Recognising family violence in homicide defences

14.2 In Chapter 6, the Commissions recommend that, where a state or territory’s criminal legislation expressly refers to the term ‘family violence’—including in the context of homicide defences—the term should be defined consistently with the civil law definition in Recommendation 5–1.^[1] In the Commissions’ view, the different policy objectives of the criminal law and family violence legislation are not compromised by the adoption of a common understanding of what constitutes family violence in the context of recognising family violence as relevant to a defence to homicide.

14.3 Each state and territory has different laws in relation to the offences of murder and manslaughter and different defences to those offences.^[2] The most relevant defences to homicides committed in a family violence context are provocation, self-defence, and excessive self-defence. Provocation and excessive self-defence are partial defences to murder, reducing it from an offence of murder to manslaughter. Self‑defence is a complete defence to criminal liability.

14.4 Several states and territories have given substantial consideration to recognising family violence in the context of defences to homicide.^[3] A number of important statutory reforms have resulted from this, with a view to accommodating the experiences of family violence victims who kill. These reforms are considered below.

Self-defence and excessive self-defence

Common law

14.5 Self-defence. The common law has long recognised that a person is justified in using some force in legitimate self-defence. It is lawful to act in self-defence, and therefore it acts as a complete defence to criminal liability, with the onus on the prosecution to negate self-defence.^[4] The common law doctrine of self-defence limits the use of force to situations where it is necessary for the accused to use force, and the degree of force is not excessive in the circumstances.^[5] The test, as articulated by the High Court in Zecevic v Director of Public Prosecutions (Vic), imports both a subjective and an objective element:

The question to be asked in the end is quite simple. It is whether the accused believed on reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had the belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt as to the matter, then he [or she] is entitled to an acquittal.^[6]

14.6 The common law test, therefore, imports two elements—that the accused person genuinely believed that it was necessary to do what he or she did, and that he or she had reasonable grounds for that belief. Reasonableness is assessed according to the ‘belief of the accused, based upon the circumstances as he [or she] perceived them to be’, rather than ‘the belief of the hypothetical person in his [or her] position’.^[7]

14.7 Accordingly, in determining whether an accused person’s belief was based upon reasonable grounds, a jury may consider, in broad terms, evidence of the surrounding circumstances, all facts within the accused’s knowledge, the personal characteristics of the accused, and the prior conduct of the victim.^[8]

14.8 The common law test does not import a requirement of an ‘imminent threat’ or a ‘proportionate response’ to the threat. Such considerations are, however, relevant to an assessment of the existence and reasonableness of the accused person’s belief that his or her actions were necessary for self-preservation.^[9]

14.9 In the family violence context, some commentators have observed that the common law of self-defence is, at least theoretically, capable of requiring the fact‑finder to ‘walk in the shoes of the battered woman in assessing her claim to self‑defence’.^[10] Evidence of the nature and history of the accused’s relationship with the deceased may include:

· evidence of prior violence against the accused, including: patterns of ongoing abuse; the escalation of violence over time; evidence of how the relevant threat was the same or different from previous threats; and the cumulative effects of violence upon the accused;

· relevant physical and psychological characteristics of the accused, as well as his or her cultural background and personal circumstances, such as social support structures, financial means and other social or cultural barriers to reporting or escaping from violence; and

· the means available to the accused to respond to the threat, and his or her efforts to resist or minimise it—for example, previous attempts to defend him or herself, flee or seek assistance, and reasons for returning to the relationship.^[11]

14.10 Such evidence may take the form of one of more of the following:

• evidence of the accused person;
• evidence of other persons such as family members, neighbours, friends or professionals who witnessed violence or observed injuries, or who were told about it by the accused or the deceased;
• the testimony of expert witnesses about the nature and dynamics of family violence, both generally and specifically in relation to the accused’s circumstances. Expert witnesses may give evidence about a range of matters including: why people remain in abusive relationships; barriers to reporting or fleeing violence; the accused’s ability to perceive danger; relevant cultural factors; and explanations of other aspects of the accused’s conduct, such as why he or she might have acted in self-defence despite planning the attack; and
• documentary evidence, including protection orders or criminal family-violence related proceedings.^[12]

14.11 Notwithstanding that the legal concept of self-defence is, at least theoretically, capable of accommodating the nature and dynamics of family violence, its interpretation and application in practice have been criticised as having largely ‘excluded the experience of battered women, and undermined their claims to reasonableness’.^[13] The Victorian Law Reform Commission (VLRC) identified the following impediments in its 2004 report on defences to homicide:

• the traditional association of self-defence as a ‘one-off’ spontaneous encounter, such as a pub brawl scenario, between two people (usually men) of relatively equal strength—whereas killings in the family violence context are typically in response to an ongoing threat rather than an attack; and
• the fact that men are often physically stronger than their female partners means that women who are victims of family violence more often kill their abusive partners in non-confrontational circumstances—such as when they are asleep or have their guard down—use a weapon, or enlist the assistance of others.^[14]

14.12 The VLRC commented that these factors may adversely influence a jury’s assessment of self-defence. It noted that juries may find that the accused either lacked a genuine belief as to the necessity of his or her actions, or that such a belief was not reasonable because the:

• threat lacked immediacy—for example, where the accused has waited until the deceased was asleep;
• threat lacked seriousness—for example, where the accused has responded to what may appear to be a relatively minor threat; or
• accused person had avenues available to them to escape or seek help.^[15]

14.13 Other commentators have observed that outcomes are largely dependent upon an understanding of the relevance of family-violence related evidence on the part of judges, jurors and legal representatives. This includes an understanding of the relevance of evidence of the accused person’s history of abuse and evidence of the general dynamics or ‘social framework’ of family violence.^[16] In particular, commentators have suggested that misunderstandings about the relevance of such evidence may arise in those cases in which the accused person does not seek to attribute his or her actions to a psychological syndrome or an abnormality of the mind, but argues rather that the killing was a rational and reasonable response—as informed by all of the circumstances in which the accused found him or herself.^[17]

14.14 Excessive self defence. Excessive self-defence can, in certain circumstances, operate as a partial defence at common law. The common law position on excessive self-defence, stated by the High Court in Viro v The Queen is that self-defence which was necessary but involved the use of excessive force involving death, should lead to a verdict of either manslaughter or murder—depending on whether the accused believed that the force the accused used was reasonably proportionate to the danger which the accused believed he or she faced.^[18]

Model Criminal Code

14.15 In 1992, the Standing Committee of Attorneys-General (SCAG) Model Criminal Code Officers Committee (MCCOC)—now the Model Criminal Law Officers Committee (MCLOC)—published the Model Criminal Code—Chapter 2, General Principles of Criminal Responsibility Report. That report recommended the following legislative definition of self-defence:

313. Self-defence

A person is not criminally responsible for an offence if the conduct constituting the offence was carried out by him or her in self-defence.

