and in fear of their lives. The task of social context evidence is to allow judges and juries to comprehend the complex ways that women’s choices are shaped and constrained, letting them judge the reasonableness of their behaviour from a broader standpoint.[76]
III. Analysis of successful self-defence cases: Kasparian and Chipreo
A R v Lena Kasparian
1 Facts
Lena Kasparian and the deceased, Marc Zartarian, became involved in a relationship in August 2010. They moved into a house together with Ms Kasparian’s two children, a five-year-old daughter and a three-year-old son. On 1 May 2011, the deceased, Ms Kasparian, and her children attended a birthday party in the afternoon. Mr Zartarian consumed a fair amount of alcohol there and Ms Kasparian drove them home, stopping at a McDonalds drive-thru on the way. They argued in the car and when they arrived home, Ms Kasparian initially locked him out of the house. When Mr Zartarian was let back into the house, they continued arguing in the kitchen. After being hit on the head by a saucepan by the deceased, Ms Kasparian grabbed a kitchen knife and held it in front of her. According to Ms Kasparian, Mr Zartarian walked into the knife and it went into his chest. Ms Kasparian locked herself and her children in the laundry adjacent to the kitchen and dialed triple-0, saying she’d been attacked and that she had stabbed her partner. Ms Kasparian was arrested and taken into the garage of the house, where she told police what had happened. Mr Zartarian died 5 days later from the 15mm stab wound that pierced his heart.
2 Crown case
Lena Kasparian was charged with murder. The Crown case alleged that she had stabbed the deceased with intent to cause grievous bodily harm, which they said was evidenced by her use of a knife and her act of stabbing to the upper left chest.[77] Alternatively, they alleged that Lena Kasparian was recklessly indifferent to Marc Zartarian’s life by stabbing him to an area in close proximity to the heart and lungs.[78]
To negative self-defence, the Crown proposed that while there was conduct by the deceased that may have given rise to self-defence, the threat of danger had gone by the time the saucepan had hit the ground. They tried to refute Ms Kasparian’s belief that her actions were necessary for self-defence, and they argued in the alternative that the self-defence was excessive.[79]
3 What factors enabled the defendant to successfully raise self-defence?
The most significant factor that allowed Lena Kasparian to establish self-defence in this case is the fact that the killing took place during a violent confrontation with the deceased, and that there was strong witness evidence of the deceased’s threatening conduct towards Ms Kasparian. Another factor in her favour may have been that she was not a ‘battered woman’ and thus did not have to contend with the stereotypes and myths around battered women in establishing self-defence.
(a) Traditional confrontation situation
Ms Kasparian’s account of the night was that Mr Zartarian, affected by alcohol, had been acting in an aggressive manner on the way home from the birthday party.[80] When they arrived home, she said that he had pushed her out of the car. She told him to go for a walk and had locked him out of the house. Mr Zartarian yelled loudly and kicked at the door or doorframe, and Ms Kasparian let him back inside. Once inside, they went to the kitchen. Mr Zartarian continued to act aggressively towards Ms Kasparian, and he threw some Coca-Cola at her from a McDonald’s cup before slapping her across the face. In response, Ms Kasparian threw a wine glass at the deceased, which broke on the floor. Mr Zartarian, picking up a stainless steel saucepan, hit Ms Kasparian twice on the head. She said it was “so hard, it bounced off my head”.[81] This is when she picked up the kitchen knife from the knife block behind her and held it up in front of herself. He said to her whilst coming towards her, “Stab me, stab me. Just do it. Do it, or I’ll do it”.[82] She said he had kept coming towards her and the knife went into his chest. She then took the children who had been wrapped around her legs into the laundry and locked the door.
The Crown tried to argue that there was no imminent danger at the particular time Ms Kasparian stabbed the deceased. The Crown said the deceased “wasn’t stabbed whilst hitting her with the saucepan. He was stabbed after she confronted him with the knife”.[83] On this basis, they contended that even if picking up the knife was done in self-defence, the stabbing was not since “it was done after the deceased had ceased hitting her”.[84] This is an example of the way that the legal process can “[break] down a woman’s experience of violence into discrete episodes of violence to which she can respond anew”.[85] The “atomisation of events and their reconstruction within the trial framework” can make the task of assessing reasonableness rather pointless.[86] Here, the Crown’s extreme deconstruction of the events of the night were unrealistic and ultimately not persuasive to the jury.
