In some cases domestic and family violence has been considered an area of specialised knowledge and opinion or expert evidence has been admitted. This type of evidence may include evidence about so-called ‘battered woman syndrome’; the general dynamics of violent relationships; the cycle of violence; and the complex reasons some people stay in violent relationships, or do not report violence, or behave in certain ways to protect themselves. Expert witnesses qualified to give such evidence have included psychiatrists, psychologists, social workers, and academics.
The following cases have admitted opinion or expert evidence about the context of domestic and family violence in relevant criminal proceedings.
Appeal Type: Appeal against conviction.
Facts: The appellant and her son were jointly tried in the Supreme Court of Victoria for the murder of her husband Mr Osland (the appellant’s son’s step-father). The jury convicted the appellant but was unable to reach a verdict with respect to her son. Her son was later retried and acquitted. The prosecution case was that the appellant and her son planned to murder her husband. The appellant mixed sedatives with her husband’s dinner in sufficient quantity to induce sleep within an hour. The appellant’s son later completed the plan by hitting Mr Osland on the head with an iron pipe while he was asleep. He and the appellant then buried Mr Osland in a grave they had earlier prepared. At trial, the appellant and her son relied on self-defence and provocation raised against ‘an evidentiary background of tyrannical and violent behaviour by Mr Osland over many years’ which had allegedly been ‘escalating in the days prior to his death’ (at ). The prosecution accepted that Mr Osland had been violent in the past but maintained that this behaviour had ceased well before he was murdered. The appellant raised expert evidence of the ‘battered woman syndrome’ (BWS) in support of her case. A psychologist’s evidence indicated that the appellant’s relationship with her husband was ‘consistent with it being a battering relationship’ (at ).
The psychologist outlined the general characteristics of battered women as follows (at ):
Issue/s: Some of the issues concerned –
Decision and Reasoning: The appeal was dismissed by majority (Gaudron and Gummow JJ dissenting). However, all members of the Court were unanimous in holding that the trial judge’s directions with respect to ‘battered woman syndrome’ (BWS) were appropriate.
Gaudron and Gummow JJ:
“Expert evidence is admissible with respect to a relevant matter about which ordinary persons are "[not] able to form a sound judgment ... without the assistance of [those] possessing special knowledge or experience in the area" and which is the subject "of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience"” (at )
“…there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.” (at )
“So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.” (at )
“…there is an obligation on counsel to make clear to the jury and the trial judge the precise manner in which they seek to rely on expert evidence of battered wife syndrome and to relate it to the other evidence and the issues in the case. In circumstances where evidence of battered wife syndrome is given in general terms, is not directly linked to the other evidence in the case or the issues and no application is made for any specific direction with respect to that evidence, it cannot be concluded that the trial judge erred in not giving precise directions as to the use to which that evidence might be put.” (at )
Callinan J (while agreeing that the directions with respect to BWS were appropriate) held that to adopt a new and separate defence of BWS ‘goes too far for the laws of this country’ (see at ). His Honour also noted that these issues could be matters for expert evidence as well as matters of common sense for a jury to decide with the assistance from the trial judge.
McHugh J did not make any comments on BWS.
His Honour discussed the relevance of the BWS defence in abusive relationships. His Honour was of the opinion that the term should not be restricted to women because there may be situations where men are the victims such as similarly abusive same-sex relationships, and ‘unlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims’ (at ).
His Honour was broadly supportive of BWS evidence but did note some controversies around it and was somewhat critical of it: “…it appears to be an “advocacy driven construct” designed to “medicalise” the evidence in a particular case in order to avoid the difficulties which might arise in the context of a criminal trial from a conclusion that the accused's motivations are complex and individual: arising from personal pathology and social conditions rather than a universal or typical pattern of conduct sustained by scientific data’ (at ).
Further, he was critical of the term itself and stated it should not be used. He was also aware that the syndrome was ‘based largely on the experiences of Caucasian women of a particular social background’ (whose) ‘”passive” responses may be different from those of women with different economic or ethnic backgrounds’ (at ).Ultimately however, his Honour was supportive – ‘Although BWS does not enjoy universal support, there is considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of "traumatic bonding" which may occur in abusive relationships’ (at ).
Charge/s: Manslaughter by excessive self-defence.
Facts: The offender stabbed and killed her partner, James Polkinghorne. The relationship had been characterised by escalating physical and verbal abuse from the deceased towards the offender. On the 13 May 2012, the deceased made increasingly threatening and abusive telephone calls and messages to the offender. That night, he went to the home of the offender’s parents, where the offender was present. He was highly aggressive and high on methylamphetamine. The facts of what followed were confused and confusing (see -). In summary, the deceased threatened to kill the offender, he assaulted the offender, and the offender’s brother and father intervened. They began fighting with the deceased. The offender retrieved a knife from inside and, while the offender was on top of her brother, stabbed and killed the deceased. The offender was found not guilty of murder but guilty of manslaughter.