313.1 Conduct is carried out by a person in self-defence if

the person believed that the conduct was necessary

— to defend himself or herself or another person; or

— to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

— to protect property from unlawful appropriation, destruction, damage or interference; or

— to prevent criminal trespass to any land or premises; or

— to remove from any land or premises a person who is committing criminal trespass; and

his or her conduct was a reasonable response in the circumstances as perceived by him or her.

313.2 This section does not apply if force involving the intentional infliction of death or really serious injury is used in protection of property or in the prevention of criminal trespass or in the removal of such a trespasser.

313.3 This section does not apply if the conduct to which the person responded was lawful and that person knew that it was lawful.

313.3.1 Conduct is not lawful for the purposes of section 313.3 merely because the person carrying it out is not criminally responsible for it.^[19]

14.16 The MCCOC indicated that the definition of self-defence retains the subjective and objective elements of Zecevic, but is designed to simplify the law:

The test as to necessity is subjective, but the test as to proportion is objective. It requires the response of the accused to be objectively proportionate to the situation which the accused subjectively believed she or he faced (the words ‘as perceived by him or her’ were added to make this clear).^[20]

14.17 The MCCOC also discussed excessive self-defence in its 1998 discussion paper on fatal offences against the person and recommended that a partial defence of this nature not be re-introduced:

On balance, the Committee is not in favour of re-introducing excessive self-defence, particularly in the context of abolishing provocation. As a concept, excessive self-defence is inherently vague. This aspect has to date resulted in no satisfactory test being promulgated.^[21]

State and territory legislation

14.18 Legislative provisions govern self-defence in NSW,^[22] Victoria,^[23] Queensland,^[24] Western Australia,^[25] South Australia,^[26] Tasmania,^[27] ACT,^[28] and the Northern Territory.^[29] While the wording of specific provisions differs, all statutes—with the exception of the Queensland Criminal Code—expressly recognise the context-specific nature of the reasonableness requirement. The Commissions consider recent reforms to and other notable aspects of these defences below.

New South Wales

14.19 In 2002, NSW introduced new laws in relation to self-defence and reintroduced the defence of excessive self-defence.^[30] The Attorney General stated in the Second Reading Speech of the Crimes Amendment (Self-Defence) Bill 2001 (NSW), that:

The Bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who actually believed it was necessary to do what he did to repel an attack, even if he was wrong about that perception, may seek to rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant. However, the bill contains two departures from the Model Criminal Code. The first departure is the re-introduction of the law of excessive self-defence … This was the common law position as previously stated by the High Court in Viro …

… The second difference to the Model Criminal Code relates to self-defence in the context of defence of property … The Model Criminal Code limits the defence of property and criminal trespass by not permitting death or really serious harm to be occasioned.

This limit has been modified under the Bill. Obviously, it is not desirable to encourage persons to defend their property with excessive force. The Model Criminal Code emphasised the need to consider the value of human life by indicating that really serious injury or death could never enliven a self-defence issue in defence of property or to prevent criminal trespass. …

There can be no circumstances where it is appropriate to intentionally or recklessly take a human life in the protection of property or to prevent criminal trespass, although it may be permissible to do serious bodily harm in certain circumstances if necessary and reasonable.^[31]

Victoria

14.20 The Victorian Crimes (Homicide) Act came into effect in 2005. The Act implemented a series of recommendations of the 2004 VLRC report ondefences to homicide.^[32] Key reforms included:

• the abolition of provocation as a partial defence to murder;^[33]
• defining the law of self-defence in respect of homicide offences;^[34]
• recognising excessive self-defence through the creation of a new offence of defensive homicide;^[35] and
• providing legislative guidance on the admissibility of evidence of family violence in the context of homicide defences.^[36]

14.21 The new offence of defensive homicide is contained in the Crimes Act 1958 (Vic) s 9AD. It applies where an accused kills, believing the conduct to be necessary to defend himself or herself or another from the infliction of death or serious injury, but where he or she did not have reasonable grounds for that belief.

14.22 The VLRC further recommended that the Victorian Department of Justice review the operation of s 9AD after it had been in force for five years, with a view to identifying how the defence is being used, in what circumstances, and with what outcome.^[37] This review is in progress.^[38]

Queensland

14.23 The Queensland formulation of self-defence is distinct from that of other jurisdictions in that it does not expressly recognise the contextual nature of reasonableness, and requires acts of self-defence to be undertaken in response to an unlawful assault.^[39] Section 271 relevantly provides that:

(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2) If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that the person can not otherwise preserve the person defended from death or grievous bodily harm, it is lawful for the person to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.^[40]

14.24 The requirement for defensive action to be taken in response to an assault means that evidence of family violence is relevant in the more limited context of assessing the accused person’s reaction to a particular assault that precipitated the killing. That is—a particular assault must have caused the accused to reasonably apprehend death or grievous bodily harm, and reasonably believe that there was no other means of preserving him or herself.

14.25 This requirement has been criticised as fundamentally inconsistent with the dynamics of family violence—in particular that killings in response to family violence usually stem from ongoing patterns of abuse, and often occur in non-confrontational circumstances. It has been argued that—by effectively viewing the reasonableness requirement through the prism of a response to an assault—the Queensland formulation of self-defence reduces the likelihood that victims of family violence who kill their abusers will be able to meet the conditions of self-defence.^[41]

14.26 Some commentators have criticised the sentencing regime of mandatory life imprisonment for murder in Queensland.^[42] It has been argued that the lack of sentencing discretion has rendered self-defence an ‘all-or-nothing’ defence for victims of family violence who kill. Such persons are either acquitted or are convicted of murder and sentenced to life imprisonment.^[43]

14.27 These factors led to the introduction of the separate, partial defence of killing in an abusive relationship into the Criminal Code (Qld)in February 2010,^[44] in response to the recommendations of an independent review commissioned by the Queensland Government.^[45] This provision is discussed separately below.

