For additional information in relation to women or men who are transgender(ed) or transsexual (that is, who were originally living as the opposite gender) — see Section 9.

7.1 Some statistics

7.1.1 Population

  • According to the 2011 Census:[1]

    • There were slightly more females resident in NSW than males: 3.5 million females (50.7%), compared with 3.4 million males (49.3%).

    • There were slightly more Aboriginal females resident in NSW than males: 87,540 Aboriginal females (50.7%), compared with 85,080 Aboriginal males (49.3%).

    • Most NSW females (2.2 million) lived in the Greater Sydney region.

    • Almost a third (31.4%) of NSW females were born overseas. The top five overseas countries of birth were England, China, New Zealand, India and the Philippines.

    • Half of NSW females were in a registered marriage and 8.3% of people in NSW were in a de facto marriage.

7.1.2 Employment

  • As at January 2013:[2]

    • Almost twice as many males in NSW (1.7 million) worked full time, compared with females (0.9 million).

    • The participation rate for females in NSW was 56.9%, compared with 70.1% for males.

    • More females in NSW (0.75 million) worked part-time than men (0.3 million)[3]

    • 45% of females working in NSW were employed on a part-time basis, compared with 17% of males. By comparison, in 2012, 41% of females working in NSW were employed on a part-time basis, compared with 15% of males.[4]

  • In 2010, 28% of NSW females were employed on a casual basis, compared with 21% of males.[5]

  • As at November 2012, NSW female workers had a higher rate of underemployment than males — 9.5% compared with 5.3%. The labour force underutilisation rate (unemployed and underemployed persons expressed as a proportion of workforce) for females was higher than males — 13.9% compared with 10.5%.[6]

  • In September 2012, of the just over 6 million people in Australia aged 15 years and over who were not in the labour force (representing 33% of the population), 60% were women.[7]

  • Gender pay gap:

    • As at November 2012, the weekly gender wage gap for people working full-time ordinary hours in NSW was 16% (an increase of two percentage points from November 2011): NSW females working full-time ordinary hours each earned an average of $1,246, compared with males, who earned $1,486 each week.[8]

    • In 2012, the median full-time starting salaries for graduates in Australia were $55,000 for males (up from $52,000 in 2011), compared with $50,000 for females (no change from 2011). For postgraduate salaries the gap for starting salaries was more substantial, with females earning 85% of male salaries.[9]

    • In 2010, the gender pay gap for the NSW public service was 6.7%.[10]

  • Superannuation:

    In 2009–2010:[11]

    • although women live longer and have longer retirements to fund, women held around 37% of total superannuation account balances, compared with men who held 63%

    • the average account balance was $40,475 for women and $71,645 for men.

  • Unpaid domestic work:

    • Women’s unpaid contribution to household work and child care activities is often under-valued in relation to such matters as personal injury compensation, succession law, and in commercial contexts (for example, in disputes about signing of guarantees).[12]

    • Between 1992 and 2006 women assumed a greater role in the workplace. Despite this, they spent around the same amount of time on household work in 2006 as they had in 1992. While men were doing slightly more household work than in the past, women still did around 1.8 times as much as men in 2006, compared with twice as much in 1992. While men took on a greater role with child care than in the past, in 2006 women on average spent more than two and a half times as long caring for children as men did.[13]

    • As at 2010, full-time women workers in NSW with dependants spent on average 17 hours per week doing unpaid housework, compared with men who spent on average 7 hours per week. Full-time working mothers in NSW spent on average 15 hours per week looking after children, compared with full-time working fathers who spent on average 10 hours per week.[14]

7.1.3 Education

  • In May 2012, nationally more males (4.2 million) than females (4.1 million) aged 15–64 years had a non-school qualification. A higher proportion of males (22%) than females (13%) reported their level of highest educational attainment as Certificate III or IV. However, a higher proportion of females (27%) than males (24%) had obtained a bachelor degree or higher qualification.[15]

  • In 2012, nationally women held the majority of bachelor degrees (54.7%), while more men than women have postgraduate degrees (52.8% are held by men).[16]

7.1.4 Female victims

  • General:

    • Insufficient account is taken of the realities of the female experience of sexual assault and domestic violence, and women are assessed from the male standpoint of what a “reasonable man” would have done rather than what a reasonable woman would have done given the circumstances.[17]

  • Domestic violence:

    • As a significant proportion of domestic violence incidents go unreported, it is difficult to gauge the full extent of domestic violence. Less than half of respondents to a 2008–2009 Australian Bureau of Statistics survey had reported the domestic assault to police.[18] There is some suggestion that the underreporting could be as low as one in three.[19]

    • The number of female domestic violence victims remained stable over the six years to 2010–2011 (around 20,000 per year).[20]

    • In 2010, females were more likely to be victims of a domestic assault in NSW than males (69.2% compared with 30.8%). The disparity is greater for younger females (18–24 years).[21]

    • In 2010, males were more likely than females to be the offenders in both domestic (82.1% compared with 17.9%) and non-domestic assault (75.6% compared with 24.4%).[22]

    • In 2010, almost half (48.3%) of all domestic assaults involved a female partner and a male offender who were in a partner relationship.[23]

