Expert or opinion evidence

Note: S64 of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) provides for a new Part 6A, Division 1A of the Evidence Act 1977 (Qld) which will commence on a date to be fixed by proclamation. It will include:

  • s103CC which permits 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 domestic violence on a particular person); and
  • s103CD which abrogates the ultimate issue and common knowledge rules in relation to expert evidence of domestic violence.

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.

S38 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.

S322J 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.

Evidence of Psychiatrists and Psychologists - Examples

  • Osland v R [1998] HCA 75; 197 CLR 316 (10 December 1998) – High Court of Australia
    Battered woman syndrome’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Expert testimony - psychologist’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Self-defence

    Charge/s: Murder

    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 [4]). 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 [50]).

    The psychologist outlined the general characteristics of battered women as follows (at [51]):

    1. they are ashamed, fear telling others of their predicament and keep it secret.
    2. they tend to relive their experiences and, if frightened or intimidated, their thinking may be cloudy and unfocussed.
    3. they have an increased arousal and become acutely aware of any signal of danger from their partner.
    4. they may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
    5. in severe cases, they may live with the belief that one day they will be killed by the other person.

    Issue/s: Some of the issues concerned –

    1. Provocation - Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of provocation’ (see at [155]).
    2. Self-defence – Whether the trial judge erred in ‘failing to make clear the connection between the evidence of "battered woman syndrome", admitted at the trial, and the law of self-defence’ (see at [155]).

    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 [53])

    “…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 [55])

    “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 [56])

    “…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 [60])

    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 [239]). 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.

    Kirby J:

    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 [159]).

    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 [161]).

    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 [161]).

    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 [167]).
  • R v Lorenz [1998] ACTSC 275 (14 August 1998) – Australian Capital Territory Supreme Court
    Assault occasioning bodily harm’ – ‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Exposing children’ – ‘General deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful confinement’ – ‘Where the offender is also a victim

    Charge/s: Robbery with an offensive weapon.

    Trial: Judge only trial.

    Facts: On 20 November 1996, Ms Lorenz (‘the accused’) entered a supermarket and attempted to purchase some cigarettes with her EFTPOS card from the complainant. The transaction could not be completed because there were insufficient funds in the account. The accused maintained she was sure there were funds in the account and re-tried the card but it was again declined. She then left the store. Ten minutes later, the accused returned to the store with a pen knife. She approached the complainant, held the knife out in front of her and said, ‘give me all your fucking money or I’ll slit your throat’. The complainant gave the accused $360 in cash and the accused left the store. While initially denying any involvement, the accused made admissions to the police.

    Counsel for the accused argued that the accused was acting out of duress on the basis of a threat made by Ms Lorenz’s partner on the night before the robbery and repeated the following morning to the effect that if she did not obtain enough money to enable him to re-register his car he would kill her. This threat followed a pattern of violent and threatening behaviour towards the accused over a number of years (See [11]). On the morning of the robbery, the accused, who was pregnant with the couple’s third child, found out that she was unable to get the immediate payment of an advance payment from the Department of Social Security to pay the re-registration.

    Decision and Reasoning: There was some discussion in this case of ‘battered woman syndrome’ (See [26]-[31]). Crispin J accepted that upon failing to receive advance payment from the Department of Social Security, the accused became frightened and confused and the robbery was an impulsive act due to her fear that her partner would kill her. His Honour stated: ‘In my view her failure to attempt to extricate herself from the situation whether by leaving him or otherwise is largely explicable by her fear and confusion. Furthermore, she may have thought that any escape would have been only temporary and that sooner or later [her partner] would have been bound to have caught up with her and carried out his threat’ at [30].

    However, ‘a diagnosis of battered woman syndrome does not of itself give rise to any defence. The law does not recognise any general principle that people should be absolved from criminal conduct because they had been beaten or abused or because a psychological condition caused by such treatment may have led them to commit the offences with which they are charged. Nonetheless, evidence that such a person may have had a psychological condition of this kind may be relevant to several defences known to the law’ at [31].

    Here, counsel for the appellant unsuccessfully attempted to rely on the defence of duress. In the accused’s favour, His Honour found that the threat was effective at the time of the offence, the accused did not fail to take advantage of a reasonable opportunity to render the threat ineffective, and, in light of the extremity of the actual and threatened violence displayed by the accused’s partner, a person of ordinary firmness of mind may have acted in the way the accused did (See [35]-[37]). However, the accused’s partner did not direct the accused to commit the offence and accordingly the defence of duress failed (See [38]-[41]). In the alternative, counsel for the accused attempted to rely on the defence of necessity. However, His Honour held that the imminence of danger fell well short of the required standard for the successful proof of the defence (See [42]-[45]). She was accordingly found guilty.

