Making no-case submissions in self-defence claims for primary victims of intimate partner violence charged with criminal offending

Abstract

Investigators, prosecutors, judges and juries have found self-defence against intimate partner violence (IPV) difficult to perceive on the facts before them because of inaccurate assumptions about the nature of this form of violence. Reforms have focussed on making sure juries have a more accurate understanding of IPV so they can make fairer assessments. These legislative and common law reforms have opened up space for a different kind of legal argument, about the insufficiency of evidence in the state's case against a defendant: no-case submissions. If a state's case is based on a misunderstanding of a defendant's claim about what they were up against when they used force, there is no way of even beginning the legal assessments required by self-defence. No-case arguments are appropriately directed at the structural nature of this problem. This article examines two Australian cases, in which primary victims of IPV were acquitted of charges that they murdered or injured their abusive partner, following submissions that the state had failed to bring evidence capable of proving the defendant had not acted defensively and within reason. These cases show how criminal prosecutions against primary victims of IPV can be challenged.