The situation was highly confrontational and threatening to Ms Kasparian, and moreover, most of it was witnessed by neighbours who gave evidence at trial. Ms Kasparian chose not to testify at the trial, though her two interviews to police, which were detailed and contemporaneous with the event, were in evidence. The strong witness evidence and her police interviews clearly conveyed the imminence of the threat posed by Mr Zartarian on the night of his death. The threat was magnified by the presence of Ms Kasparian’s two young children during the fight. Witnesses saw and heard Mr Zartarian when he was outside the house, screaming, swearing and banging on the door for a period of 10 to 15 minutes.[87] Neighbours heard a loud crash and thought it must have been Mr Zartarian kicking or throwing his body at the door.[88] The doorbell was also later discovered broken off from the door.[89] A witness then heard noises coming from the kitchen area, and heard the deceased’s voice become “hysterical and high pitched”.[90] That witness saw the deceased “gesticulating wildly and acting in an aggressive manner”.[91] Three witnesses heard Mr Zartarian say “Go on, do it, be a man” or “Go on and fucking do it” and things of that nature two or three times.[92] At least one witness heard the deceased threaten, “Do it, do it, or I’ll do it.”[93] A neighbour also saw through a window that the deceased was “standing over Lena” and he thought that Ms Kasparian was scared, “Judging by the tone of her voice and also Marc’s behaviour, mannerisms, his gesticulations”.[94] The same neighbour saw that the veins on Mr Zartarian’s neck were sticking out and his face was bright red and said that he was “standing aggressively over Lena”.[95] The witness also heard the laundry door being shut and then Ms Kasparian’s voice on the phone, confirming the evidence she had given of the order of events.[96] The strong witness evidence and the imminent nature of the danger ensured that Ms Kasparian’s claim for self-defence was successful. In addition to the witness evidence, Ms Kasparian had herself expressed several times on the night of the stabbing that her actions had been in self-defence. She told police on the night that “he attacked me first, it was self-defence. I was defending myself” and said “he asked me to stab him”.[97] Moreover, the stainless steel saucepan recovered from the laundry sink was found to have dings in it, which the defence counsel alleged was caused by the force of hitting Ms Kasparian’s head.[98]
(b) Not a battered woman
Although the relationship between Ms Kasparian and the deceased was presented as a volatile one with regular loud arguments,[99] it was agreed that the deceased had not been physically violent towards the accused before the night he was stabbed. Ms Kasparian’s case thus fit the traditional spontaneous encounter situation, making her claim for self-defence easily acceptable to the jury.
B R v Carmen Chipreo
1 Facts
Carmen Chipreo and the deceased, Sean Druett, met in high school. They lost touch for eight years before meeting again and commencing a relationship. They lived together for over six years. At the time of his death, the deceased was 27-years-old and the accused was 28-years-old. The deceased had been physically and verbally abusive towards the accused throughout the duration of their relationship.
On 27 February 2010, Ms Chipreo and Mr Druett had been drinking with friends who lived down the road. They shared some Passion Pop and talked about various topics. The deceased became angry at the accused and they returned to their unit at around 11 pm. They had stopped arguing by the time they arrived home and Ms Chipreo went to bed. Five minutes later, Mr Druett began arguing again and a fight broke out. At one stage the deceased came towards Ms Chipreo with clenched fists and an angry look in his eye. This was when Ms Chipreo picked up a knife from behind her and stuck it out, piercing the deceased’s chest. She then pulled it out and called triple-0. Mr Druett died at the unit a short time later.
2 Crown case
The Crown charged Ms Chipreo with manslaughter and not murder. The only issue in this case was whether Ms Chipreo had acted in self-defence, the alternative being that she was guilty of manslaughter. The Crown tried to convince the jury that Ms Chipreo did not have the requisite belief for self-defence, and alternatively, they submitted that her actions in stabbing the deceased were excessive.[100]
3 What factors allowed the defendant to establish self-defence?
There were a number of factors that allowed Ms Chipreo to successfully raise self-defence. Significantly, as in Kasparian, the killing took place during a violent confrontation between the accused and the deceased, placing it within the scope of a traditional confrontation scenario. Further, evidence of the history of physical and emotional violence was submitted as both relationship evidence and tendency evidence, which would have assisted Ms Chipreo’s claim to self-defence, especially in the absence of witnesses on the night. Another important factor that aided Ms Chipreo’s case was the expert evidence of ‘Battered Spouse Syndrome’ by Dr Bruce Westmore. Dr Westmore managed to explain Ms Chipreo’s actions without cornering her into the stereotypes or myths of battered women that the Crown attempted to rely on. Finally, Ms Chipreo was aided by the particular combination of an expert, defence counsel and judge who were enlightened on the issues around domestic violence.