    The accused left her partner shortly after the robbery and had formed a relationship with another man. She had just turned 23, had three children and was pregnant to her new partner. The new relationship was apparently a happy one. In these circumstances, and to give her the opportunity to start a new life for herself and her children, Crispin J found it appropriate to defer passing sentence on the condition that she enter into recognisance to be of good behaviour for a period of three years.

  • R v Silva [2015] NSWSC 148 (6 March 2015) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Manslaughter by excessive self-defence’ – ‘Physical violence and harm’ – ‘Post-traumatic stress disorder’ – ‘Sentence

    Charge/s: Manslaughter by excessive self-defence.

    Hearing: Sentencing.

    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 [29]-[36]). 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 [38] 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 [40]:

    ‘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 [41]-[43]).

    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 [58]). 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 [59]). The objective seriousness was at the lower end of the range as was the offender’s culpability (see [60]-[61]).

    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 [62]).

    The offender successfully appealed against her conviction to the Court of Appeal. See Silva v The Queen [2016] NSWCCA 284 (7 December 2016).
  • 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
    Battered woman syndrome’ – ‘Coercive control’ – ‘Complex post traumatic stress disorder’ – ‘Consultant psychiatrist evidence’ – ‘Contributory negligence’ – ‘Financial assistance’ – ‘Learned helplessness’ – ‘People with mental illness’ – ‘Physical violence’ – ‘Post traumatic stress disorder’ – ‘Victims of crime

    Matter: Application for review of a decision to award the applicant financial assistance of $13,170.99 under the Victims of Crime Assistance Act 2006 (NT) arising from injuries sustained by the applicant as a result of violent acts committed by her sometime domestic partner.

    Facts: The applicant is a Western Arrarnta woman who is a “deeply traumatised survivor of sustained, repeated and brutal intimate partner violence” which resulted in two children (now teenagers) and numerous incidents of violence resulting in medical or hospital treatment, numerous protection orders to protect the applicant from the offender and numerous sentences of imprisonment imposed on the offender. Many of the documented offences occurred when either or both of the offender and applicant were intoxicated. In 2010 the applicant was awarded $18,750 for physical injuries (partial loss of vision, fractured forearm, scarring to the right arm) caused by the offender between 2006 and 2009.

    A second application was received on 18 December 2014 in relation to physical injuries from assaults by the offender on about 3 occasions, which was amended on 15 January 2015 to include a claim for psychological or psychiatric injuries. The claim took seven years to process, and the offender continued to assault the applicant causing the claim to continue to increase. A consultant psychiatrist provided reports and it was not in dispute that the applicant has sustained a Complex Post Traumatic Stress Disorder (CPTSD) and a Major Depressive Disorder “as a direct result of domestic violence perpetrated buy the offender between 2006 and 2020”, attributing 30 per cent of the CPTSD to the assaults between 2006 and 2009 and 70 per cent to the assaults between 2009 and 2020 [12]. The initial assessment awarded the applicant $13,170.99, with the amount awarded for her physical and psychological injuries reduced by 50 per cent due to the applicant’s contribution to the injuries.


    1. The initial assessment of $35,000 for psychiatric or psychological disorder is inadequate;
    2. the award of $110.99 for financial loss is inadequate; and
    3. the reduction of 50% of the compensation for injuries is excessive.

    Decision and reasoning:

    1. The decision of the respondent to award the applicant $13,170.99 be set aside.
    2. An award of $21,006.99 to the applicant be substituted.

    [63] The Victorian Court of Appeal has recently described battered wife syndrome as “a learned helplessness process in which women who have been abused repeatedly within a relationship they believe they cannot escape from, learn ‘good coping skills as a trade-off for escape.’

    Battered woman syndrome is a subset of PTSD. The label “battered wife syndrome” has not been applied to the applicant in this case. However, in my view the evidence supports a finding that the applicant, who has sustained CPTSD as a result of violence perpetrated against her by a coercively controlling partner over many years, is likely a person whose behaviour in repeatedly returning to live with the offender is in large part due to learned helplessness. Accordingly, this case is to be distinguished on its facts from Lankin v Northern Territory of Australia [(Local Court of the Northern Territory, unreported case number 21337307, 1 September 2015].