Western Australia

14.28 .In introducing amendments to self-defence in Western Australia, Suzanne Ellery, the Minister for Child Protection stated in the Second Reading Speech of the Criminal Law Amendment (Homicide) Bill 2008 that:

Another important change contained in this bill is that the harmful act that the person believes it is necessary to act against in self-defence will not have to be imminent. By providing that the threat need not be imminent, the defence will more readily apply to women who are the victims of domestic violence in the so called ‘battered spouse’ situation. It will still be necessary for persons to show that there are reasonable grounds for the person’s belief that the act of self-defence was necessary and that the force used must be objectively reasonable in the circumstances the person believed to exist. It is not expected that this provision will apply to situations in which it would be reasonable for the person to take other steps, such as going to the police or escaping from the harmful situation.^[46]

South Australia

14.29 In South Australia, it is also a partial defence to a charge for murder—thereby reducing the offence to manslaughter—if the accused genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but the conduct was not reasonably proportionate to the threat the accused genuinely believed to exist.^[47] As noted above, a provision to similar effect is contained in the crimes legislation of NSW^[48]—as well as that of Western Australia.^[49]

Leading evidence of family violence in the context of self-defence

14.30 As identified in Chapter 13 in relation to offences, evidence of family violence is generally admissible where it is relevant to a fact in issue. In the context of self-defence, such evidence may be probative of both the existence of an accused person’s belief that his or her actions were necessary to preserve himself or herself, and the reasonableness of that belief.

14.31 The Victorian and Queensland parliaments have provided legislative guidance on the potential relevance of evidence of family violence in the context of homicide defences, including self-defence.

Victoria

14.32 As noted in Chapter 13, where family violence is alleged, s 9AH of the Crimes Act 1958 (Vic) provides that evidence of family violence^[50] may be relevant to defences to murder,^[51] defensive homicide^[52] and manslaughter.^[53] This provision does not operate as a separate defence, but confirms the potential relevance of family‑violence related evidence to self-defence. Under s 9AH, where family violence is alleged, self-defence is available even if an accused person is responding to harm that is not immediate; or his or her response uses disproportionate force.

14.33 Types of evidence that can be adduced include:

• evidence about the history of the relationship between the accused person and a family member;
• the general nature and dynamics of relationships affected by family violence;
• the cumulative effects, including psychological effects, on the person or a family member of family violence; and
• social, cultural or economic factors that impact on the person or a family member who has been affected by family violence.

14.34 In introducing the amendments, the Victorian Attorney-General, Rob Hulls, stated that the section ‘highlights the types of relationship and social context evidence that may be relevant in such cases’.^[54] The Explanatory Memorandum to the Crimes (Homicide) Bill 2005 (Vic) indicates that the word ‘may’ is used in the sense of possibility, rather than to denote the conferral or exercise of a discretionary power.^[55]

14.35 The Victorian model has, however, been criticised by one lawyer as a ‘breathtaking extension’ of the law of self-defence:

Taken to their logical (or, perhaps, illogical) conclusion, these new provisions suggest that a number of acts of trivial ‘harassment’ (whatever that term might embrace) by a family member, which do not involve actual or threatened abuse, might permit a person to use disproportionate force to kill that family member even where ‘harm’ is not ‘immediate’.^[56]

14.36 The first case in which s 9AH was applied was DPP v Anthony Sherna.^[57] In that case, Sherna—the accused—strangled his de facto wife and led evidence of family violence, including economic and psychological abuse, inflicted upon him over a period of 18 years.^[58] Justice Beach rejected an application by the prosecution to take the issue of self-defence and defence of another away from the jury, even if such pleas may have been ‘weak’ and ‘tenuous’.^[59] Sherna was found guilty of manslaughter and sentenced to 14 years imprisonment with a non-parole period of 10 years.

Queensland

14.37 As identified in Chapter 13, the Evidence Act 1977 (Qld) s 132B provides that ‘relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed’ is admissible in criminal proceedings against a person for offences defined in Chapters 28 to 30 of the Criminal Code (Qld).^[60] However, the provision has been criticised as redundant because relevant evidence is, by definition, generally admissible.^[61]

14.38 In their 2009 report to the Queensland Attorney-General, Homicide in Abusive Domestic Relationships: a Report on Defences, Professors Geraldine Mackenzie and Eric Colvin recommended that an evidentiary provision—based on the Crimes Act 1958 (Vic) s 9AH—be attached to their recommended partial defence.^[62] This recommendation was not implemented in the new defence of killing in an abusive domestic relationship in s 304B of the Criminal Code (Qld).

Provocation

Model Criminal Code

14.39 In 1998, the MCCOC recommended that the partial defence of provocation should be abolished, and that:

Those considerations which currently provide a basis for the partial defence should be considered for their relevance to the determination of an appropriate sentence after conviction.^[63]

14.40 In considering whether or not provocation should be abolished, the MCCOC noted that:

The balance of opinion sees provocation to operate in practice in a gender biased fashion. Although the courts have tinkered with the legal principles, formulations of the doctrine which reduce the suddenness requirement are artificial and contrary to its historical foundation. The theory underlying battered woman syndrome does not comfortably co-exist with that of provocation.

The real issue in deciding whether the partial defence of provocation should be retained is one of culpability—whether the defendant should be culpable for murder, or for the lesser crime of manslaughter … [W]hile provocation in its modern setting is designed to afford a middle ground to better reflect criminal culpability, it falls significantly short of that goal by reason of its limited focus which inescapably gears the partial defence towards male patterns of aggression and loss of self-control (its origin) at the expense of the sanctity of human life.^[64]

State and territory legislation

Abolition of defence

14.41 Provocation has been abolished in Western Australia,^[65] Victoria,^[66] and Tasmania.^[67]

14.42 The Law Reform Commission of Western Australia recommended that the defence be abolished, but only if the mandatory penalty of life imprisonment for murder was replaced with a presumptive sentence of life imprisonment.^[68] It expressed the view that there was no clear justification for retaining the defence of provocation except the continued existence of mandatory life imprisonment for murder.^[69]

14.43 The Tasmanian Attorney-General in the Second Reading Speech of the Criminal Code Amendment (Abolition of Defence of Provocation) Bill 2003 also stated that provocation was an anachronism ‘now that the death penalty and mandatory life imprisonment have been removed’.^[70] A similar statement was made by the Victorian Attorney-General in the Second Reading Speech of the Crimes (Homicide) Bill 2005:

The courts developed the partial defence of provocation at a time when murder carried a mandatory death penalty. The partial defence is outdated now that provocation can simply be taken into account, if relevant, alongside a range of other factors in the sentencing process.^[71]

14.44 A number of other reasons were advanced for the abolition of the defence by the Law Reform Commission of Western Australia, the VLRC and the Tasmanian Attorney-General.^[72] These included the following:

• The jury must take into account the personal characteristics and background of the accused when assessing the gravity of the provocation, but then the jury is expected to disregard these factors for the second stage of the test in assessing the power of self-control of an ordinary person.^[73] The ‘correct balance between subjective and objective factors is difficult to strike’.^[74]
• The defence of provocation creates two categories of intentional killing when the distinction ought to be between intentional killing and unintentional killing.^[75]
• The moral basis of provocation is incompatible with contemporary community values and views on what is excusable behaviour:

The continued existence of provocation as a separate partial defence to murder partly legitimates killings committed in anger. It suggests there are circumstances in which we, as a community, do not expect a person to control their impulses to kill or to seriously injure a person. This is of particular concern when this behaviour is in response to a person who is exercising his or her personal rights, for instance to leave a relationship or to start a new relationship with another person.^[76]

• · Retaining a partial defence of provocation also sends a message that the homicide victim must bear some of the blame for his or her own death. This can be deeply distressing for friends and family of homicide victims.^[77]
• Provocation is and can be adequately considered as a factor during sentencing.^[78]
• The defence of provocation is gender biased and unjust. The defence fails to recognise that men kill women in very different circumstances from those where women kill men. Men are motivated to kill their partners out of jealousy, and a need for control based on threats to leave and issues of infidelity whilst women kill their partners because of a history of family violence.^[79] Further:

The ‘suddenness’ element of the defence is more reflective of male patterns of aggressive behaviour. The defence was not designed for women and it is argued that it is not an appropriate defence for those who fall into the ‘battered women syndrome.’^[80]

• The defence of provocation can be subject to abuse.^[81]

Retention of defence

14.45 Provocation remains a defence in NSW, Queensland, the ACT and the Northern Territory.

14.46 In NSW, provocation is available as a partial defence to murder.^[82] In 1997, the NSW Law Reform Commission (NSWLRC) recommended that the defence of provocation be retained.^[83] It expressed the view that there are circumstances in which a person’s mental state is impaired by a loss of self control, thereby reducing the culpability of a person who kills; and not warranting that person being labelled a ‘murderer’:

A conviction of manslaughter ensures a greater likelihood that the community will understand and accept a reduced sentence which reflects a lesser degree of culpability.^[84]

14.47 The NSWLRC considered the application of the defence of provocation in family violence circumstances. It acknowledged that concern is sometimes expressed that the defence of provocation is used inappropriately to excuse offenders who kill their partners because of sexual jealousy or possessiveness:

[T]here may be a risk that a particular accused will seek to rely on the defence of provocation to excuse an act of violence which was in fact premeditated and was committed in the context of a history of violence and domestic abuse. However, that risk hardly justifies abolishing the defence. To do so would exclude other, deserving cases from the reduction of murder to manslaughter by way of the defence of provocation and, in effect, would be to throw the baby out with the bathwater.^[85]

14.48 The NSWLRC made a number of recommendations to reform the defence of provocation, none of which has been adopted. In particular, it recommended the abolition of the ‘ordinary person’ test with the result that:

women whose power to exercise self-control has been impaired by reason of a long history of abuse are not excluded from the defence through the imposition of some objective standard which does not take that factor into account in determining ‘ordinary’ powers of self-control. Under our reformulation, all factors which may affect a woman’s power of self-control, including a long history of being abused, are to be considered by the jury in arriving at their verdict.^[86]

14.49 The NSWLRC also recommended that legislative amendments make it clear that the defence of provocation may apply to provocative conduct occurring outside the accused’s presence.^[87] It noted that this approach ensures

that the defence of provocation is not automatically excluded from cases where a woman kills her partner following incidents of abuse by that partner which are not witnessed personally by the woman, such as sexual and physical assaults on her children.^[88]

14.50 In Queensland, the partial defence of provocation to murder is limited to circumstances in which the accused kills ‘in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool’.^[89] In 2008, the Queensland Law Reform Commission (QLRC) recommended that the partial defence should remain, given the ‘constraint of the [Queensland] Government’s stated intention to make no change to the existing penalty of mandatory life imprisonment for murder’.^[90] However, the QLRC recommended the following amendments to the defence:

• other than in circumstances of an ‘extreme and exceptional character’, the partial defence should not be based upon ‘words alone, or conduct consisting substantially of words’, or upon ‘the deceased’s choice about a relationship’; and
• the defendant should bear the onus of proof of the partial defence, on the balance of probabilities.^[91]

14.51 On 12 September 2010, the Queensland Attorney-General, Cameron Dick, stated that the Queensland Government intends to introduce a Bill into Parliament in 2010 containing these amendments to the Criminal Code (Qld).^[92]

14.52 Provocation is a partial defence in the ACT^[93] and the Northern Territory;^[94] and in each case the conduct of the deceased provoking the offender may have occurred immediately before the act or omission causing death or at any previous time.

14.53 In 2000, the Law Reform Committee of the Northern Territory recommended that the defence of provocation should be amended to abolish the requirement for the accused to have ‘acted on the sudden and before there was time for his passion to cool’.^[95] In 2006, the Northern Territory introduced a new provision dealing with the defence of provocation.^[96] The revised provision, currently in force, imposes an objective test as to whether the provocation was sufficient to have induced an ordinary person to have so far lost self control as to have formed an intent to kill or cause serious harm to the deceased.^[97] A person’s gender, cultural background or ethnicity is not relevant when applying this test of assessing the power of self control of a person. In the Second Reading Speech of the Criminal Reform Amendment Bill (No 2) 2006 the Attorney-General noted that the revised defence would address family violence issues:

The revised provision also removes the requirement for the defendant to have acted ‘on the sudden and before there was a time for his passion to cool’. This requirement has to date made the defence unavailable in cases where there has been a history of serious abuse inflicted on the defendant, which ultimately leads them into attacking their abuser. This is the situation in what is commonly referred to as ‘battered women’ cases.