(a) Traditional confrontation scenario
Ms Chipreo’s account of the night was that after Mr Druett and Ms Chipreo returned home from their friends’ house, they had stopped arguing and she had gone to bed.[101] Five minutes later, Mr Druett came into the bedroom and they began arguing. Upset, Ms Chipreo went into the lounge room and threw Mr Druett’s mobile phone to the floor. He responded by tearing up some of her clothes in the bedroom. She attempted to intervene and Mr Druett then lifted Ms Chipreo off the floor by her hair and threw her out of the bedroom into the lounge room. She landed hard on her knees, causing them to bleed, and also injured her arm when it hit the coffee table on the way down. Ms Chipreo said that the deceased then “put his foot into my ribs and just pushed me over, no rolled over...then he grabbed the top of my hair and he wrenched my head back”.[102] Ms Chipreo then threw the deceased’s mobile phone out of the unit window. She then attempted to run from the unit but was blocked in the kitchen by Mr Druett. The accused said that the deceased came towards her and “had this look in his face that he gets when he’s really angry and he’s about to really hurt me, and I just saw his fist clenched and his nostrils were flaring...”[103] Ms Chipreo said the deceased grabbed her hair and yanked her hard towards him.[104] That is when she picked up a knife from the knife block behind her and stuck it out, piercing Mr Druett’s chest. Ms Chipreo then pulled the knife out and walked away.[105] Ms Chipreo’s account describes a violent confrontation with the deceased attacking the accused on at least two occasions. The accused’s reference to the deceased’s clenched fist, flaring nostrils and “this look in his eyes” would have convinced the jury of the imminence of danger as well as her state of fear. Her account was supported by evidence found by police at the unit, which was consistent with what Ms Chipreo had said had happened. Torn clothes were located in the bedroom, and a broken mobile phone was found outside the unit window.[106] There was also evidence going to Ms Chipreo’s claim that the deceased had thrown her onto the floor, causing her knees to bleed.[107] Hairs collected from the deceased’s right hand during the post-mortem examination, while not forensically analysed, were tendered as evidence by the defence to support the assertion that the deceased had been yanking her hair at the time the accused reached for the knife.[108] The evidence of physical and verbal violence inflicted upon Ms Chipreo by Mr Druett during the years of their relationship was also persuasive in Ms Chipreo’s self-defence claim. The history of violent abuse gave the jury relevant background in understanding the relationship between Ms Chipreo and Mr Druett, and importantly, it went to the issue of what might have happened on the night in question. The jury were allowed to use evidence of Mr Druett’s previous violence as tendency evidence going towards the likelihood that he was violent towards Ms Chipreo on the night he was stabbed.[109] Evidence of Mr Druett’s violence towards Ms Chipreo was elicited from Ms Chipreo and various witnesses, including from Ms Chipreo’s friends, Mr Druett’s mother and a police officer. One such incident involved Mr Druett holding a machete to Ms Chipreo’s throat while he pinned her body down with his knees and threatened to kill her.[110] In another incident, the deceased caused the accused to bleed profusely from her head after throwing a wine glass at her, and then prevented the accused from seeking medical attention.[111] Police had been called on a couple of occasions of violence, with one of those occasions resulting in Mr Druett assaulting the police officers and being charged with assault police. The deceased’s mother also gave evidence about Mr Druett punching Ms Chipreo to the face at a family barbeque, causing her to fall and bleed.[112] Further, there was evidence that just two months before the stabbing, the deceased had punched Ms Chipreo to the face while on holidays with friends.[113] Witnesses also described seeing Mr Druett yelling and swearing at Ms Chipreo, calling her names and displaying controlling behaviour.[114] This evidence of physical and verbal abuse was largely uncontested, and along with the evidence of violence on the night, would have bolstered Ms Chipreo’s account of the imminent violence she faced at the time of the stabbing. The fact that the killing took place during a violent confrontation would have greatly assisted Ms Chipreo’s assertion of self-defence.
