The Women’s Refuge website quotes bleak statistics that one-third of women experience psychological or physical abuse from their partners in their lifetime. This figure comes from “The New Zealand Economic Cost of Family Violence” by Suzanne Snively (1996). On average, 14 women, six men and 10 children are killed by a member of their family every year and the website also indicates that police are called to around 200 domestic violence situations per day.

84% of those arrested for domestic violence are men. In the year to 30 June 2010, there were 3867 domestic violence cases in the Family Court which each involved at least one child. Our OECD rankings in this area appear to be abysmally low. Police statistics record 25,121 “dwelling assaults” in 2012 compared to 14,696 in 1996 (a 70% increase while the population only increased 19% in that period; the figure had reached 27,100 or over in the years 2009-2010 before the police general policy of more informal action may have had some small effect in this area and not as much as the 22% reduction of people charged generally from 2009 to 2012.) . The annual cost of domestic violence, as an upper limit, based on Suzanne Snively’s work and in today’s dollars would be up to $8 billion per year. So, it is a serious problem and I do not wish to be an apologist for it.

But do we over measure the incidents of family violence? Does the state need to become involved in every case? Currently, there is close to a zero tolerance approach which leaves little room for discretion when it comes to arrest, charging, diversion from criminal responsibility, bail decisions, conviction and name suppression.

When section 59 of the Crimes Act was amended from 21 June 2007, so that the use of parental force for the purposes of correction or punishment was no longer justified, Parliament sought to reassure the public. One quotation from the now Hon. Chester Borrows MP (on the third reading of the Crimes (Substituted Section 59) Amendment Bill on 16 May 2007) was similar to many speeches on the topic: “Those parents who are worried that this legislation will criminalise lightly smacking a child can rest assured that Parliament’s intention is that this should not be the case, and if at some future time they find themselves on such a charge, they should advise counsel to research Hansard and cite these comments in their defence.”

In fact, it is my unscientific experience as a practitioner in the criminal and family areas that this is precisely what is happening and not just in relation to children but in relation to assaults on other family members. My knowledge is informed by the work of colleagues where I practise and in other towns as well as what I read in the law reports. Against that, police tell me that they already do work behind the scenes to try to keep some families, capable of change, out of court and that they have more sophisticated tools to assess the likelihood of repeat offending with those cases being focused on. It’s just that I don’t see that and perceive any such techniques to be inconsistent, with many of the cases I see being low-level in the extreme.

My feeling is that the courts are clogged with thousands of low-level family violence cases. Police and court resources are stretched as a result and the cases become the grist for the legal aid mill. The cases tend to drive some families apart and the result, in certain cases, may be that individuals’ futures are blighted by convictions which stay with them for years and which affect their careers or travel. The recent toughening up of name suppression in section 200 of the Criminal Procedure Act 2011, from 5 March 2012, has made the whole process more public. While there is automatic suppression of the identity of victims in specified sexual cases and where there are child complainants, otherwise the victim’s name may be published unless inter alia, the court is satisfied that publication would be likely to cause undue hardship to the victim.

I give five recent anonymous case studies in which I have been involved, over the last 12 months, to show what I believe is being sacrificed on the altar of zero tolerance of domestic violence:

a)         A mother with no previous criminal convictions is convicted of assaulting her child, contrary to section 194(a) of the Crimes Act. She is a teacher and is censured by the Teacher’s Council. The crime was having her partner apply a leather belt to the backside of her son who had engaged in sexually abusive behaviour to a younger family member. The boy had ADHD with Asperger’s Syndrome. This was until the Court of Appeal entered a discharge without conviction on 18 May 2012 in H (CA 680/2011) v The Queen [2012] NZCA 198.

The partner had, ironically, been discharged at the first appeal stage in the High Court while the mother was not because she had volunteered that she had previously applied the wooden spoon to the boy’s backside on occasion. Otherwise, the distinguishing features were in the mother’s favour.

b)         Another mother also applied an unrelated wooden spoon to a young child, one of a number of her young children whom she was endeavouring to manage. The mother here, too, had no previous convictions. She was forced to move to a family member’s address for a while as part of her bail conditions of 24/7 supervision to prevent repetition. She was a member of a church and other church members were not seen as suitable trackers as they might too have been infected by the same “spare the rod” mentality.