    • In 2010, Indigenous women were vastly over-represented as victims of domestic assault. The rate of domestic assault for Indigenous women was more than six times higher than for non-Indigenous women.[24]

  • Domestic homicide:

    • Between January 2003 and June 2008:[25]

      • 53% (115 of 215) of domestic violence homicide victims were female[26]

      • intimate partner homicide accounted for 61% of female domestic homicides, compared with 23% of male domestic homicides[27]

      • while Aboriginal people comprise around 2% of the total NSW population, over 9% of domestic violence homicide victims were recorded as Aboriginal[28]

      • 77% (160) domestic violence offenders were male.[29]

    • In 2007–2008, two-thirds of female domestic homicide victims in NSW, and over half (54%) of all female homicide victims in NSW, were killed by a current or former intimate partner. By comparison, 25% of male domestic homicide victims and 8% of male homicide victims overall were killed by a current or former intimate partner.[30]

  • Sexual assault:

    • Women are nearly five times more likely to be sexually assaulted than men.[31]

    • As with domestic violence, a significant proportion of sexual assaults are never reported (61%).[32]

    • In 2011, there were 6,001 victims of sexual assault in NSW of whom 5,007 were female. Of these, 10% were victimised by a partner.[33]

    • In 2009–2010, 98% of NSW adult offenders convicted of sexual assault were male.[34]

7.1.5 Female offenders[35]

  • There are significantly fewer female offenders in NSW than male offenders: just over one-fifth of NSW offenders (21%) in 2011–2012 were female.[36]

  • In the 10-year period to June 2009:

    • Female offenders were most likely to shoplift (15.0%), commit non-domestic (8.6%) and domestic violence assault (5.1%), fraud (7.2%) and possess/use drugs (6.6%), compared with male offenders who were most likely to commit domestic violence assault (8.1%) and non-domestic violence assault (7.1%), possess/use drugs (8.0%), maliciously damage property (7.0%) and offensive behaviour (4.9%).[37]

    • The number of females offending in NSW increased by 15%, while the number of males offending remained statistically stable.[38]

    • The number of juvenile female offenders increased by more than a third, compared with juvenile males (less than 10%).[39]

    • The nature of female offending has changed with females and juvenile females committing more violent crimes than they did 10 years ago.[40]

  • At the end of June 2012 there were 638 women in NSW correctional centres, representing just under 7% of the total inmate population. Of these, almost a third (189 or 29.6%) identified as Aboriginal.[41]

  • In 2012, the median aggregate sentence length (nationally) for adult female prisoners was 24.2 months, compared with 39.9 months for adult male prisoners.[42]

  • In 2010–2011, 22.5% of full-time female inmates were born outside Australia, with the largest birth country represented being Vietnam, accounting for 7.7%.[43]

  • In 2012, 37.7% of female prisoners had been imprisoned previously, compared with 52.8% of male prisoners.[44]

  • Of women in custody in 2009:

    • 49.2% were mothers of children aged 16 or under[45]

    • 44.9% had experienced domestic violence or abuse as an adult,[46] and 65.8% had been involved in at least one violent relationship[47]

    • 39.8% consumed alcohol in a hazardous or harmful way in the year prior to incarceration, with 15.7% showing signs of dependent drinking[48]

    • 77.8% had used an illicit drug and 52.4% had injected drugs[49]

    • 19.5% had been admitted to a psychiatric unit or hospital,[50] and 27.2% had attempted suicide[51]

    • 44.7% left school prior to completing year 10 at an average age of 14.5 years[52]

    • 32.2% were in care before the age of 16[53]

    • 67.3% were unemployed in the six months prior to incarceration; and of these, 24.6% had been unemployed for 10 or more years.[54]

  • Sentencing:[55]

    • In 2010, the most common penalties imposed on female offenders by the NSW Local Court were fines (43.1%), s 9 bonds (17.5%) and s 10 bonds (14.6%), compared with male offenders: fines (49%), s 9 bonds (16.3%) and s 10 bonds (9.6%).[56]

    • In 2010, the most common penalties imposed on female offenders by the NSW higher courts (District and Supreme Courts) in 2010 were full-time imprisonment (52.4%), suspended sentence (25.3%) and s 9 bonds (15.9%), compared with male offenders: full-time imprisonment (72.0%); suspended sentences (16.6%) and s 9 bonds (6.2%).[57]

  • While there has been limited empirical research in Australia of disparities in sentencing outcomes for female and male offenders, it appears that female offenders fare better in criminal prosecutions. Female offenders are less likely than male offenders to be prosecuted if detected, stand a greater chance of acquittal if charged, are more likely to be leniently sentenced if convicted and usually serve less time once imprisoned.[58]

7.1.6 Legal aid

  • Due to the relative funding priorities given to criminal matters over family and civil matters, the vast majority of Legal Aid clients are men. Overall and consistently with previous years, in the period 2011–2012, only 26% of Legal Aid clients in NSW were female.[59]

7.2 Some information

7.2.1 Gender, gender inequality and gender bias in court

The statistics in 7.1 above, while relatively general, demonstrate considerable gender inequality within NSW. Women tend to fare worse than men in relation to their employment status, income level, the amount of unpaid household work and childcare activities they engage in, the type and nature of violence committed against them, and in relation to some legal proceedings.