(b) Expert evidence
While expert evidence may not always assist a battered woman’s case for self-defence, Dr Westmore’s evidence certainly helped Ms Chipreo. His evidence on ‘Battered Spouse Syndrome’ (BSS) fulfilled the original aims of BWS evidence by conveying to the jury that Ms Chipreo’s actions during her relationship and on the night of the stabbing were reasonable in her circumstances. Indeed, Dr Westmore describes Ms Chipreo as being “almost a classic case”.[115] In his evidence, he explained that the psychological effect of the cycle of violence would have prevented Ms Chipreo from leaving the relationship generally, and also would have caused her to be in “a state of hyper arousal and extra alertness” on the night of the stabbing.[116] A large part of the Crown case was that Ms Chipreo was motivated by anger rather than fear at the time she stabbed the deceased, which was inconsistent with having acted in self-defence. In cross-examining Ms Chipreo, the Crown tried to adduce from her that she was angry with the deceased on the night:[117]
Q: What was your reaction to him tearing up your wedding dress?
A: I was gutted...
Q: Angry with him?
A: Upset.
Q: Angry with him?
A: I was upset.
...
Q: ... You were also angry with him at that point, weren’t you?
A: I was upset ..
Q: No you were angry with him when you threw his phone to the floor, weren’t you?
A: Yes.
...
Q: So you were angry and frustrated with him?
A: Yep.
...
Q: You intended, when you threw his phone to the floor, to break it?
A: I don’t, I was just letting out frustration...
Q: In retaliation for the things that he had said to you, perhaps?
A: Just to let out frustration.
Q: Yes, in retaliation for what he had said to you?
A: Yes.
Pointing out that the accused had retaliated on the night by throwing the deceased’s phone out the window, the Crown claimed that she was not a “totally submissive victim”.[118] The Crown’s focus on the fact that Ms Chipreo was not “totally submissive” and that she may have felt anger on the night demonstrates their reliance on the myth of the ‘inert battered woman’ and stereotype of the unambiguously passive and weak battered woman. As Stubbs and Tolmie noted, “battered women who... retaliate...risk...having their victimisation obscured or denied.[119] That is precisely what the Crown attempted to do in this case. In responding to the Crown’s assertion that anger on the accused’s part would be inconsistent with her account that she was acting in fear, Dr Westmore remarked that it was “simplistic to suggest that she had one emotion”.[120] He said that in that situation, Ms Chipreo’s emotions would have been “mixed at best” and that they would “flash milliseconds between anger and fear and anxiety and apprehension and they’re all jumbled together at any given time”.[121] The expert’s realistic portrayal of Ms Chipreo’s feelings allowed the jury to consider her reality as she perceived it at the time. Dr Westmore clearly did not hold Ms Chipreo to the battered woman stereotype of the weak and helpless woman.