    [64] In her written submissions on behalf of the respondent and the intervener, Ms Thompson submits that the applicant “willingly recommenced her relationship with the offender at various times”. I reject that submission. I am satisfied that the applicant recommenced her relationship with the offender reluctantly and unwillingly, and that her decisions to do so were to a significant extent a consequence of the psychological injury the offender had inflicted on her.

    [65] In my opinion, a reduction of 50% of the award to which the applicant is entitled would be unfair and inequitable. The offender and the applicant are not equally culpable or responsible for the injuries she sustained. I consider that the applicant’s behaviour in resuming her relationship with the victim and engaging in the harmful consumption of liquor contributed indirectly to her injuries. In my view, a fair and equitable apportionment of responsibility for the applicant’s injuries is to attribute the offender’s responsibility as being 80%, and the applicant’s as 20%. I find accordingly.”

  • R v Falls, Coupe, Cummings-Creed & Hoare [2010] QSC (3 June 2010) summing up - unreported – Queensland Supreme Court
    Abused person’ – ‘Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Murder’ – ‘Self defence

    Charge: Murder.

    Result: Acquitted.

    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.
  • R v Ney [2011] QSC Indictment No 597 of 2008 (8 March 2011) sentence - unreported – Queensland Supreme Court
    Diminished responsibility’ – ‘Expert evidence - psychiatrist - psychologist’ – ‘Manslaughter’ – ‘Post traumatic stress disorder

    Charge: Manslaughter

    Proceeding: Sentencing

    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."
  • 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)
    Battered woman syndrome’ – ‘Expert evidence - psychologist’ – ‘False imprisonment’ – ‘Grievous bodily harm

    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 [23]:

    ‘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 [24] and [26], 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’.
  • Rowan (a pseudonym) v The King [2022] VSCA 236 (28 October 2022) – Victorian Court of Appeal
    Appeal against conviction’ – ‘Battered wife syndrome’ – ‘Bestiality’ – ‘Common law duress’ – ‘Continuing or ever-present threats sufficient’ – ‘Criminal law’ – ‘Defence of duress’ – ‘Duress of circumstances’ – ‘Expert evidence’ – ‘Incest’ – ‘Indecent act with child under 16’ – ‘Inferred threat’ – ‘People with an intellectual disability’ – ‘People with mental illness’ – ‘Post-traumatic stress disorder’ – ‘Psychologist evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual abuse’ – ‘Specific, overt threat’ – ‘Threat by implication’ – ‘Threat of physical and sexual abuse’ – ‘Victim as (alleged) perpetrator

    Note: a Crown special leave application to appeal to the High Court of Australia was granted on 16 June 2023 and the matter has been listed for hearing in October 2023. The Crown argues that the Court of Appeal “committed an error in principle by extending the law of duress as it applies to both common law and by operation of statute, to cover what is known as duress of circumstances”.

    Charges: Incest x 11; indecent act with a child under 16 x 1.

    Proceedings: Application for leave to appeal against conviction and sentence.

    Facts: The applicant was convicted following trial of 11 counts of incest (s 44(1) and one count of indecent act with a child under 16 (s 47(1)) contrary to the Crimes Act 1958 (Vic). Her partner, JR, was the father of the two complainant daughters and had previously been convicted of sexual offences against them. At the applicant’s trial it was argued that JR had directed the applicant to commit the offences, and she had complied due to an ever-present threat of physical and sexual violence by JR if she did not do what he demanded of her. It was submitted that this constituted duress. The judge, however, ruled that this did not constitute duress, as duress required there to have been a specific or overt threat, not just an ever-present threat. Consequently, duress was not left to the jury and the applicant was convicted of the offences on the basis that she was present and encouraged the daughters to comply with his abuse.

    The applicant and JR’s relationship commenced when the appellant was 18 years old. They lived on a rural property owned by JR’s father and had 4 children. The applicant had a mild intellectual disability and was financially and socially dependent on JR. There was evidence that JR was physically, emotionally and sexually violent to the applicant, he isolated her on the farm, was highly controlling of her movements and had a bad temper. The prosecution accepted that JR’s violence towards the applicant was ‘severe’ [57]. It was reported that the applicant had tried to leave in the past but had returned because she ‘would struggle with the kids’ and that she had not reported the violence to the police because ‘noone would believe her because she was nothing.’ [107] A psychologist gave evidence that the applicant suffered from learned helplessness and low self-esteem characteristic of ‘battered women’s syndrome’, a subset of post-traumatic stress disorder. The applicant’s counsel submitted that ‘JR’s conduct created and maintained a serious, standing threat of significant, ongoing harm, namely, angry subjection to the domineering, violent, rape-embracing regime of life imposed by a brute upon a traumatised, vulnerable person. Under that regime, refusal was said to always have its consequences and this had the effect of overbearing the applicant’s will so that she always submitted to the will of JR.’ [132]

    Grounds: The trial judge erred in ruling that the defence of duress was not open on the evidence and thereby caused a substantial miscarriage of justice.