Later, a friend of the mother could move into the family home and the family could be reunited but both trackers had to give up work for the duration and where the mother felt duty bound to repay them for their lost wages. This young family lost its ability to put down a deposit on a home, owing to the ongoing costs of the case. There were care and protection proceedings. There was another lawyer involved. All this, despite there having been no prior notification for the child or, indeed, for any other children of the family. A lengthy restorative justice process (spanning five months) finally led to a conviction and discharge for a charge of assault on a child, again under section 194(a) of the Crimes Act.

c)         This case involved an older man, also church-going and with no previous convictions, who had been married for 35 years. The family was split for close to three months owing to bail conditions imposed on him. Low-level domestic violence was involved both in relation to his wife and to two of his children, towards whom he threw an object.

A lengthy restorative justice process was also involved and the charges of male assaults female and assault on a child x 2 were ultimately resolved by a sentence of come up if called upon within 12 months.

d)        Another case was a brother’s punch to the arm of his brother in what could be said to be circumstances of self-defence after that other brother gave the defendant a number of punches; the other brother was not charged. It was decided to plead guilty to reduce the agony.

Diversion was not suitable but a restorative justice process was again approved and the case did not need to proceed any further through the criminal system. Such a filial punch may have been routine in times gone by, and not meriting a prosecution in the first place, but, instead, there was a nine month delay while the various restorative justice steps were pursued and with a change of address and town. Police, court and lawyer time was all spent to achieve what could have been dealt with informally.

e)         A case of unintended consequences is my final example, where the de facto partner called the police on a man who had been for many years, legally in the country, but who had let his permit slip for a number of reasons. He was performing an important step-father role and the cause of the argument which led to the domestic violence, at a low-level, was an intense personal issue. A break between the couple would have been good but once the police intervened, they were duty bound to pull up the man’s background on their computer and his immigration lack of status was revealed. Being an overstayer, he was deported from the country and the family no longer has the supporting male figure.

These cases share common features. Small flare-ups that may be seen to be private, family affairs but which end up attracting the formality, publicity and severity of the criminal law; and with a host of unwelcome consequences.

Discretions by the police, whether to charge or not, seem to be rarely exercised. Background provocation of the worst verbal kind is ignored. The nature of the charges seems frequently, to be the most grave available eg assault on a child or assault with a weapon or, when a woman is involved as a victim, male assaults female under section 194(b) with a two year imprisonment maximum rather than section 196 Crimes Act common assault (with a one year imprisonment maximum) or even section 9 of the Summary Offences Act 1981 (with a maximum term of six months imprisonment or a fine not exceeding $4,000).

As the Court of Appeal noted in Nuku v The Queen [2012] NZCA 584 at [14], there is a “good deal of scope for prosecutorial discretion and the possibility of overcharging” with the various assault charges that are on the menu in the Crimes Act and there is little to control such prosecutorial discretion. Frequently, both parties are charged in a domestic assault situation such as where there is a reciprocal pushing or slapping and then there are issues of self-defence which tie up the courts with defended hearings.

A recent example is Crann v R [2013] NZCA 48 where the Judge successfully but improperly pressured the Public Defender and her client to abandon a jury trial for male assaults female as the allegation (accused elbowing his partner in the back in bed because she was coughing) was too minor.

The police manual refers to best practice being that amendments and withdrawals of family violence charges are to be discussed with the district family violence coordinator and that extra level of supervision may make it more difficult for there to be flexibility from officers in charge or from prosecutors. Often, even if the complainant wishes the charge withdrawn and there is the involvement of the victim advisor to ensure that the victim was not unduly pressured, such a withdrawal will not be allowed. This approach saw its high point in, admittedly, the serious family violence case of The Queen v EF (CA 339/2012) [2012] NZCA 402 where an out of court statement by the complainant was admissible even though repeatedly disavowed by the witness, including in the witness box at the trial, with the definition of hearsay statement in section 4(1) of the Evidence Act 2006 not making such an out of court statement hearsay because the complainant was available for cross examination.

Before that, the police manual states that if there is sufficient evidence (eg a complaint of assault), offenders who are thought to be responsible for family violence related offences (ie literally) should (except in exceptional circumstances) be arrested. As for whether bail is consented or opposed, the police manual refers not only to section 8 of the Bail Act but also the need to ensure the victim and their family’s safety and for any consideration of any safety plan that may be in place. In some cases, this is overegging the pudding.