It is also the experience of the Judicial Commission of NSW and other complaint bodies that many more women than men complain of gender bias in relation to the legal system and legal proceedings.

It is true that not all women fare badly in comparison to men, or feel discriminated against in comparison with men. However, the general existence of gender inequality or bias in our society means that, for many women, unless appropriate account is taken of the examples of potential gender bias listed at 7.2.2 below, a woman may:

  • feel uncomfortable, resentful or offended by what occurs in court

  • feel that an injustice has occurred

  • in some cases be treated unfairly and/or unjustly.

Section 7.3, below, provides additional information and practical guidance about ways of treating women so as to reduce the likelihood of these problems occurring.

7.2.2 Examples of possible gender bias, or a perception of gender bias, in relation to court proceedings

No judicial officer would consciously discriminate against women (or men). However, it is relatively easy to act unconsciously in a way that causes offence to women generally, or to a particular woman, or that is (or is perceived as) discriminatory or gender biased.

Some examples of situations where gender bias could occur, or be perceived to occur, are:

  • Using language and terminology carelessly and/or inappropriately — that is, using language, statements or comments that create, or could create, a perception of gender bias — see 7.3.2 below.

  • Assessing a woman against how a man would have acted or felt in that situation — see 7.3.3 below.

  • Assessing a woman against how a “normal” woman ought to behave — see 7.3.3 behave.

  • Showing a lack of understanding of the nature of domestic violence or sexual assault, and/or of the impact of domestic violence or sexual assault on women — see below.

  • Showing a lack of understanding of the value of household work and child care activities — see 7.3.6 below.

  • Not taking appropriate account of the statistical differences between men and women in relation to such matters as income level, household work and child care activities — see 7.1 above and 7.3.6 below.

  • Implying that a woman makes a less credible witness than a man — see 7.3.2 and 7.3.5 below.

7.3 Practical considerations[60]

7.3.1 Modes of address

7.3.2 Language and terminology

7.3.3 The impact of gender on any behaviour relevant to the matter(s) before the court General considerations Domestic violence matters and sexual assault matters Long-term or repeated abuse as a contributory factor to violence, and “battered woman syndrome”

A few women respond to long-term or repeated domestic abuse, assault or threats by their partner by assaulting, or in very rare cases, killing,[74] their partner.

In this situation, evidence of what has been termed “battered woman syndrome” has been used to bolster defences such as provocation,[75] self defence (or excessive self-defence)[76] and duress[77] by providing the court with an insight into the effects of longterm, repeated domestic violence on a woman’s reactions to threats, provocation and physical or mental cruelty from her partner.[78]

[T]he syndrome is not itself a defence but it has the potential to assist decisionmakers better to understand the circumstances preceding a woman’s eruption into lethal violence, it may remove sources of misunderstanding that might make decision-makers inappropriately suspicious of a woman’s account of her relationship and it may give some insight into what was happening in the woman’s thought processes when she had resort to lethal force.[79]

Evidence of battered woman syndrome may also be used:

  • by way of mitigation in sentencing[80]

  • as a factor to be considered in the exercise of prosecutorial discretion[81]

  • to bolster defences in other cases (for example, social security frauds, armed robbery and shoplifting)

  • to assess a woman’s state of mind in custody disputes, civil actions and where a battered woman is charged as a criminal accomplice.[82]

There is considerable controversy about the wisdom of using “battered woman syndrome” to support a defence argument.[83] The main concern is that the use of the notion of a “syndrome” pathologises the woman in question, rather than simply focusing on the circumstances in which the offence occurred and whether (in the context of the defence of self defence) her actions were reasonable.[84]

It is also worth noting Kirby’s J’s citation, with approval, of the remarks of L’HeureuxDube J in the Canadian Supreme Court:

The legal inquiry into the moral culpability of a woman who is, for instance, claiming self-defence must focus on the reasonableness of her actions in the context of her personal experiences, and her experiences as a woman, not on her status as a battered woman and her entitlement to claim that she is suffering from “battered woman syndrome”.[85]

This statement appears to accord with the criticism of the use of the term “battered woman syndrome”, in that it suggests an approach of looking at the reasonableness or otherwise of the woman’s actions, given the particular circumstances, as opposed to establishing the woman’s irrationality or the existence of a medical or psychiatric “syndrome” at the time.

7.3.4 Timings of proceedings, breaks and adjournments

7.3.5 Directions to the jury — points to consider

7.3.6 Sentencing, other decisions and judgment or decision writing — points to consider

7.4 Further information or help

7.5 Further reading

Violence against women

Judicial Commission of NSW, Local Courts Bench Book, 1988–; “Apprehended violence orders” at [25-000].

Judicial Commission of NSW, Sentencing Bench Book, 2006– “Particular types of personal violence” at [50-130].

S Indyk, H Donnelly and J Keane, Partial defences to murder in New South Wales 1990–2004, Monograph 28, Judicial Commision of NSW, 2006.

D L McMillan, But he says he loves me, Allen & Unwin, Sydney, 2007.

D L McMillan and A David, “The domestic violence dynamic” (2006) 18(10) JOB 81.

S Meyer, “Why women stay: a theoretical examination of rational choice and moral reasoning in the context of intimate partner violence” (2012) 45(2) ANZJ Crim 179.