(c) Combination of counsel, expert and judge
The final factor which enabled Carmen Chipreo to prove self-defence was that the expert, defence counsel and the judge were all enlightened on issues of domestic violence and BWS evidence. This is evident on the part of defence counsel, Dina Yehia SC, in the meticulous manner in which she ran the defence case. One example is the way Ms Yehia SC refuted the Crown’s focus on Ms Chipreo’s use of the knife. The Crown case for manslaughter partly rested on that fact that Ms Chipreo’s response was excessive because she had used a knife. The Crown argued: “the deceased was unarmed...She picked up a knife and... stabbed him to the chest...she chose to use a knife.”[122] The issue of proportionality is an obstacle to battered women convincing juries of the reasonableness of their actions. However, Ms Yehia SC effectively countered the Crown’s assertion by reference to size difference, the deceased’s past violent actions, the vulnerability that the accused must have felt being naked, and expert evidence from the pathologist. She first drew attention to the difference in size and strength – Ms Chipreo was slight and weighed 52 kilograms while Mr Druett, who was around the same height, weighed 82 kilograms.[123] Ms Yehia SC then pointed out that the deceased was in fact “armed with a good, strong fist”, a “clenched fist that [the accused] had experienced in the past”.[124] She also noted that Ms Chipreo would have felt profoundly vulnerable and “extremely unarmoured” from being naked at the time.[125] Ms Yehia SC noted that there was only a single stab wound measuring 15 to 20 cm deep, and in cross-examination elicited from the pathologist that the shape of the wound was consistent with the motion the accused had indicated.[126]
The trial judge, Justice Megan Latham, demonstrated her sound knowledge of the dynamics of domestic violence in her Summing Up to the jury, where she reminds the jury of the relevance of Dr Westmore’s evidence on Battered Spouse Syndrome, which is that it is not simply the events of the night of the stabbing that the jury must consider, but the “cumulative effect of a series of assaults upon the accused” that would have played a part in her belief and actions on the night.[127] She is cognisant of the “likely effect of... repetitive violence...on a person, how that would affect their outlook in the relationship, how that would affect their self-esteem.”[128] Her Honour also displayed her robust understanding of BWS (or BSS) evidence during a voir dire determination of whether to allow certain evidence. The Crown sought to adduce extra material to show that the accused was “willing to assert herself to the deceased”.[129] Such evidence, the Crown claimed, was relevant to assessing her state of mind on the night of the stabbing.[130] What the Crown was trying to assert was that evidence of the Ms Chipreo’s ability to stand up for herself was somehow inconsistent with her claim for self-defence. It was clearly based on the construct of the helpless, passive battered woman. Justice Latham replied that such evidence would only be relevant to self-defence if the defence were to paint a “black and white scenario” and present the accused as being “completely under his thrall and ...paralysed...into inactivity at the moment he lost his temper”.[131] Her Honour noted, “but...relationships are a lot more complex than that”,[132] contrasting the “black and white” stereotypes of battered women with the complex realities of battered women’s experiences.
From the analysis of Kasparian and Chipreo, two ‘invisible’ acquittals that have now been ‘seen’ and analysed, it can be suggested that one of the biggest reasons these defendants were able to establish self-defence was that each killing took place during a violent confrontation where the imminence of danger could be easily comprehended. A traditional confrontation situation may not have been sufficient if it was the only factor, but in Kasparian, this was supported by ample witness evidence of the deceased’s threatening behaviour, while in Chipreo it was bolstered by evidence of the history of the deceased’s violence towards the accused. The defendant in Kasparian was saved from having to decide whether or not to use BWS evidence, since her relationship with the deceased was not one of ongoing physical abuse. In any case, Chipreo illustrates how BWS evidence can be used to assist a woman’s self-defence claim without restricting it to ‘battered woman’ stereotypes. That case also demonstrated the advantage of having an expert, defence counsel and judge who are alive to the issues around battered woman defendants and self-defence.
[1] Victorian Law Reform Commission, Defences to Homicide: Final Report (2004), 64, 106.
[2] Elizabeth A Sheehy, Julie Stubbs and Julia Tolmie, ‘Battered women charged with homicide in Australia, Canada and New Zealand: How do they fare?’ (2012) 45(3) Australian and New Zealand Journal of Criminology 383, 385-386.
[3] Julie Stubbs and Julia Tolmie, ‘Defending Battered Women on Charges of Homicide: The Structural and Systemic versus the Personal and Particular’ in Wendy Chan, Dorothy E Chunn and Robert Menzies (eds), Women, Madness and the Law: A Feminist Reader (Glasshouse Press, 2005) quoted in Kellie Toole, ‘Self-Defence and the Reasonable Woman: Equality before the New Victorian Law’ [2012] MelbULawRw 7; (2012) 36 Melbourne University Law Review 250, 273.
[4] Julie Stubbs and Julia Tolmie, ‘Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women’ (2008) 41(1) The Australian and New Zealand Journal of Criminology 138, 139.
[5] Robert Costello, ‘Book Review: Not Guilty: Are the Acquitted Innocent?’ (2013) 22(2) Social and Legal Studies 282, 282.
[6] R v Lena Kasparian (Supreme Court of New South Wales, 11/141838, Garling J, 24 September 2012 – 27 September 2012).
[7] R v Carmen Miranda Chipreo (Supreme Court of New South Wales, 10/52288, Latham J, 31 January 2011 – 11 February 2011).