    Decision and Reasoning: Leave to appeal granted; appeal against conviction upheld; new trial ordered; unnecessary to consider appeal against sentence.

    Kyrou & McLeish JJA:

    Their Honours found there was ‘considerable overlap’ in the elements of each form of the defence [188].

    They made the following remarks regarding element (i) of common law duress in the context of the case:

    [155] We accept that no previous case has expressly accepted the proposition that a continuing or ever present threat — whether overt or tacit — as distinct from a specific, overt threat, is sufficient. However, no case has expressly considered that proposition and rejected it. …. Further, the analysis of the Full Court of the Supreme Court of South Australia in Runjanjic [(1992) 56 SASR 114] is consistent with the proposition that a continuing or ever present threat may be sufficient.

    [156] In our opinion, a continuing or ever present threat which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out. We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence. In this context, it is relevant to note the additional limiting factors identified in element (iii) [common law duress above] which requires that the threat be present and continuing, imminent and impending at the time each offence is committed.

    [169] Having regard to the above features of the relationship between JR and the applicant … it would have been open to the jury to conclude that it was reasonably possible that the applicant understood that there was a continuing or ever present threat of physical and sexual violence (including rape) by JR if she did not do what he demanded of her. If the jury reached this conclusion, it would have been open to them to find that it was reasonably possible that, when JR requested the applicant to be involved in each of the sexual offences against the complainants, she understood that, if she did not comply, he would physically and sexually harm her, including by raping her.

    [174] We are also of the opinion that it is not fatal in this case that there is no direct evidence that JR told the applicant shortly prior to each offence that, unless she performed the acts that constitute each of the charged offences, he would physically and sexually abuse her. That is because it would be open to the jury to infer that this was a reasonable possibility based upon the history of the relationship between JR and the applicant as set out in the …[evidence].

    Their Honours made the following remarks regarding element (ii) of common law duress in the context of the case:

    [180] A person of ‘ordinary firmness of mind’ in the present case would be a female domestic partner of JR who was of the applicant’s age and who has lived with JR in the same circumstances as the applicant and has endured the physical and sexual abuse that she has experienced. That person would also have the same isolated lifestyle as the applicant and possess her knowledge of JR’s personality and behaviour. However, that person would not have the applicant’s history of sexual abuse as an adolescent or her mild intellectual disability.

    There was evidence that the AR suffered ‘battered woman syndrome’:

    [181] In our opinion, upon the basis of the [evidence], it would have been open to the jury to conclude that there was a reasonable possibility that a person of ordinary firmness of mind having the characteristics described… above would have been likely to:

    1. develop a battered woman syndrome with the consequence of learned helplessness, and yield to JR’s continuing or ever present threat in the way the applicant did; and
    2. not seek to escape the situation.

    Their Honours then briefly considered elements (iv), (v), (vii) and (viii) of Common Law duress in turn but did not consider element (vi) because the accused was not charged with murder, or any other crime excepted from common law duress:

    [184] In relation to element (iv), the jury could find that there was a reasonable possibility that the applicant reasonably apprehended that the threat would be carried out based upon JR’s history of punishing her if she sought to disobey him.

    [185] In relation to element (v), the jury could find that there was a reasonable possibility that the applicant was induced by the continuing or ever present threat to commit the charged offences based upon our previous analysis regarding her will being overborne by that threat.

    [186] In relation to element (vii), the jury could find that there was a reasonable possibility that the applicant did not, by fault on her part when free from the duress, expose herself to its application. That is because the threat was a continuing or ever present threat and the jury could conclude that there was a reasonable possibility that the applicant was not free of the threat at any time during the period of the offending.

    [187] In relation to element (viii), the jury could find that there was a reasonable possibility that the applicant did not have the means, with safety to herself, of preventing the execution of the threat. That is because the jury could conclude that there was a reasonable possibility that the applicant’s battered woman syndrome rendered her incapable of escaping from her abusive relationship with JR.