G Sheehan and B Smyth, “Spousal violence and post-separation financial outcomes” (2000) 14 AJFL 102.

RA Sculler, BM McKimmie and T Janz, “The impact of expert testimony in trials of battered women who kill” (2004) 11(1) Psychiatry, Psychology and the Law 1.

JJ Spigelman, “Violence against women: the dimensions of fear and culture” (2010) 84 ALJ 372.

J Stubbs and J Tolmie, “Falling short of the challenge? A comparative assessment of the Australian use of expert evidence on the battered woman syndrome” (1999) 23 MULR 709.

Female offending

M Cain and A Howe (eds), Women, crime and social harm: towards a criminology for the global age, Hart Publishing, Oxford, 2008.

M Segrave and B Carlton, “Women, trauma, criminalisation and imprisonment …” (2010) 22(2) CICJ 287.

M Stathopoulis et al, Addressing women’s victimisation histories in custodial settings, ACSSA Issues, No 13, 2012, at www.aifs.gov.au, accessed 26 March 2013.

J A Warner, Women and crime: a reference handbook, ABC-CLIO, California, 2012, Ch 2: “Problems, controversies and solutions.”

Sentencing of females

P Gallagher, P Poletti and I MacKinnell, Sentencing disparity and the gender of juvenile offenders, Research Monograph 16, Judicial Commission of NSW, Sydney, 1997.

C Hedderman and L Gelsthorpe, Understanding the sentencing of women, Home Office Research Study 170, Home Office Research and Statistics Directorate (UK), 1997, at http://webarchive.nationalarchives.gov.uk, accessed 26 March 2013.

P Poletti, “Sentencing female offenders in New South Wales”, Sentencing Trends, No 20, Judicial Commission of NSW, Sydney, 2000.


Anti-Discrimination Board of NSW, Annual reports, at www.lawlink.nsw.gov.au accessed 10 April 2013.

G Sheehan and J Hughes, Division of matrimonial property in Australia, Research Paper No 25, Australian Institute of Family Studies, March 2001.

7.6 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 11 contains information about how to send us your feedback.

[1] Australian Bureau of Statistics (ABS), 2011 Census, Canberra, 2012, at www.censusdata.abs.gov.au, accessed 4 April 2013.

[2] ABS, Labour force, Australia, Jan 2013, Canberra, ABS cat no 6202.0, January 2013, p 10, at www.abs.gov.au, accessed 4 April 2013.

[3] ibid.

[4] NSW, Department of Family and Community Services, Women NSW, Women in NSW 2012, Report, Sydney, p 67, at www.women.nsw.gov.au, accessed 4 April 2013.

[5] ibid.

[6] ABS, Labour force, Australia, Jan 2013, Canberra, ABS cat no 6202.0, January 2013, p 26, at www.abs.gov.aut, accessed 4 April 2013.

[7] ABS, Persons not in the labour force, Australia, September 2012, Canberra, ABS cat no 6302.0, March 2013, at www.abs.gov.au, accessed 4 April 2013.

[8] ABS, Average weekly earnings, Australia, Canberra, ABS cat no 6302.0, November 2012, Table 11A, Average weekly earnings, New South Wales (dollars) — trend, at www.abs.gov.au, accessed 13 March 2013; Women in NSW 2012, above n 4, p 76. See also S Baldwin et al, Profile of women’s employment in NSW: trends and issues, Final Report, Prepared for the Office for Women’s Policy NSW Department of Premier and Cabinet, 25 November 2010 (Revised August 2011), at www.women.nsw.gov.au/publications/profile_of_womens_employment_in_nsw, accessed 4 April 2013.

[9] Workplace Gender Equality Agency, GradStats – starting salaries, January 2013, at www.wgea.gov.au, p 1, accessed 4 April 2013.

[11] Association of Superannuation Funds of Australia Limited, Average super balances boosted despite volatile economy, media release, 19 September 2011, at www.superannuation.asn.au/media-release-19september-2011, accessed 23 April 2013; J Collett, “How to make it super for women”, Busselton — Dunsborough Mail, 23 April 2013, at www.busseltonmail.com.au, accessed 24 April 2013.

[12] R Graycar and J Morgan, The hidden gender of law, 2nd ed, 2002, The Federation Press, Annandale pp 303–327, and empirical research referred to therein.

[13] ABS, Trends in household work, Australian Social Trends, ABS cat no 4102.0, Canberra, 2009, at www.ausstats.abs.gov.auf, accessed 4 April 2013.

[14] Women in NSW 2012,, above n 4, p 69, citing Melbourne Institute of Applied Economic and Social Research, The household, income and labour dynamics in Australia (HILDA) survey, Wave 10, 2010, at www.melbourneinstitute.com/hilda/, accessed 4 April 2013.

[15] ABS, Education and work, ABS cat no 6227.0, Canberra, 2012, at www.abs.gov.au, accessed 4 April 2013.

[16] Workplace Gender Equality Agency, GradStats — starting salaries, January 2013, at www.wgea.gov.au, p 4, accessed 4 April 2013.

[17] Graycar and Morgan, above n 12.

[18] NSW, Legislative Council, Standing Committee on Social Issues (Chair: N Blair), Domestic violence trends and issues in NSW, Report No 46, August 2012, p 8, at www.parliament.nsw.gov.au, accessed 4 April 2013.