The bill also clarifies that the defence is available in circumstances where the provocation is directed at someone other than the accused, for example towards children of the defendant. The government considers that this revised provision will reflect the best law on this defence.^[98]

Overseas

14.54 On 8 December 2009 the defence of provocation was repealed in New Zealand. This followed two reports by the New Zealand Law Commission (NZLC) which recommended abolition of the partial defence—one published in 2001,^[99] and the other published in 2007.^[100] In the latter report, the NZLC specifically considered the effect of the defence of provocation on battered defendants. It concluded that:

For the majority of battered defendants, self defence will tactically offer a preferable alternative to provocation, because it results in an acquittal. … [P]rovocation is not benefiting battered defendants sufficiently to warrant its retention, and our review of case law confirms this.^[101]

14.55 In contrast, the defence of provocation is available in England and Wales.^[102]In 2006, the United Kingdom Law Commission reviewed the defence of provocation and recommended that there be legislative reform to include circumstances in which the defendant acted in response to ‘fear of serious violence towards the defendant or another’.^[103] The Law Commission considered that this reform would be sufficient to meet the criticisms that the defence of provocation ‘makes no provision for fear of serious violence to reduce murder to manslaughter’^[104] and that it permits the reduction of the offence from murder to manslaughter in cases ‘where the provoked murder may have been little more than a reflection of the continuing cultural acceptability of men’s use of violence in anger’.^[105]

A separate partial defence of family violence

Queensland

14.56 The Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 (Qld) amended the Criminal Code (Qld) by inserting a new s 304B, which introduced a new partial defence to murder of ‘killing in an abusive domestic relationship’. Section 304B provides that murder will be reduced to manslaughter if:

• the accused unlawfully killed the deceased in circumstances that would constitute murder;
• the deceased has committed ‘serious acts of domestic violence’ against the accused in the course of an ‘abusive domestic relationship’;
• the accused believes that it is necessary to do the act or make the omission causing death, in order to preserve him or herself from death or grievous bodily harm; and
• the accused has reasonable grounds for that belief, having regard to the abusive domestic relationship and all the circumstances of the case.^[106]

14.57 The terms ‘domestic violence’ and ‘domestic relationship’ are defined by reference to the Domestic and Family Violence Protection Act 1989 (Qld).^[107] The word ‘serious’ has been left deliberately undefined as a matter for the jury to determine in the circumstances of individual cases. The Queensland Attorney-General, Cameron Dick, stated in the Second Reading Speech that:

The use of the term ‘serious’ within the provision in relation to the level of domestic violence is used as a matter of emphasis to place the nature of the domestic violence in the Supreme Court murder trial in context. … All domestic violence must be condemned not only by government but in all our communities and in our homes. However, the use of the term ‘serious’ in the bill acts to create an appropriate threshold for the application of this partial defence to a charge of murder.^[108]

14.58 Sections 304(4)–(7) confirm the relevance of the full circumstances of the relationship between the accused and the deceased. They provide that:

• a history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation;
• the partial defence is available even if the killing was in response to a particular act of domestic violence committed by the deceased that would not—if the history of acts of serious domestic violence were disregarded—warrant the response;
• the partial defence is available even if the accused has sometimes committed acts of domestic violence in the relationship; and
• in assessing the reasonableness of the accused’s belief that his or her actions were necessary for self-preservation, regard may be had to circumstances including acts of the deceased that were not acts of domestic violence.

14.59 This partial defence only applies to murder, and the victim of family violence. Unlike self-defence, it is not available to persons acting in the defence of third persons who are family violence victims.^[109] In further contrast to self-defence, s 304B does not require the killing to occur in response to an assault by the deceased.

14.60 The Explanatory Notes to the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill 2009 (Qld) indicate that the provision is intended to be additional rather than an alternative to other defences or excuses:

A victim of abuse charged with the murder of their abuser may wish to raise the complete defence of self-defence for the purposes of an acquittal, the partial defence of diminished responsibility or provocation to reduce a charge of murder to manslaughter, as well as the new partial defence depending on the circumstances of the case. It will then be a matter for the jury having regard to all the defences/excuses left to them to determine criminal responsibility.^[110]

14.61 The Explanatory Notes express an intention to achieve ‘a balance between necessarily punishing those who would otherwise be guilty of murder, and providing some legal protections for victims of serious abuse’.^[111] The Explanatory Notes indicate that the provision is designed to respond to two key problems, namely:

• a lack of sentencing discretion in respect of victims of family violence who are convicted of murder, due to the sentencing regime of mandatory life imprisonment; and
• the limited effectiveness of existing defences for family violence victims who kill, due to the way in which it has been identified that they kill—for example, in non-confrontational circumstances, in response to an ongoing threat rather than a ‘one-off’ attack.^[112]

14.62 Section 304B was enacted following an independent report commissioned by the Queensland Government,^[113] after a recommendation made by the QLRC that:

Consideration should be given, as a matter of priority, to the development of a separate defence for battered persons which reflects the best current knowledge about the effects of a seriously abusive relationship on a battered person, ensuring that the defence is available to an adult or a child and is not gender-specific.^[114]

14.63 The independent report, written by Mackenzie and Colvin, recommended against a new, complete defence for family violence victims who kill, or the amendment of existing self‑defence provisions. The authors referred to stakeholders’ arguments that these approaches would risk protecting unmeritorious defendants, and that self-defence is adequate as a complete defence because it has led to acquittals in family violence cases. Mackenzie and Colvin concluded that:

In light of the diverse views expressed, we cannot recommend the reform of the general law of self-defence in this Report. While there may be deficiencies in the existing law and lessons to be learned from the experiences of other jurisdictions, a broader inquiry should be conducted before reform is initiated.

We have considered whether it would be appropriate to recommend the introduction of a separate version of self-defence, restricted to the victims of seriously abusive relationships. On balance, however, we have concluded that, at this time, there is insufficient support within the legal community for any complete defence outside the conditions of the existing defence of self-defence. We suggest that options be reconsidered when sufficient time has passed to permit assessment of the impact of the developments in other jurisdictions.^[115]

14.64 Some recommendations of the independent report were not adopted in s 304B. These included recommendations that:

• the partial defence should be available to the victims of seriously abusive relationships and family members of the victim who are or have been parties to the domestic relationship in which the abuse has occurred and who act in defence of the victim;^[116]
• the person claiming the partial defence need only believe that the killing was necessary for self-defence generally rather than specifically to preserve his or her life;^[117] and
• as mentioned above, the inclusion of an evidentiary provision, based on the Victorian model, providing guidance about the potential relevance of evidence of family violence.^[118]

14.65 At the time of writing, s 304B had not been utilised. In the murder trial of R v Falls, the jury was directed on the section, however the accused was acquitted of murder on the basis of self-defence.^[119]

14.66 Some commentators have criticised the Queensland approach. For example, Anthony Hopkins and Professor Patricia Easteal described the reform as ‘a compromised outcome, leaving battered women who kill in Queensland in an invidious position as compared to their interstate counterparts’.^[120] They argue that, while the section may reduce the number of murder convictions for persons who kill in response to serious family violence, it will not increase the prospect of acquittal for such persons, and may potentially undermine their claims to self-defence.^[121]

14.67 The authors commented on the partial nature of the defence in the following terms:

In echo of the standard common law formulation of self-defence, s 304B requires that the defendant believed his or her act was necessary in self-preservation from death or grievous bodily harm. And, that the defendant had ‘reasonable grounds for the belief having regard to the abusive domestic relationship and all of the circumstances of the case’.

