Promoting Aboriginal Women’s Human Rights - Understanding When not to Prosecute Aboriginal Women

Legal assessments required by the law of self-defence cannot be made in the absence of an accurate understanding of the violence a person faced before they used force. This article shows how prosecutors are making errors in their decisions to prosecute Aboriginal women who have killed an abusive partner, due to inaccurate understandings of the violence faced by defendants in these circumstances. We argue this error is a fundamental error of law, not one of fact and discretionary authority. It amounts to prosecutors making decisions to prosecute Aboriginal women (and accept guilty pleas) in the absence of a prima facie case. We argue that such decisions by prosecutors can be challenged via an application for stay of proceedings for abuse of process or a ‘no case’ submission.