[19] ibid. See also ABS, Personal safety survey 2005, ABS cat no 4906.9, Canberra, 2006, pp 8, 21, at www.ausstats.abs.gov.au, accessed 4 April 2013.

[20] NSW, Department of Family and Community Services, Women NSW, Women in NSW 2012 — safety and access to justice, Fact Sheet No 6, August 2012, p 1.

[21] K Grech and M Burgess, Trends and patterns in domestic violence assaults: 2001–2010, Issue Paper No 61, NSW Bureau of Crime Statistics and Research (BOCSAR), Sydney, 2011, p 6, at www.bocsar.nsw.gov.au, accessed 4 April 2013.

[22] ibid, p 7.

[23] ibid. See also ABS, Recorded Crime — Victims, Australia, 2011, ABS cat no 4501.0, Canberra, 2013, at www.abs.gov.au, accessed 4 April 2013.

[24] ibid, p 8.

[25] C Ringland and L Rodwell, Domestic homicide in NSW, January 2003June 2008, Issue Paper No 42, BOCSAR, Sydney, 2009, at www.lawlink.nsw.gov.au, accessed 4 April 2013.

[26] ibid, p 4.

[27] ibid, p 5.

[28] ibid.

[29] ibid, p 6.

[30] Attorney General and Justice (NSW), Domestic Violence Death Review Team, Annual report 2010–2011, Sydney, 2011, pp 11, 13 and Figure 4, at www.coroners.lawlink.nsw.gov.au, accessed 4 April 2013.

[31] Women in NSW 2012, above n 4, p 122. See also Graycar and Morgan, above n 12.

[32] Women in NSW 2012, above n 4, p 120.

[33] ABS, Recorded crime — victims, Australia, 2011, ABS cat no 4501.0, Canberra, 2013, at www.abs.gov.au, accessed 4 April 2013.

[34] Women in NSW 2012, above n 4, p 122.

[35] Further information about facilities and programs for women in custody in NSW will be available on the Judicial Commission of NSW’s Services Directory at https://jirs.judcom.nsw.gov.au.

For a discussion of women’s offending pathways, see Corrective Services NSW, Final submission to the NSW Law Reform Commission Review of the Crimes (Sentencing Procedure) Act 1999, October 2012, at www.correctiveservices.nsw.gov.au, accessed 4 April 2013; M Segrave and B Carlton, “Women, trauma, criminalisation and imprisonment …” (2010) 22(2) CICJ 287; M Stathopoulis et al, “Addressing women’s victimisation histories in custodial settings”, ACSSA Issues, No 13, 2012, at www.aifs.gov.au, accessed 4 April 2013; JA Warner, Women and crime: a reference handbook, ABC-CLIO, California, 2012, pp 37ff; SS Simpson, JL Yahner, L Dugan, “Understanding S L women’s pathways to jail: analysing the lives of incarcerated women” (2008) 41(1) ANZJ Crim 84; L Forsythe and K Adams, Mental health, drug use and crime: does gender matter?, Trends & Issues in Crime and Criminal Justice, No 384, November 2009, Australian Institute of Criminology, Canberra, at www.aic.gov.au, accessed 4 April 2013.

[36] ABS, Recorded crime — offenders, 2011–12, ABS cat no 4519.0, Canberra, March 2013, at www.abs.gov.au, accessed 4 April 2013.

[37] J Holmes, “Female offending: has there been an increase?”, Crime and Justice Statistics, Issue Paper No 46, April 2010, BOCSAR, p 3, at www.lawlink.nsw.gov.au, accessed 4 June 2014.

[38] ibid.

[39] ibid, p 10.

[40] ibid.

[41] https://correctiveservices.nsw.gov.au/offender-management/offender-services-and-programs/womenoffenders/_nocache, accessed 4 April 2013. For trends in the gender of the inmate population from 1982– 2012, see S Corben, NSW inmate census 2012: summary of characteristics, Statistical Publication No 39, Corrective Services NSW, December 2012, pp 68–69, at www.correctiveservices.nsw.gov.au, accessed 4 April 2013. For a discussion of Indigenous female offenders and prisoners, see L Bartels, Indigenous women’s offending patterns: a literature review, AIC Reports, Research and Public Policy Series, No 107, 2010, at www.aic.gov.au/documents, accessed 8 April 2013.

[42] ABS, Gender indicators, Australia, Jan 2013, ABS cat no 4125.0, Canberra, 2013, at www.abs.gov.au, accessed 4 April 2013.

[43] Corrective Services NSW, Corporate Research, Evaluation & Statistics, Female offenders: a statistical profile, 4th edn, December 2011, at www.correctiveservices.nsw.gov.au, accessed 4 April 2013.

[44] ABS, Prisoners in Australia, 2012, ABS cat no 4517, Canberra, December 2012, p 42, at www.abs.gov.au, accessed 4 April 2013.

[45] D Indig et al, 2009 NSW inmate health survey: key findings report, Justice Health (NSW), Sydney, 2010, p 39, at www.justicehealth.nsw.gov.au, accessed 4 April 2013.

[46] ibid, p 70.

[47] ibid, p 131.

[48] ibid, p 103.