Under the common law, and the formulations of the test of self-defence in Victoria and Western Australia, the existence of such a belief warrants acquittal. This result is almost a self-evident consequence of the finding that the use of lethal force was reasonable and rational. By contrast, s 304B operates as a partial defence, reducing murder to manslaughter. Thus, despite the existence of reasonable grounds for a belief that it was necessary to use lethal force in self-defence, the killer remains subject to punishment—a clear though contradictory indication that their actions were neither reasonable nor rational.

The enactment of s 304B leaves untouched the test of self-defence in Queensland—the last remaining in Australia to require defensive action is taken in response to an assault. Where a battered woman seeks an acquittal, the reform does nothing to ensure that the reasonableness of her actions are assessed by reference to all of the situational and psychological circumstances in which she finds herself.^[122]

14.68 Hopkins and Easteal also express concern that s 304B ‘substantially duplicates’ existing self-defence provisions in ss 271 and 272 of the Queensland Criminal Code. They comment that such duplication may create confusion in the minds of jurors about the relevance of family-violence related evidence where they are directed to consider both self‑defence and s 304B:

Where a woman kills her batterer in circumstances where she is subject to a threat of serious violence, such as to constitute an assault, she may seek to rely upon both defences. In such a case, the same essential elements must be considered by the jury. That is, did she honestly believe that it was necessary to do as she did to preserve her life or protect herself from grievous bodily harm? And, did she have reasonable grounds for that belief?

Given the level of conformity, judicial directions may focus on the fact that s 304B expressly requires consideration of [an] ‘abusive relationship and all of the circumstances of the case’, whereas s 271 and s 272 do not. Whilst this distinction may be insignificant as a matter of law, it may be a matter of great practical importance. Where a choice must be made, jurors may incline towards the view that a battered woman’s actions were only reasonable taking into account the violent antecedents. The result: a manslaughter verdict where otherwise a battered woman would have been entitled to an acquittal. Disturbingly, such an outcome would run counter to the overall objective of the reform, intended as it was to ensure that the Criminal Code (Qld) further embrace the experiences of those who kill after suffering prolonged abuse.^[123]

Consideration of separate defences in other jurisdictions

Victoria

14.69 The VLRC, in its 2004 report on defences to homicide, recommended against the introduction of a separate defence for persons who kill in response to family violence. It concluded that reforms should focus on ‘ensuring that self-defence properly accommodates women’s experiences, rather than on creating a special defence for women who kill in response to family violence’. The Commission considered that clarification of self-defence and evidence law could ‘take adequate account of women’s experiences of violence’.^[124]

Western Australia

14.70 Similarly, the Law Reform Commission of Western Australia in its 2007 Report, Review of the Law of Homicide, concluded that,rather than introduce a separate defence for victims of family violence, ‘it is preferable to amend the law so that it better accommodates the experiences of victims of domestic violence who kill’.^[125]

New Zealand

14.71 The NZLC, in its 2001 report, Some Criminal Defences with Particular Reference to Battered Defendants, did not support the introduction of a specific defence for victims of family violence who kill or assault their abusers, because it was of the view that the availability of self-defence was adequate. The NZLC recognised that there may be some difficulties for battered persons demonstrating that their conduct was in self-defence, but was of the view that these could be addressed by reforming the provisions relating to self-defence.^[126]

Summary of jurisdictional approaches

14.72 In summary, several jurisdictions have given substantial consideration to recognising family violence in the context of defences to homicide. A number of important statutory reforms have resulted from this, including:

• reforms to the defence of self-defence—including removal of the requirement for the threat to be imminent (Western Australia);
• reforms to the defence of provocation—including the removal for the requirement for the defendant to have ‘acted on the sudden and before there was a time for his passion to cool’ (Northern Territory), and removal of the requirement for the provocative conduct of the deceased to have occurred immediately prior to the act or omission causing death (for example, NSW);
• abolition of the defence of provocation in part because of its unsuitability for female victims of family violence (Victoria, Western Australia, Tasmania);
• expanding self-defence to take family violence into account, including express provision for the leading of evidence about family violence (Victoria); and
• creating a new defence of family violence (Queensland).

14.73 With the exception of the Queensland legislation, most reforms have not introduced a separate defence to accommodate victims of family violence.

Submissions and consultations

14.74 In the Consultation Paper the Commissions proposed that state and territory criminal legislation should:

• provide defences to homicide which accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence;^[127] and
• expressly allow defendants to lead evidence about family violence in the context of a defence to homicide. The Commissions noted that s 9AH of the Crimes Act 1958 (Vic) is an instructive model in this regard.^[128]

14.75 More generally, the Commissions sought stakeholder views on the adequacy of current homicide defences in the family violence context, and on the preferable means of recognising family violence as a defence to homicide.^[129]

14.76 The majority of stakeholders responding to these issues strongly supported the principle of recognition—namely, that the nature and dynamics of family violence should be recognised in homicide defences and supporting evidentiary provisions. However, stakeholders were divided about the appropriate form of recognition.

Recognising the nature and dynamics of family violence in homicide defences

‘In-principle’ recognition of family violence in homicide defences

14.77 Submissions responding to the proposal that jurisdictions should provide defences to homicide, which accommodate the experiences of family violence victims who kill, strongly supported the principle of recognition of the dynamics of family violence.^[130] The majority of submissions did not advance reasons for their positions or provide further comments as to detail. Two submissions, however, emphasised the importance of a nationally consistent approach to recognition.^[131] One legal service provider commented that any form of recognition should not result in the differential treatment of killings in response to family violence, and those in response to other forms of violence.^[132]

14.78 Professor Julie Stubbs submitted that homicide defences should not be treated in isolation, and any forms of recognition should also include evidentiary rules and sentencing law and policy. Stubbs further submitted that any consideration of defences should include an examination of their use or potential use by family violence offenders who are charged with homicide offences.^[133]

Adequacy of current homicide defences

14.79 Submissions and consultations indicated that, on balance, stakeholders considered that current approaches to homicide defences are inadequate.^[134] Stakeholders expressed various concerns about individual jurisdictional approaches and issues of general application including:

• the absence of national consistency in approaches to defences;^[135]
• ‘unintended consequences’ associated with the use of defensive homicide provisions in Victoria—in particular their use by persons who have committed family violence against the deceased;^[136]
• aspects of Queensland laws and sentencing policy, including—the existence of mandatory life sentencing for murder; the partial nature of the defence in the Criminal Code s 304B; the risk that s 304B may be misapplied by juries because it ‘substantially duplicates’ the existing self-defence provisions in the Criminal Code ss 271–272; and the requirement in ss 271–272 that actions taken in self‑defence must be in response to an assault;^[137]
• the Western Australian reforms to self-defence have primarily focused on the doctrinal content of the law and, in doing so, have not directly addressed issues of application;^[138] and
• the continued existence of provocation defences in some jurisdictions.^[139]

Forms of recognition.

