Victorian Bill Aims To Abolish The Offence Of Defensive Homicide

Thursday 3 July 2014 @ 11.52 a.m. | Crime

The Victorian Government has introduced the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 into the Legislative Council. The Bill aims to abolish the offence of defensive homicide that was introduced following the abolition of provocation in Victoria.  Attorney-General Robert Clark told ABC News:

“The law was supposed to help family violence victims, but instead it's been hijacked by violent men who've been able to get away with murder...”

Reforms in the Bill

The Bill will introduce a new part IC into the Crimes Act 1958 (Vic) that will introduce a new statutory test for self-defence that will apply to all offences, and that abolishes self-defence at common law.  Part IC also contains provisions that will apply specifically in cases of family violence, including sections dealing with what evidence can be adduced, and making it clear that if family violence is in issue, the harm a person is responding to does not need to be immediate and the person may use force that exceeds the harm of the immediate threat.  The Bill will also introduce new provisions into the Jury Directions Act 2013 (Vic) that will allow a judge to explain to the jury:

“that family violence is not limited to physical abuse and may include sexual and psychological abuse, and that it is not uncommon for victims of family violence to stay with their abusive partner, rather than leave or seek help. The directions will also explain to jurors that family violence may be relevant to their assessment of whether the woman was acting in self-defence. These directions may be given early in the trial before any evidence is heard. This will ensure that any misconceptions about family violence are dispelled early on.” (from the Second Reading Speech)

The Bill similarly replaces the common law defences of duress and necessity with statutory provisions.  The Bill is also aimed at reforming the law on complicity, due to the recommendations made in the Simplification of Jury Directions Project report by the Honourable Justice Weinberg.  The reforms are designed to “remove confusing and unhelpful distinctions between different types of complicity”, and also abolish the doctrine of “extended common purpose”. 

Responses to the reforms

The present offence of “defensive homicide” has been controversial.  Although designed as protection for the mostly female victims of family violence, according to The Age, 20 men have successfully claimed defensive homicide after killing other men and only four women who have been subjected to family violence.

Kate Fitz-Gibbon, a criminology lecturer from Deakin University, has advocated for the changes outlined in the bill, calling them “a significant step forward in ensuring just responses to lethal violence”.  In an article on The Conversation, she argues that “the unintended operation of the offence remains at the heart of the need for its abolition”, and says that jury directions reform helps the bill:

“strike an important balance between ensuring that persons who commit an intentional act of lethal violence are convicted of murder while also introducing reforms to protect victims of family violence.”

Anti-violence campaigner Phil Cleary told ABC News that the current law is a “total and absolute failure” that:

“failed to grasp the fundamental question of what's going wrong in the courts, which is we have courtroom narratives in which lawyers can belittle and blacken the names of the dead woman.”

However, not everyone is in favour of the reforms.  The Women’s Domestic Violence Crisis Service, the Federation of Community Legal Centres and the Victorian Women’s Trust were among those who submitted against abolishing defensive homicide, arguing instead what is needed was “specialised family violence training and cultural awareness education” for lawyers and judges alike.  The Law Institute of Victoria also agreed, saying:

“In the absence of the former partial defence of provocation, [defensive homicide] allows the criminal law to recognise that there are differing levels of culpability in relation to homicide offences. The criminal law recognises human fallibility, and defensive homicide addresses this issue whilst at the same time indicating that killing another person, in the absence of reasonable grounds for the belief that it is necessary to do so, is a very serious offence.”

The Bill is scheduled to be debated when the Victorian Parliament resumes sitting in August.

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