[49] ibid, pp 107, 111.

[50] ibid, p 137.

[51] ibid, p 141.

[52] ibid, pp 32–33.

[53] ibid, p 30.

[54] ibid, p 34.

[55] See also NSW Law Reform Commission (NSWLRC), Special categories of offenders, Sentencing Question Paper 11, July 2012, pp 11–13, at www.lawlink.nsw.gov.au, accessed 5 April 2013. For a discussion of the issues relating to the sentencing of Indigenous female offenders, see L Bartels, Indigenous Justice Clearinghouse, Sentencing of Indigenous women, Brief 14, November 2012, at www.indigenousjustice.gov.au, accessed 5 April 2013.

[56] Unpublished data from the Judicial Commission of NSW; Crimes (Sentencing Procedure) Act 1999, ss 9–10. These figures are overall figures and do not take into account the effect of sentencing factors on the penalties imposed. These figures also include offenders ordered to enter a recognizance under the Crimes Act 1914 (Cth), s 20(1)(a), and offenders discharged without proceeding to conviction under s 19B.

[57] Unpublished data from the Judicial Commission of NSW, Crimes (Sentencing Procedure) Act, s 12. These figures are overall figures and do not take into account the effect of sentencing factors on the penalties imposed. These figures also include offenders who were released forthwith on recognizance under the Crimes Act 1914, s 20(1)(b).

[58] Research in both South Australia and Victorian has found gender differences in sentencing outcomes (with female offenders receiving more lenient penalties) and each explore the reasons for sentencing disparities: S Jeffries and CEW Bond, “Sex and sentenci g disparity in South Australia’s higher courts” (2010) 22(1) CICJ 81; Sentencing Advisory Council (Vic), Gender differences in sentencing outcomes, July 2010, at www.sentencingcouncil.vic.gov.au, accessed 5 April 2013. See also Sentencing: State and Federal law in Victoria, Submission made to the Senate Standing Committee, Gender Bias and the Judiciary.

[59] Women’s Legal Services NSW, Submission to the Committee on the Elimination of Discrimination against Women, “General discussion on access to justice”, 1 February 2013, p 4, at www2.ohchr.org, accessed 5 April 2013, citing Legal Aid NSW, Annual report 2011–2012, p 10, at www.legalaid.nsw.gov.au, accessed 5 April 2013.

[60] Many of these practical considerations have been informed by A Ainslie-Wallace, “Gender awareness”, paper presented to the following conferences — National Judicial Orientation Program, 6–10 August 2000, Brighton-le-Sands; National Judicial Orientation Program, 21–25 October 2001, Brighton-le-Sands; and NSW Land and Environment Court, 2001 Annual Conference, 11–12 October 2001, Hunter Valley.

[61] See, for example, the United States Supreme Court case of State v Pace (1994) 447 SE 2d 186, in which a criminal conviction was reversed on appeal due to the trial judge’s comments about the defendant’s lawyer being “a pretty girl”, “a nice girl” and “young”. The Supreme Court stated that: “prejudice to the defendant is evidence on the record since his attorney’s credibility was crucial to his defence of alibi. These remarks undermined counsel’s ability to effectively represent her client and constituted reversible error”.

[62] Note that s 41 of the Evidence Act 1995 provides that you must (even if no objection is taken by counsel) disallow improper questions or inform a witness that they need not be answered. Examples of improper questions include: humiliating questions; questions that are put in a tone that is belittling, insulting or otherwise inappropriate; and questions that have no basis other than a stereotype based on sex, race, culture or ethnicity, age or mental, intellectual or physical disability. Sections 26 and 29(1) of the Evidence Act also enable you to control the manner and form of questioning of witnesses, and s 135(b) allows you to exclude any evidence that is misleading or confusing.

[63] ibid.

[64] A considerable amount of material has been written on domestic violence from the woman’s perspective and the failure of the justice system to deal with it appropriately — see for example, Graycar and Morgan, above n 12, pp 303–379.

[65] Australian Law Reform Commission (ALRC) and NSWLRC, Family violence: a national legal response, ARLC Final Report 114, NSWLRC Final Report 128, 2010, Vol 2, Pt G, at www.alrc.gov.au, accessed 8 April 2013; Department for Women (NSW), Heroines of fortitude: the experiences of women in court as victims of sexual assault, Sydney, 1996.

[66] S Meyer, “Why women stay: a theoretical examination of rational choice and moral reasoning in the context of intimate partner violence” (2012) 45(2) ANZJ Crim 179; Australian Domestic & Family Violence Clearinghouse, Staying/leaving: barriers to ending violent relationships, Fast Facts No 7, July 2012, at www.adfvc.unsw.edu.au, accessed 8 April 2013, and references referred to therein.

[67] See the widely publicised and criticised decision by Bollen J in the South Australian case of R v Johns (Supreme Court, SA No. SCCRM/91/452, 26 August 1992), including the comment that “a measure of rougher than usual handling” may be used by a man to obtain his wife’s “consent” to sex. See now Question of Law Reserved On Acquittal Pursuant to Section 350(1A) Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214; Family violence: a national legal response, above n 65, Pt G; ALRC, Equality before the law: justice for women, ALRC Report No 69, 1994, Pt 1, at www.alrc.gov.au, accessed 8 April 2013; ALRC, Equality before the law: women’s equality, ALRC Report No 69, Pt 2, 1994, at www.alrc.gov.au, accessed 13 April 2013; Vic Health, Two steps forward, one step back: community attitudes to violence against women, Report, 2006, www.vichealth.vic.gov.au, accessed 2 June 2014.

