Rj Bradfield

Is near enough good enough? Why isn't self‐defence appropriate for the battered woman?

This article considers the application by the Australian courts of the defences of provocation and self‐defence to women who kill their abusive partners. Australian cases are examined to investigate the assertion that the courts tend to categorise the killing as raising the defence of provocation rather than self‐defence. It is argued, through reference to certain cases, that the practical reality is that the woman is often acting to protect her life or that of her children. The courts and the legislature in some Australian jurisdictions have been willing to expand the concept of provocation to give some recognition to the reality of the battered woman. The concerning aspect of this focus is that it diverts attention from the apparent reluctance of courts to accept the seriousness of domestic violence and the unwillingness of the courts to reconsider the application of the defence of self‐defence. This article considers the reasons for the courts reliance on provocation at the expense of self‐defence.

Understanding the Battered Woman Who Kills Her Violent Partner - the Admissibility of Expert Evidence of Domestic Violence in Australia

This article aims to challenge the traditional way in which evidence of the accuseds personal history is presented and constructed in cases where battered women kill and rely on self-defence. Although an accused (and other witnesses) may provide an account of the history of violence and her lack of alternatives other than the use of force, the potential message of reasonable necessity that this evidence might convey is usually not realised. It is contended that the current evidentiary framework of “battered woman syndrome” (BWS) relied on for the presentation of “expert evidence” to educate judges and juries in cases where women kill their violent partners works against the efforts of defence counsel to make apparent the reality of the accuseds situation. In this article, a fundamental shift from BWS evidence (with or without accompanying social framework evidence) to the reception of social framework evidence in its own right is proposed. This conceptual change aims to open the way for the legal system to think more creatively about the relevance of specific evidence relating to the personal experiences of the accused that is presented in cases where women kill their violent partners.