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’ (a subset of post-traumatic stress disorder - although evidence as to victim post-traumatic stress disorder is more common); 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.
Some jurisdictions have specific provisions in relation to the admission of expert evidence on the subject of domestic and family violence.
Section 103CC of the Evidence Act 1977 (Qld) states that expert evidence about domestic violence is admissible in a criminal proceeding. The provision identifies that evidence by an expert may include evidence about the nature and effects of domestic violence on persons generally and evidence about the effect of domestic violence on a particular person who has been subjected to domestic violence. For the section an expert on the subject of domestic violence includes a person who can demonstrate specialised knowledge, gained by training, study or experience, of a matter that may constitute evidence of domestic violence. Section 103CD of the Evidence Act 1977 (Qld) evidence of an expert’s opinion given under section 103CC is not inadmissible only because the opinion as about a fact in issue or an ultimate issue; or a matter of common knowledge.
Section 38 of the Evidence Act 1906 (WA) defines evidence of family violence very broadly (including ways in which social, cultural, economic or personal factors have affected any help-seeking behaviour undertaken by the person, or the safety options realistically available to the person, in response to family violence). S39 Evidence Act 1906 (WA) permits relevant expert evidence about domestic violence in criminal proceedings (which may include evidence about the nature and effects of domestic violence on persons generally and about the effect of family violence on a particular person) and defines an expert on the subject of family violence to include a person who can demonstrate specialised knowledge, gained by training, study or experience, of any matter that may constitute evidence of family violence. The Evidence Act 1906 (WA) also contains a provision (s39B) relating to the relevance of evidence of family violence to the defence of self-defence.
Section 322J of the Crimes Act 1958 (Vic) defines evidence of family violence broadly (including the social, cultural and economic factors which impact on a person affected by family violence and the psychological effect of relationships affected by family violence. The Crimes Act 1958 (Vic) also contains specific provisions relating to the relevance of evidence of family violence to defences of self-defence (s322M(2)) and duress (s322P).
Part 3 Division 4 (sections 34U-34Z) of the Evidence Act 1929 (SA) provides that where a defendant claims an offence occurred in circumstances of family violence a court may receive evidence of family violence (s34W), including expert evidence consisting of ‘social framework evidence’ about family violence where the defendant asserts the offence occurred in circumstances of family violence, and for which any of the defences of self-defence, duress and/or sudden or extraordinary emergency are raised. Where such evidence is received the judge must identify and explain the purpose for which the evidence may and may not be used (s 34Y).
The following cases have admitted opinion or expert evidence about the context of domestic and family violence in relevant criminal proceedings.
Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court
R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
Inkamala v An Assessor under s 24 of the Victims of Crime Act [2022] NTCAT 20 (8 December 2022) – Northern Territory Civil and Administrative Tribunal
R v Falls, Coupe, Cummings-Creed & Hoare [2010] QSC (3 June 2010) summing up - unreported – Queensland Supreme Court
R v Ney [2011] QSC Indictment No 597 of 2008 (8 March 2011) sentence - unreported – Queensland Supreme Court
R v Runjanjic and Kontinnen (1991) 53 A Crim R 362; (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991) – South Australia Supreme Court (Full Court)
Rowan (a pseudonym) v The King [2022] VSCA 236 (28 October 2022) – Victorian Court of Appeal
R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal
R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
Liyanage v Western Australia [2017] WASCA 112 (22 June 2017) – Western Australia Supreme Court (Court of Appeal)
DPP v Williams [2014] VSC 304 (27 June 2014) – Victorian Supreme Court
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 ([33]-[34]). 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 ([36]). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.
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’ (a subset of post-traumatic stress disorder - although evidence as to victim post-traumatic stress disorder is more common); 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.
Some jurisdictions have specific provisions in relation to the admission of expert evidence on the subject of domestic and family violence.
Section 103CC of the Evidence Act 1977 (Qld) states that expert evidence about domestic violence is admissible in a criminal proceeding. The provision identifies that evidence by an expert may include evidence about the nature and effects of domestic violence on persons generally and evidence about the effect of domestic violence on a particular person who has been subjected to domestic violence. For the section an expert on the subject of domestic violence includes a person who can demonstrate specialised knowledge, gained by training, study or experience, of a matter that may constitute evidence of domestic violence. Section 103CD of the Evidence Act 1977 (Qld) evidence of an expert’s opinion given under section 103CC is not inadmissible only because the opinion as about a fact in issue or an ultimate issue; or a matter of common knowledge.
Section 38 of the Evidence Act 1906 (WA) defines evidence of family violence very broadly (including ways in which social, cultural, economic or personal factors have affected any help-seeking behaviour undertaken by the person, or the safety options realistically available to the person, in response to family violence). S39 Evidence Act 1906 (WA) permits relevant expert evidence about domestic violence in criminal proceedings (which may include evidence about the nature and effects of domestic violence on persons generally and about the effect of family violence on a particular person) and defines an expert on the subject of family violence to include a person who can demonstrate specialised knowledge, gained by training, study or experience, of any matter that may constitute evidence of family violence. The Evidence Act 1906 (WA) also contains a provision (s39B) relating to the relevance of evidence of family violence to the defence of self-defence.
Section 322J of the Crimes Act 1958 (Vic) defines evidence of family violence broadly (including the social, cultural and economic factors which impact on a person affected by family violence and the psychological effect of relationships affected by family violence. The Crimes Act 1958 (Vic) also contains specific provisions relating to the relevance of evidence of family violence to defences of self-defence (s322M(2)) and duress (s322P).
Part 3 Division 4 (sections 34U-34Z) of the Evidence Act 1929 (SA) provides that where a defendant claims an offence occurred in circumstances of family violence a court may receive evidence of family violence (s34W), including expert evidence consisting of ‘social framework evidence’ about family violence where the defendant asserts the offence occurred in circumstances of family violence, and for which any of the defences of self-defence, duress and/or sudden or extraordinary emergency are raised. Where such evidence is received the judge must identify and explain the purpose for which the evidence may and may not be used (s 34Y).
The following cases have admitted opinion or expert evidence about the context of domestic and family violence in relevant criminal proceedings.
Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court
R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
Inkamala v An Assessor under s 24 of the Victims of Crime Act [2022] NTCAT 20 (8 December 2022) – Northern Territory Civil and Administrative Tribunal
R v Falls, Coupe, Cummings-Creed & Hoare [2010] QSC (3 June 2010) summing up - unreported – Queensland Supreme Court
R v Ney [2011] QSC Indictment No 597 of 2008 (8 March 2011) sentence - unreported – Queensland Supreme Court
R v Runjanjic and Kontinnen (1991) 53 A Crim R 362; (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991) – South Australia Supreme Court (Full Court)
Rowan (a pseudonym) v The King [2022] VSCA 236 (28 October 2022) – Victorian Court of Appeal
R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal
R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
Liyanage v Western Australia [2017] WASCA 112 (22 June 2017) – Western Australia Supreme Court (Court of Appeal)
DPP v Williams [2014] VSC 304 (27 June 2014) – Victorian Supreme Court
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 ([33]-[34]). 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 ([36]). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.