[68] Under the Criminal Procedure Act 1986, ss 295–306, a person is entitled to object to the production of a protected confidence (counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence) on the ground that it is privileged. However, the primary protected confider can consent to disclosure. See also KS v Veitch (No 2) (2012} 84 NSWLR 172.

[69] See R v Leary (unrep, 8/10/93, NSWCCA) in which Kirby J approved the statement made in the NSW District Court that “prostitutes, male or female, were entitled to the same protection of the law as any other citizen. They have their human dignity and their privacy and ought not unconsensually to have that invaded by fellow citizens”. His Honour expressly declined to follow Hakopian v R (unrep, 11/12/91, VicCCA) in which the Crown abandoned its appeal in relation to the observation of the judge at first instance that “the likely psychological effect on the victim [a prostitute] of the forced oral intercourse and indecent assault is much less a factor in this case and lessens the gravity of the offences”. The principle espoused by Kirby J was affirmed in R v Villar [2004] NSWCCA 302 per Grove J, Simpson and Howie JJ agreeing, at [155]. See also B Sullivan, “Rape, prostitution and consent” (2007) 40(2) ANZJ Crim 127.

[70] See NSW, Legislative Council, The partial defence of provocation, Final Report, 23 April 2013, at www.parliament.nsw.gov.au, accessed 26 April 2013. See also submissions made to the NSW, Legislative Council, Partial defence of provocation (inquiry), at www.parliament.nsw.gov.au, accessed 8 April 2013; L Roth and L Blayden, Provocation and self-defence in intimate partner and sexual advance homicides, NSW Parliamentary Research Service, Briefing Paper No 5/2012, August 2012, at www.parliament.nsw.gov.au, accessed 8 April 2013; E Sheehy, J Stubbs and J Tolmie (a), “Defences to homicide for battered women: a comparative analysis of laws in Australia, Canada and New Zealand” (2012) 34(3) Syd LR 469, at http://sydney.edu.au/, accessed 8 April 2013; Family violence: a national legal response, above n 65, Vol 1, Ch 14, pp 653–654, Recommendations 14.1–14.5; K Fitz-Gibbon, “Provocation in New South Wales: the need for abolition” (2012) 45(2) ANZJ Crim 194; B McSherry, “It’s a man’s world: claims of provocation and automatism in ‘intimate’ homicides” (2005) 29 MULR 905.71

[71] These include:


The evidence of such witnesses must be taken in camera (that is, in a closed court) unless these witnesses consent to an open court or the court is so requested and finds special reasons in the interests of justice that require the court to be open: s 291.


These witnesses cannot be examined in chief, cross-examined or re-examined by an unrepresented accused, but may only be examined by a person appointed by the court: s 294A(2).


These witnesses may choose to give evidence by means of closed circuit television (CCTV) or other technology: s 294B(3)(a), or by use of alternative arrangements made to restrict contact, including visual contact, between the complainant and the accused including the use of screens or planned seating arrangements: s 294B(3)(b).


These witnesses are entitled to have a support person(s) present when giving evidence whether the evidence is given by means of CCTV or orally in court and whether or not the evidence is heard in camera: s 294C.

Where the Court of Criminal Appeal orders a retrial in an appeal against a conviction for a prescribed sexual offence, the recorded original evidence of the complainant is admissible in the new trial proceedings: s 306B; PGM (No 2) v R [2012] NSWCCA 261. Note also that it is possible for a party to apply for any witness to give evidence in narrative form — this may be the best approach for some women in sexual assault or domestic violence matters: Evidence Act 1995 (NSW), s 29. Further, the Court Suppression and Non-publication Orders Act 2010 (effective 1 July 2011) confers broad powers on courts to make suppression or non-publication orders: s 7. See also Judicial Commission of NSW, Criminal Trial Courts Bench Book, 2nd edn, 2002–, “Evidence given by alternative means” at [1-360]ff, “Self-represented accused” at [1-840]ff; Sexual Assault Trials Handbook, 2007–, “Trial procedure”at [1-100]ff; Local Courts Bench Book, 1988–, “Non-publication and suppression orders” at [87-300]ff.

[72] Criminal Procedure Act, s 294B(7).

[73] See Criminal Procedure Act, s 293, as to the inadmissibility of evidence about sexual reputation and sexual experience. See also Family violence: a national legal response, above n 65, Ch 27, at www.alrc.gov.au/publications/, accessed 3 April 2013. Note that there remains considerable criticism about the inappropriate presentation and admission into evidence of a woman’s sexual history (for example, alleged promiscuity, lesbianism, virginity) in sexual assault cases — see Graycar and Morgan, above n 12, pp 356–364. Note also Evidence Act, s 41.

[74] For more information, see J Morgan, Who kills whom and why: looking beyond legal categories, Occasional Paper, Victorian Law Reform Commission (VLRC), Melbourne, 2002, at www.lawreform.vic.gov.au, accessed 8 April 2013.