Decision and Reasoning: A sentence of 18 months imprisonment, wholly suspended was imposed. Hoeben CJ first made a number of factual findings. At  His Honour found that:
‘the offender stabbed the deceased with an intention to inflict grievous bodily harm because she believed her act was necessary to defend not only herself but her brother and father. However, in accordance with the jury’s verdict, the offender’s conduct was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence’.
His Honour also had regard, with some qualifications, to the evidence of Associate Professor Quadrio, a consultant psychiatrist. In her report, Professor Quadrio concluded that during her relationship with the deceased, the offender developed chronic and complex Post Traumatic Stress Disorder (PTSD) with particular features which were described as ‘Battered Woman Syndrome’. She also concluded that the offender continued to suffer from PTSD. Hoeben CJ found at :
‘In the absence of any psychiatric opinion to the contrary, I would normally accept such a diagnosis. In this case I am not prepared to do so. This is because the diagnosis is based upon significant pieces of history from the offender which are different to the evidence at trial and to what the offender said in her ERISP. I am prepared to accept that the offender currently suffers from PTSD. The events of the night of 13 May 2012 would of themselves be sufficient to bring about such a condition and there is no reason to doubt the existence of the symptoms which the offender described following the deceased’s death. What I am not prepared to accept is that the Post Traumatic Stress Disorder was due to the offender’s relationship with the deceased and was in existence before the deceased’s death’.
However, His Honour did accept that the offender stabbed the deceased when she was in a highly emotional and hysterical state (see -).
In reaching an appropriate sentence, Hoeben CJ took into account a number of considerations. These included that specific deterrence were not relevant in light of the offender’s rehabilitation and the unlikelihood of re-offending (see ). General deterrence was not accorded substantial weight in light of exceptional factual circumstances (the deceased had made escalating threats of violence approaching the offender’s home and the offender’s state of mind was affected by being already brutally assaulted and witnessing the struggle between her family members and the deceased) (see ). The objective seriousness was at the lower end of the range as was the offender’s culpability (see -).
As against these matters, Hoeben CJ had regard to the sanctity of human life, the need to denounce the conduct of the offender and hold her accountable for her actions (see ).The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen  NSWCCA 284 (7 December 2016).
Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).
Applegarth J, summing up (3 June 2010):
‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.
However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.
It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.
I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.
The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.
It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.
Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.
And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….
Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.
Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):
‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.
The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…
I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."
Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."
Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."
Charge/s: False imprisonment, grievous bodily harm.
Appeal Type: Appeal against conviction.
Facts: The two female appellants were in a relationship with a man named Hill. There was a consistent pattern of domineering and violent conduct by Hill towards both appellants. The appellants were part of a plan to help Hill forcibly confine the complainant and cause her injury. At trial, they sought to admit expert evidence of ‘battered woman syndrome’ to support a claim of duress. The trial judge ruled that the evidence was inadmissible on the ground that the test for duress was objective and expert evidence of the state of mind of the appellants was therefore irrelevant.
Issue/s: Whether the expert evidence of battered woman syndrome ought to have been admissible to support a claim of duress.
Decision and Reasoning: King CJ (with whom Bollen and Legoe JJ agreed) held that the evidence ought to have been admissible and a re-trial was ordered. In reaching this decision, King CJ first held that the trial judge’s reason did not provide a sound basis for excluding the evidence. It ignored the subjective aspect of the test for duress and it also misunderstood the main thrust of the proffered evidence. While the expert might have been in a position to comment on the state of mind of the appellants, the primary thrust of such evidence was to establish a pattern of responses commonly exhibited by battered women. At :
‘The proffered evidence is concerned not so much with the particular responses of these appellants as with 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. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant’.
Second, King CJ considered whether expert evidence of battered woman syndrome met the essential pre-requisite that it had been accepted by experts in the field of psychology or psychiatry as a scientifically accepted facet of psychology. Following significant consideration of scientific literature, at  and , King CJ held that the evidence was admissible:
‘It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the Court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations, would not be admitted.‘This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained’.
Appeal Type: Appeal against conviction.
Facts: In September 1988, after a trial which lasted less than a day, the female appellant, an Aboriginal woman, was convicted of murder for killing her abusive male partner of three years and was sentenced to life imprisonment. The appellant did not give or call evidence at her trial. It was only five years later, after the appellant had spent years speaking to a particular social worker (Mr Berry) in prison, that evidence of the abuse she suffered emerged. Kina applied to the Governor in Council for the exercise in her favour of the royal prerogative of mercy. Section 672A of the Criminal Code preserves the pardoning power of the Governor, adding in para. (a) ‘that the Crown Law Officer may refer the whole case to the Court of Appeal, to be heard and determined as in the case of an appeal by a person convicted.’ Under this provision on 24 May 1993 the Attorney General referred to the Court of Appeal ‘the whole case with respect to the conviction of ... Robyn Bella Kina on the charge of murder ...’ of Anthony David Black.