    McLeish JA agreed with the reasons given by Kyrou and Niall JJA in respect of elements of the defence of duress’ both under common law and under 32O.’ [228] McLeish JA also observed:

    [208] It is not necessary that the threat which underpins a defence of duress be the subject of direct evidence of the accused. There is no reason in principle why the requisite threat might not be found by a process of inference from other evidence. That inference may, in principle, be drawn from evidence about an ongoing course of conduct. The threat may also be conveyed to the accused by implication rather than express words. Naturally, the defence may very well be weaker in the absence of direct evidence from the accused; but that is not the only way it may be raised.

Evidence of a Social Worker - Examples

  • R v Kina [1993] QCA 480 (29 November 1993) – Queensland Court of Appeal
    Aboriginal and Torres Strait Islander people’ – ‘Battered woman syndrome’ – ‘Expert evidence - social worker’ – ‘Fresh evidence’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    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.


    1. The appellant did not receive a fair trial and a miscarriage of justice occurred because of problems of communication between the appellant and her lawyers which led to fundamental errors at trial.
    2. There was fresh evidence of such a nature that, had it been placed before the jury who decided the case, there was a substantial possibility of acquittal.
    3. The fresh evidence was of such a nature that refusal of it would lead to a miscarriage of justice.

    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”.
  • R v Yeoman [2003] NSWSC 194 (21 March 2003) – New South Wales Supreme Court
    Battered woman syndrome’ – ‘Difficulty leaving an abusive relationship’ – ‘Expert evidence - psychosocial report - specific experience in drug and alcohol related domestic violence issues’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Where the victim is an offender’ – ‘Women

    Charge/s: Manslaughter.

    Hearing: Sentencing.

    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 [32]-[35]). Ms Castles commenced her report by explaining the nature of domestic violence and stated at [32] 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 [33]-[34]).

    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 [50]). 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 [45]). Buddin J also derived assistance from cases involving ‘battered spouse or partner syndrome’ (See [48]).

  • Liyanage v Western Australia [2017] WASCA 112 (22 June 2017) – Western Australia Supreme Court (Court of Appeal)
    Expert evidence’ – ‘Risk’ – ‘Social context evidence’ – ‘Social worker

    Charges: Manslaughter x 1.

    Appeal type: Appeal against conviction and sentence.

    Facts: The appellant and the deceased were married. The appellant killed the deceased by striking him with a mallet [1]. The appellant gave evidence that the deceased was violent and controlling, and regularly sexually assaulted her [2]. She had no memory of the night on which she killed the deceased [47]. At trial, she was found not guilty of murder, but guilty of manslaughter [4]. She was sentenced to 4 years’ imprisonment [5].

    Issues: The appellant appealed on several grounds including that the trial judge should not have excluded evidence from a social worker about domestic violence [7].

    Decision and Reasoning:

    All grounds of appeal were dismissed.

    Social worker’s risk assessment evidence

    The social worker’s risk assessment evidence was in relation to the psychological impact of prolonged exposure to domestic violence (popularly known as ‘battered women’s syndrome’). The evidence was based on a risk assessment which used actuarial risk assessment tools and clinical guides, including the ‘Power and Control Wheel’ (see Chapter 4 Context Statement) ([108]). The Court held that: the evidence did not explain the appellant’s state of mind ([123]-[129]); that the evidence did not quantify the extent of the risk, and did not specifically address the question of the risk of homicide ([130]-[148]); and the actuarial tools had not ‘been accepted by the relevant scientific community’ as defining the risk of homicide ([149]-[154]).

    Social context evidence

    The Court remarked that there is a body of academic literature that is supportive of ‘social context evidence’ in family violence cases ([160]). This may include evidence about the history of the parties’ relationship, the defendant’s culture, the non-psychological impediments to leaving a violent relationship ([160]-[165]). However, the Court emphasised that in order for contextual evidence to be admitted, counsel must ‘explain precisely and specifically how it is relevant to the issues which the jury are required to decide’ ([166]).

    The social worker gave evidence in relation to the dangers of leaving a domestic violence relationship ([169]-[177]) and the exercise of power and control which characterises domestic and family violence ([178]-[183]). The Court held that the evidence was too general, and would not assist the jury beyond the knowledge and inferences able to be drawn by a reasonable person ([177],[183]).

Evidence of an Academic - Examples

  • DPP v Williams [2014] VSC 304 (27 June 2014) – Victorian Supreme Court
    Aggravating factor’ – ‘Defensive homicide’ – ‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Expert evidence - academic’ – ‘History of violence’ – ‘Lack of disclosure of family violence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Defensive Homicide.

    Hearing: Sentence.

    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 [20] 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’ ([26]). 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’ ([32]).

    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.