[8] I thank her Honour Justice Latham, Justice Latham’s Associate Helen Longmore and the Supreme Court Listings Manager Milio Cesta-Incani for alerting me to these cases and granting me access to the transcripts.
[9] Andy Chan and Jason Payne, Homicide in Australia: 2008-09 to 2009-10 National Monitoring Program annual report ((Australian Institute of Criminology, 2013), 24; Toole, above n 3, 255.
[10] Rebecca Bradfield, ‘Is Near Enough Good Enough? Why Isn’t Self-Defence Appropriate for the Battered Woman?’ (1998) 5(1) Psychiatry, Psychology and Law 71, 71.
[11] Ibid.
[12] VLRC, above n 1, 63.
[13] Toole, above n 3, 256.
[14] Toole, above n 3, 257.
[15] Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645, 662-663.
[16] Armstrong Legal, Self Defence Law in NSW, <http://www.armstronglegal.com.au/web/page/criminal_defences-self_defense> .
[17] VLRC, above n 1, 60.
[18] Ibid, 61.
[19] See, eg, Stubbs and Tolmie, above n 4; Patricia Easteal, ‘Battered Women Who Kill: A Plea of Self-Defence’ in Patricia Easteal and Sandra McKillop (eds) Women and the Law (Australian Institute of Criminology Conference Proceedings No 16, 1993).
[20] Bradfield, above n 10, 76.
[21] Toole, above n 3, 256.
[22] Easteal, above n 19.
[23] Bradfield, above n 10, 76.
[24] VLRC, above n 1, 162.
[25] Ibid; Alex Heckett and Edward Gondolf, Predicting Levels of Abuse and Reassault Among Batterer Program Participants (Final Report); A Weisz, R Tolman and D Saunders, ‘Assessing the Risk of Severe Domestic Violence: The Importance of Survivors’ Predictions’ (2000) 15 Journal of Interpersonal Violence 75.
[26] Ibid.
[27] VLRC, above n 1, 83.
[28] Department of Justice, ‘Defensive Homicide: Review of the Offence of Defensive Homicide’ (Discussion Paper, August 2010); Toole, above n 3, 261.
[29] The Queen v MacDonald (Supreme Court of Victoria, Justice Nettle, 28 February 2006).
[30] Ibid.
[31] Toole, above n 3, 257; VLRC, above n 1, 83.
[32] Rebecca Bradfield, The Treatment of Women Who Kill Their Violent Male Partners Within the Australian Criminal Justice System (Unpublished PhD Thesis, University of Tasmania, 2002), 204.
[33] Stubbs and Tolmie, ‘Feminisms, Self-Defence, and Battered Women: A Response to Hubble’s ‘Straw Feminist’’ (1998-1999) 10 Current Issues in Criminal Justice 73, 79.
[34] Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645, 663.
[35] Stubbs and Tolmie, above n 33, 78-79.
[36] Rebecca Bradfield, ‘Understanding the Battered Woman Who Kills Her Violent Partner – The Admissibility of Expert Evidence of Domestic Violence in Australia’ (2002) 9(2) Psychiatry, Psychology and Law 177, 185.
[37] Ibid.
[38] Ibid.
[39] Ibid, 183.
[40] Mary Helen Wimberly, ‘Defending Victims of Domestic Violence Who Kill Their Batterers: Using the Trial Expert to Change Social Norms’ <http://www.americanbar.org/content/dam/aba/migrated/domviol/docs/Wimberly.authcheckdam.pdf> , 10.
[41] M Mahoney, ‘Victimization or Oppression? Women’s Lives, Violence & Agency’ in M Fineman & R Mykitiuk (eds), The Public Nature of Private Violence (New York, 1994) quoted in Bradfield, above n 10, 183.
[42] Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369, 373.
[43] Ibid.
[44] Liesl Mitchell, ‘Domestic Violence in Australia – an overview of the issues’ (Parliamentary Library, Parliament of Australia, 2011).
[45] J Campbell et al, ‘Risk Factors for Femicide in Abusive Relationships: Results from a Multi-site Case Control Study’ (2003) 93(7) American Journal of Public Health 1089.
[46] Stubbs and Tolmie, above n 33, 79.
[47] Lenore E A Walker, 'Understanding battered woman syndrome' (1995) 31(2) Trial 30.
[48] Patricia Easteal, above n 19, 38.
[49] Ibid.