Decision and Reasoning: The appeal was allowed, the conviction and verdict set aside and a new trial ordered. Evidence of Mr Berry, the social worker, was important in this case. Mr Berry first saw the appellant before her trial in April 1988. Over the following months, the appellant slowly disclosed her story to Mr Berry – that the deceased had continually beaten her up, forced her to have anal sex with him and that he tied her up. Mr Berry tried to communicate with the appellant’s lawyers before the trial but was advised that her legal representatives wished that he ‘would not interfere with proceedings’. After the trial, the social worker saw the appellant in a counselling capacity. The appellant’s self-esteem improved and in 1991 she was able to give evidence about the deceased’s threat to anally rape her 14 year old niece.
In finding there was a miscarriage of justice, Fitzgerald P and Davis JA held that:“In this matter, there were, insufficiently recognised, a number of complex factors interacting which presented exceptional difficulties of communication between her legal representatives and the appellant because of: (i) her aboriginality; (ii) the battered woman syndrome; and (iii) the shameful (to her) nature of the events which characterised her relationship with the deceased. These cultural, psychological and personal factors bore upon the adequacy of the advice and legal representation which the appellant received and effectively denied her satisfactory representation or the capacity to make informed decisions on the basis of proper advice”.
Facts: The female offender had lived with her male de facto partner, the deceased, for 25 years (since she was 17 years old). The deceased had been violent towards the offender throughout their relationship, including hitting her in the eye with a baseball bat, but she did not have the means to leave the relationship. The deceased would often taunt the offender and dare her to stab him. They both suffered from alcoholism. One evening, the offender was heavily intoxicated and stabbed the deceased in the chest, killing him. At the time, she did not intend to kill him nor did she realise he was dead and she went to bed. The next morning she called the police and made full admissions. The offender’s recollection of events was imperfect because of her intoxication.
Decision and Reasoning: Buddin J had extensive regard to a psychological report prepared by Ms Danielle Castles, who had 17 years’ experience working in the social welfare field, with particular expertise about drug and alcohol issues and domestic violence (See -). Ms Castles commenced her report by explaining the nature of domestic violence and stated at  that:
‘domestic violence is the term used to describe the violence and abuse perpetrated upon a partner in a marriage or marriage like relationship. It is essentially the misuse of power and the exercise of control by one person, usually the man, over another, usually the woman. “Women experiencing domestic violence are often subjected to physical, sexual, emotional/psychological, social and economic abuse. Abuse may be overt (physical violence) or it might be deceptively subtle (emotional abuse). It is the interplay between making the woman fearful and reducing her self-esteem which results in the abuse having significant and prolonged effects on the woman.”
The effects of domestic violence are such that women in violent relationships are convinced they are hopeless, that they need to be dependent upon the abuser and could not possibly survive without him. The most significant aspect of prolonged abuse is the gradual breaking down of a woman’s autonomy’.
Ms Castles then set out the ways in which domestic violence impacted upon the offender here (See -).
Buddin J ultimately found that the offender’s criminality was at the lower end of the scale of culpability of an offence of this kind i.e. non-intentional homicide in circumstances of tragic misadventure. Her intention was no more and no less than to engage in a desperate and objectively dangerous gesture, without intending any real harm or worse to the deceased. This, in conjunction with the very powerful subjective case advanced on behalf of the offender, meant that an exceptional sentence of a good behaviour bond for four years was appropriate, notwithstanding the fact that a life was taken (See ). The subjective factors that mitigated sentence included that ‘the offence took place against the background of continuing domestic violence over a prolonged period of time, the impact upon her of which cannot, for the reasons advanced by Ms Castles and others, be underestimated’ (See ). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See ).
Charges: Defensive Homicide.
Facts: The defendant was charged with murdering her de facto partner but was found guilty of defensive homicide. She struck the deceased to the head 16 times with an axe. She buried the deceased’s body in the backyard and lied about his whereabouts to family and friends for more than four years, claiming that he had gone interstate. The defendant gave an account of a violent fight which led to the deceased’s death which included the deceased taunting and goading the defendant. She attested to a long history of family violence by the deceased.
Issue/s: The appropriate sentence to be imposed.
Decision and Reasoning: The defendant was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years. In finding the defendant guilty of defensive homicide, the jury had to be satisfied that the killing took place in the context of a serious history of family violence. Hollingworth J noted at  that, while there was no evidence that the defendant or her children had ever complained about family violence, this is not uncommon.
The deceased was the dominant person in the relationship. He had a long history of violence and drank heavily. His behaviour towards the defendant ‘over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse’ (). Her Honour noted, ‘The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased’ ().The Court heard (largely unchallenged) expert evidence from Professor Patricia Easteal regarding the complex dynamics of family violence, the reasons why women often do not leave violent partners and the use of weapons by female victims of family violence against male partners (-). Given this evidence, Her Honour noted that while ordinarily, striking 16 blows with an axe in response to a minor physical and verbal attack by an unarmed attacker would seem disproportionate, this may not be the correct conclusion in family violence cases involving a female offender (). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.