As a practitioner, I frequently encounter situations where the victim appears to be further re-victimised by the court process and where there is talk of warrants for the arrest of the complainant if she does not turn up or where she is treated as a hostile witness by the prosecution if she tries to minimise what went on. The state claims to know what is best in people’s private lives. It may be that complainants are at times unfairly pressured to withdraw their evidence and that this practice should be controlled but for the more minor cases, at least, the putative victim should have some say in the process, in keeping with the spirit, if not the letter, of the Victims’ Rights Act 2002 which legislation is actually about information and consultation rather than about giving effective power to the victim. The Crown prosecution guidelines refer to the victim’s attitude as an aspect of the public interest on whether to prosecute but evidential sufficiency is the first criterion and if there is an out of court statement, taken in the heat of the moment, which is admissible in the event of any U-turn, that aspect will nearly always be met.

Then there is the high cost, delay and destruction of intimate family situations being placed on a criminal, adversarial footing. Ordinary people are treated like, well, criminals and they encounter legal and other costs. Victims, as stated, feel slighted by the process when they are required to have the prosecution perpetuated, even when the defendant is taking proper steps. In some cases, they will have to live apart from defendants, despite their views being communicated to the victim advisor, because police or courts will claim to know more about where their interests lie.

No one wants a repetition of the Bristol Killings (see the 1994 Report of the Enquiry into the Family Court Proceedings involving Christine and Alan Bristol) or the Christie Marceau killing on bail (for the sentencing decision, see R v Chand [2012] NZHC 2746) but police prosecutors and the courts have a tendency to be gun-shy about steering cases away from charges or managing the risk of alleged offenders while on bail. Usually, there is a cordon sanitaire for days or weeks while the defendant is in custody (losing his job or income), crashes at a friend’s house or risks seeing their partner on the sly.

A logical place to intervene would be the police diversion stage with a condition for diversion being a stopping violence programme and some kind of monitoring mechanism to ensure it is completed satisfactorily but the police diversion criteria refer, in fact, to diversion for family violence being “rare” and where prior authorisation must be obtained from the police district prosecution manager (which, again, adds a further layer and inflexibility to the process). The family violence coordinator must jointly authorise such a diversion decision with the police district prosecution manager which entrenches the inflexibility.

What is true of low-level cases of domestic violence may be said to be true, on a broader scale, for criminal offences generally. The act may literally fit the label of the offence but the criminal process is an overly large sledgehammer at times. If the marital assault is followed by counselling or the exuberant property damage caused while drinking is repaired, then why do we go that extra step of giving defendants public criminal convictions which hinder their rehabilitation to society? Where are the public interest considerations referred to by Fisher J in Police v Wills (1989) 4 CRNZ 692, 696-697? Why is name suppression not mandatory for the minor cases? This, at a time when, as never before, we trumpet privacy as a human right and the media pursue privacy breaches in other areas?

There should, in my view, also be an open-ended discretion for our judges to dismiss cases as not warranting the intervention of the criminal law – a liberal expansion of lex de minimis non curat - which power may be used as an incentive for a defendant to undertake a suitable programme, pay reparation or perform voluntary work which will allow for the necessary remedial work or penance to be performed off the criminal law balance sheet. This touchstone of behaviour not warranting the intervention of the criminal law has been referred to in the context of disorderly behaviour, at least, by Tipping and McGrath JJ. in Brooker v Police [2007] NZSC 30 at [90] and [130] respectively.

Instead, we toss all our supposed miscreants into the same cauldron and apply to them the same high heat. Ultimately, the plethora of criminal charges for minor offences in the domestic violence area and elsewhere debases the criminal coinage. It contributes to blockages in the system, with, as indicated, many family violence cases being defended on the basis of self-defence or in the hope that a complainant will not follow through with giving evidence in court. It leads to the public, as well as the international community, forming the view that our society is more violent than it really is and that latter consideration may give a clue as to what is going on.

The collection of statistics of violence could be said to offer its own reward for those who benefit from the resources which then flow and with assaults being treated the same whether they originate from a gangland brawl or over a cross word while preparing dinner in the kitchen. The reality and the need for social control is very different for the two types of cases. It is in society’s wider interests that the criminal law should not be involved in isolated family disruptions when the perpetrator is taking steps to change, unless, of course, the violence is repeated or significant.

By Steven Zindel, Senior Partner