14.80 There was divergence in stakeholder views about the preferable form of recognition of the dynamics of family violence in homicide defences.

14.81 The majority of stakeholders commenting on this issue supported self-defence as the basis for recognition,^[140] however there was division as to whether such recognition should occur within existing self-defence provisions of general application, or whether a specific family-violence related form of self-defence is necessary. Three stakeholders supported a generally applicable formulation of self‑defence that encapsulates the social context of homicides, including circumstances of family violence.^[141] The predominant basis for this view was equality in the treatment of family violence victims charged with homicide—namely, that ‘family violence victims should not be seen in an atypical context’.^[142] Hopkins and Easteal further commented that self‑defence appropriately recognises that killings are ‘rational or reasonable’ responses to serious threats, rather than products of ‘the extraordinary psychology of battered women’.^[143]

14.82 In their comparison of the legislative reforms to self-defence in Victoria, Queensland and Western Australia, Hopkins and Easteal concluded that the Victorian reforms have

gone furthest to ensure engagement with the experience of battered women. Despite retaining the common law formulation of self-defence, those amendments put beyond doubt that reasonableness must be considered by reference to [the victim’s] full situational and psychological predicament. ^[144]

14.83 Other stakeholders expressly supported the Victorian reforms as a basis for recognition.^[145]

14.84 The NSW Office of the Director of Public Prosecutions (NSW ODPP) favoured recognition of family violence within existing self‑defence provisions of general application, or as a family-violence specific partial defence in the nature of provocation, without expressing a firm view on the preferred option:

Because family violence is such an insidious and often long experienced phenomenon, and the effects of it can make it very difficult for the victim to speak freely about it, there is a good argument for developing specific rules for it to be available either as a full defence (within the self-defence part of the Crimes Act) or partial defence to murder (like provocation). Provocation in our experience is very difficult to explain to a jury because of the subjective/ordinary person test, and for this reason we submit it could be accommodated separately from the general partial defence of provocation, but having the same sort of rationale.^[146]

14.85 Several stakeholders supported a holistic approach to homicide defences in the family violence context—incorporating revisions of defences, sentencing and evidence laws, and ongoing judicial and legal professional education about the dynamics of family violence.^[147] The No To Violence Male Family Violence Prevention Association further expressed a preference for a nationally consistent approach to defences.^[148]

14.86 Other stakeholders favoured a separate family-violence related defence, but did not advance a firm view on the form it should take.^[149] Some stakeholders submitted that it was too early to assess the impact of recent reforms—in particular the partial defence of killing in an abusive domestic relationship in the Queensland Criminal Code s 304B—and identified a need for ongoing monitoring and future reviews of their operation in practice.^[150]

Leading evidence of family violence for the purposes of homicide defences

14.87 Stakeholders unanimously supported the Commissions’ proposal for the enactment of legislative guidance about the potential admissibility of family-violence related evidence in the context of homicide defences.^[151] The majority of submissions supported provisions along the lines of the Crimes Act 1958 (Vic) s 9AH without elaboration.^[152] Hopkins and Easteal commented that such a provision would assist juries to comprehend ‘“what it must really be like to live in a situation of ongoing violence” and why her ultimate response was truly reasonable’.^[153]

14.88 The Magistrates’ Court and Children’s Court of Victoria suggested that jurisdictions considering enacting provisions in the nature of the Crimes Act 1958 (Vic) s 9AH should consider concerns raised in Victoria in relation to the use of the provision by defendants who have committed family violence against the deceased and who seek to rely upon defensive homicide.^[154]

Commissions’ views

14.89 The Commissions have taken a high-level approach to the issues raised in this part, and have focused on the identification of relevant considerations and guiding principles for recognising the dynamics of family violence in homicide defences. The Commissions do not make recommendations about specific forms of defences or individual provisions in state and territory criminal legislation. In taking this approach, the Commissions acknowledge that:

• state and territory governments and law reform agencies have given substantial consideration to homicide defences in the family violence context;
• jurisdictions have taken divergent approaches to accommodating the dynamics of family violence in their respective homicide defences;
• in some cases, variations reflect different approaches to broader matters of criminal justice policy extending beyond the Commissions’ Terms of Reference—for example, mandatory sentencing regimes;
• there is an insufficient evidence base upon which to evaluate the operation of recent reforms in some jurisdictions because they have not yet been utilised or utilised only to a limited extent; and
• individual jurisdictions are best placed to review the operation of specific provisions, within the broader context of their respective criminal justice policies.

14.90 However, the Commissions identify several matters that should be taken into account in ensuring that the dynamics of family violence are accommodated in homicide defences. These matters—which are discussed below—are directed towards:

• ensuring that homicide defences promote substantive equality in the treatment of persons who kill in response to family violence and those who kill in response to other forms of violence;
• addressing technical limitations within existing homicide defences to recognise the full range of situational and psychological circumstances associated with family violence; and
• ensuring that relevant homicide defences are applied consistently in individual cases involving persons who kill in response to family violence.

Recognising the nature and dynamics of family violence in homicide defences

14.91 The Commissions’ view is that jurisdictions should ensure that their defences to homicide accommodate the experiences of family violence victims who kill. A common theme throughout this Inquiry has been that legal frameworks should recognise the nature and dynamics of family violence—including its impact upon victims. In the Commissions’ view, such recognition must include victims’ responses to violence. The Commissions concur that defences must recognise that:

Contemporary research on the actions of victims of abuse who kill their abusers … demonstrates they are usually motivated by fear, desperation and a belief that there is no other viable way of escaping the danger. The option of leaving the relationship is often seen as an unrealistic option; research indicates that persons who suffer violence may perceive a lack of alternatives. The history of abuse in the relationship can allow a person who has suffered violence to read cues and note changes in the abuser’s behaviour which signal the onset of escalating violence.

Decisive action for self-preservation can then be taken before the abuser is in a position to physically overpower them; that action carried out with no loss of self-control and without a deficiency in cognitive processes.

The use of violence against the abuser may be reasonable under the circumstances as the person who has suffered prolonged abuse perceives them to be, but to an ordinary person may be judged as unnecessary or excessive. Even though there may be a history of extensive abuse, because the immediate threat may be modest (viewed in isolation) the hyper-vigilance typical of a battered person may result in a killing that is not proportionate to the threat. ^[155]

14.92 For the reasons identified above, the Commissions do not recommend a particular approach as to how each jurisdiction should ensure the recognition of family violence as a defence to homicide. However, the following considerations should be taken into account in the framing of any defences.