[75] Sheehy, Stubbs and Tolmie (a), above n 70, at 482, 486–487; E Sheehy, J Stubbs and J Tolmie (b), “Battered women charged with homicide in Australia, Canada and New Zealand: how do they fare?” (2012) 45(3) ANZJ Crim 383 at 394.

[76] ibid; for example, R v Osland [1998] 2 VR 636 and Osland v R (1998) 197 CLR 316. See also M McMahon, “Homicide, self-defence and the (inchoate) criminology of battered women” (2013) 37 Crim LJ 79; J Stubbs and J Tolmie, “Battered women charged with homicide: advancing the interests of Indigenous women” (2008) 41(1) ANZJ Crim 138.

[77] For example, R v O’Brien [2003] NSWCCA 121 at [43]–[43]; R v Runjanjic (1991) 56 SASR 114.

[78] Sheehy, Stubbs and Tolmie (a), above n 70. See also R v Hamid (2006) 164 A Crim R 179 at [76].

[79] I Freckleton and H Selby, Expert evidence (online), Thomson Reuters, Pyrmont, 2012, at [10.35.100].

[80] For example, R v Yeoman [2003] NSWSC 194.

[81] Sheehy, Stubbs and Tolmie (b) above n 75, at 387–388.

[82] Z Craven, Battered woman syndrome, Australian Domestic & Family Violence Clearinghouse Topic Paper, 2003, pp 5–6, at www.adfvc.unsw.edu.au, accessed 8 April 2013.

[83] Some of these criticisms are set out in VLRC, Defences to homicide, Final Report, 2004, p 170; see also Freckleton and H Selby, above n 79, at [10.35.170], [10.35.172]; Osland v R (1998) 197 CLR 316 per Kirby J at [164]–[166].

[84] See, for example, Graycar and Morgan, above n 12, pp 438–440; Stubbs and Tolmie, above n 75, at 153–154; “Falling short of the challenge? A comparative assessment of the Australian use of expert evidence on the battered woman syndrome” (1999) 23 MULR 709; R Bradfield, “Understanding the battered woman who kills her violent partner — the admissibility of expert evidence in Australia” (2002) 9(2) Psychiatry, Psychology and the Law 177.

[85] R v Mallot (1998) 155 DLR (4th) 513, cited in Osland v R (1998) 197 CLR 316 at 376.

[87] Criminal Trial Courts Bench Book, above n 71. See also “Checklist of jury directions” and “Resource materials for important directions on summing-up” in Sexual Assault Trials Handbook, 2007–, above n 71, at [3-000] and [4-000].

[88] ibid, “Duress” at [6-150], “Provocation” at [6-400] and “Self-defence” at [6-450].

[89] As to sentencing principles generally see Sentencing Bench Book, 2006–, above n 71. For example, “The relevance of the attitude of the victim — vengeance or forgiveness” at [12-850] and “Factors relevant to the seriousness of an offence” at [18-715]. As to the restrictions of the power of the courts to make home detention orders in sexual assault and domestic violence proceedings see Crimes (Sentencing Procedure) Act, ss 76–77, and the Sentencing Bench Book at [4-050]. Note that where the conviction is for a “domestic violence offence”, the court must make an apprehended violence order whether or not an application for such an order had been made: Crimes (Domestic and Personal Violence) Act 2007, s 39(1). Prior to conviction, the court may need to make an interim apprehended violence order if such an order is not already in place: s 40.

[90] See the Crimes (Sentencing Procedure) Act, Pt 3, Div 2; Sentencing Bench Book, above n 71, at “Victims and victim impact statements” at [12-790]. See also the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement); M Young, “The Charter of Victims Rights: supporting individuals in the criminal justice system” (2012) 24(6) JOB 43; and H Donnelly, “Assessing the harm to the victim in sentencing proceeding” (2012) 24(6) JOB 45.

[91] See, for example, research cited in Graycar and Morgan, above n 12, pp 102–109.

[92] ibid.

[93] A Symonds, “Children of prisoners” (2009) 21(3) JOB 24; E Stanley and S Byrne, “Mothers in prison: coping with separation from children”, paper presented at the Women in Corrections: Staff and Clients Conference, convened by the Australian Institute of Criminology in conjunction with the Department for Correctional Services (SA), 31 October–1 November 2000, Adelaide, at http://aic.gov.au/media_library, accessed 8 April 2013; Office for Women, Queensland, Women and the Criminal Code, Taskforce report, 2000, Ch 10, citing Home Office Research and Statistics Directorate, Research Findings No 38, 1997 at 2, at www.communities.qld.gov.au, accessed 8 April 2013; Corrective Services NSW, above n 35, pp 20–22; A Larson, “Gendering criminal law: sentencing a mothering person with dependent children to a term of imprisonment”, Australian Journal of Gender and Law, 2012, Vol 1, at https://genderandlaw.murdoch.edu.au, accessed 26 March 2013.

[94] D Kenny, Meeting the needs of children of incarcerated mothers: the application of attachment theory to policy and programming, Consultant Report prepared for the Department of Corrective Services (NSW), October 2012, p 2, at www.correctiveservices.nsw.gov.au, accessed 2 June 2014.

[95] ibid, p 5.