[50] Ibid.
[51] Wimberley, above n 40, 1.
[52] Sheehy, Stubbs and Tolmie, above n 2, 376.
[53] Bradfield, above n 36, 183.
[54] Ibid.
[55] Ibid, 184.
[56] Wimberley, above n 40, 2.
[57] Julie Stubbs, ‘Battered Woman Syndrome: Advancing Women’s Interests or Reinforcing Orthodoxy’ (Nov 1996) Women Against Violence: An Australian Feminist Journal 5, 6.
[58] Ibid.
[59] Ibid.
[60] Stubbs and Tolmie, above n 4, 142.
[61] Ibid. Stubbs and Tolmie observed that indigenous Australians, for a variety of reasons, usually fall into the category of the ‘bad’ battered woman.
[62] Bradfield, above n 36, 186.
[63] Ibid.
[64] Ibid.
[65] Stubbs and Tolmie, above n 4, 145.
[66] Ibid.
[67] Wimberley, above n 40, 2; Bradfield, above n 36; Stubbs and Tolmie, above n 4.
[68] Stubbs, above n 57, 6.
[69] Julie Stubbs and Julia Tolmie, ‘Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome’ [1999] MelbULawRw 27; (1999) 23 Melbourne University Law Review 709, 711; Bradfield, above n 36, 181.
[70] Bradfield, ibid, 184.
[71] Wimberly, above n 40, 15.
[72] Ibid, 16.
[73] Bradfield, above n 36, 186.
[74] Elizabeth Schneider, ‘Particularity and Generality: Challenges of Feminist Legal Theory and Practice in Work on Woman Abuse’ (1992) 67 New York Law Review 520, 549 quoted in Stubbs and Tolmie, above n 4, 142.
[75] Ibid.
[76] Stubbs and Tolmie, above n 33, 81.
[77] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 24 September 2012), 8.
[78] Ibid, 8-9.
[79] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 25 September 2012), 118.
[80] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 24 September 2012), 11.
[81] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 26 September 2012), 164.
[82] Ibid.
[83] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 26 September 2012), 163.
[84] Ibid, 163-164.
[85] Bradfield, above n 36, 180.
[86] Ibid.
[87] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 25 September 2012), 64.
[88] Ibid, 86.
[89] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 24 September 2012), 10.
[90] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 25 September 2012), 64.
[91] Ibid, 66.
[92] Ibid, 64, 69, 74-75.
[93] Ibid, 71.
[94] Ibid, 69.
[95] Ibid, 70.
[96] Ibid, 65.
[97] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 24 September 2012), 39.
[98] Ibid, 12.
[99] Transcript of Proceedings, R v Lena Kasparian (Supreme Court of New South Wales, Garling J, 25 September 2012), 63, 73, 82, 85.
[100] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 31 January 2011), 16.
[101] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 224.
[102] Ibid, 224-225.
[103] Ibid, 225.
[104] Ibid, 245.
[105] Ibid, 250.
[106] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 31 January 2011), 34, 46.
[107] Ms Chipreo told her father shortly after the incident that Mr Druett had thrown her to the floor causing her knees to bleed: Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 2 February 2011), 140; Ms Chipreo referred to her knees being bloody in a letter to the deceased’s mother: ibid, 128); Ms Chipreo gave evidence of police photographing her bloody knees on the night: Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 232.
[108] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 31 January 2011), 55.
[109] Summing Up, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 10 February 2011), 18.
[110] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 181-182.
[111] Ibid, 208-209.
[112] Ibid, 183.
[113] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 183, 213.
[114] See, eg, ibid, 192, 200.
[115] Ibid.
[116] Ibid.
[117] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 241-243.
[118] Ibid, 307.
[119] Stubbs and Tolmie, above n 2, 138.
[120] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 9 February 2011), 300.
[121] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 3 February 2011), 301.
[122] Ibid, 15.
[123] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 9 February 2011), 326.
[124] Ibid.
[125] Ibid.
[126] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 31 January 2011), 29.
[127] Summing Up, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 10 February 2011), 5.
[128] Ibid.
[129] Transcript of Proceedings, R v Carmen Chipreo (Supreme Court of New South Wales, Latham J, 2 February 2011), 161.
[130] Ibid.
[131] Ibid, 168.
[132] Ibid.
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