Relevant considerations in framing defences

Equality of legal responses to family violence and non-familial violence

14.93 The Commissions consider that criminal defences should not recognise the circumstances of family violence victims in an ‘atypical context’, or typecast the reactions of family violence victims who kill as the product of ‘extraordinary psychology’.^[156] There is substantial force in stakeholders’ arguments that separate, family-violence specific defences may result in the differential treatment of persons who have killed in response to family violence, compared with those who have killed in response to non-familial violence. To this end, it is preferable for family-violence related circumstances to be integrated into existing defences of general application. In the Commissions’ view, existing defences—in particular self-defence—are doctrinally capable of accommodating the diverse situational and psychological circumstances of family violence victims.

14.94 Consistent with the Commissions views on the creation of specific family violence offences, the Commissions have reservations about creating discrete defences to address problems associated with the practical application of general defences, and recommend a cautious approach. The Commissions consider that it is preferable to focus on improving the application and effectiveness of existing defences in the family violence context through legislative clarification and guidance where necessary, and judicial and legal professional education and training. These matters are discussed further below.

14.95 In the Commissions’ view, the circumstances of family violence ought to be recognised in both complete and partial defences, given the different purposes served by each form of defence. In recognising circumstances of family violence for the purposes of an acquittal, complete defences are intended to remove all criminal liability associated with fatal responses to family violence. However, partial defences recognise the circumstances of family violence only for the purposes of avoiding a murder conviction. An exclusive focus on partial defences falls short of accommodating the circumstances of family violence because it ‘leaves untouched’ limitations in complete defences.^[157]

Addressing technical limitations in existing defences

14.96 Given the disparate and jurisdiction-specific nature of existing approaches to homicide defences, the Commissions recommend that individual jurisdictions review their existing defences with a view to assessing the extent to which they accommodate the experiences of family violence victims who kill. Such reviews should encompass:

• defences specific to family violence victims, as well as those of general application that may apply to victims of family violence; and
• both complete and partial defences, recognising the discrete purposes that each form of defence is intended to serve.

14.97 The Commissions recommend that reviews should consider:

• how the relevant defences are being used—including in charge negotiations—by whom and with what results; and
• the impact of rules of evidence and sentencing law and policy on the operation of defences.

14.98 To accommodate recent reforms in some jurisdictions, the Commissions recommend that reviews are conducted after relevant provisions have been in force for five years.^[158] These matters are the subject of Recommendation 14–2 below.

The consistent application of defences

14.99 The Commissions acknowledge that a focus on the doctrinal content of defences is insufficient to ensure that the experiences of family violence victims who kill are accommodated in practice. Continuing legal professional and judicial education is essential to ensuring that judges and lawyers practising in criminal law understand the nature and dynamics of family violence, and how evidence of family violence may be relevant to criminal defences.

14.100 In Chapter 31, the Commissions endorse the recommendation of the National Council to Reduce Violence Against Women and their Children for the production of a national family violence bench book, in consultation with states and territories, and as part of a national professional development program for judicial officers on family violence.^[159] In addition to their recommendation about the inclusion of guidance on sentencing in the family violence context, and the admission of family-violence related evidence,^[160] such a bench book should specifically address the application of defences to homicide where victims of family violence are charged with homicide offences. This is the subject of Recommendation 14–3 below.

14.101 The Commissions further endorse the recommendations of the VLRC in its 2004 report on defences to homicide, that bodies offering continuing professional development should include sessions on family violence in the criminal law.^[161] In Chapter 31, the Commissions recommend a national audit of family violence training conducted by government and non-government agencies. Such an audit should cover criminal law training, including in relation to homicide defences and criminal defences more generally.

14.102 The Commissions note that matters of legal professional education in relation to family violence in Victoria are currently under consideration in the Victorian Government review of defensive homicide.^[162] The outcomes of this review may contribute to the recommended national audit.

National consistency

14.103 The Commissions support the development of a consistent or harmonious approach by the states and territories to the recognition of family violence in defences to homicide. The Commissions consider that there is no principled justification for the differential treatment of victims of family violence solely on the basis of jurisdiction. While acknowledging that states and territories have taken different approaches to homicide defences in their respective jurisdictions, the Commissions consider that there is merit in national collaboration to identify strategies to improve inter-jurisdictional consistency. National consideration of this matter may also facilitate the sharing of information, experiences and expertise between jurisdictions about approaches to defences.

14.104 The Commissions consider that the SCAG MCLOC would be a suitable body to undertake such a task, in light of its substantial work on homicide defences in the Model Criminal Code. Consideration of this matter through the MCLOC would further provide an opportunity to identify approaches or model provisions that do not appear to have uniform support based upon jurisdictions’ implementation responses, and which may require reconsideration. This may include, for example, further discussion of the abolition of provocation and excessive self-defence, and the appropriate elements of self-defence. The issue of national consistency in homicide defences in the family violence context is addressed in Recommendation 14–4 below.

Leading evidence of family violence in homicide defences

14.105 The Commissions maintain their view expressed in the Consultation Paper that state and territory criminal legislation should provide express guidance about the potential relevance of family-violence related evidence in the context of homicide defences, in similar terms to s 9AH of the Crimes Act 1958 (Vic). This is the subject of Recommendation 14–5 below.

14.106 The Commissions consider that there is considerable merit in focusing attention on the potential relevance of such evidence in homicide defences, given its importance in these circumstances. The Commissions endorse the views of the VLRC that such a provision would assist in avoiding ‘unnecessary arguments concerning … relevance and ensure the range of factors which may be necessary to represent the reality of the accused’s situation are readily identified’.^[163]

14.107 The Commissions acknowledge the concerns identified by some stakeholders that a provision in the nature of s 9AH of the Crimes Act 1958 (Vic)may be relied upon by accused persons who have committed acts of family violence against the deceased and who are raising self-defence or defensive homicide. However, the Commissions note that the provision does not extend or otherwise alter the general rules concerning the admissibility of family-violence related evidence. In the Commissions’ view, the relevance of family‑violence related evidence in these circumstances is appropriately determined by the court in individual cases. Similarly, the weight afforded to such evidence is a matter for the trier of fact in individual cases.

Leading evidence of family violence in defences to non-fatal offences against the person

14.108 The Commissions have focused on defences to homicide due to the gravity of the consequences for family violence victims whose situational and psychological circumstances are not adequately taken into account. The Commissions acknowledge, however, that family violence victims may not always respond to violence using fatal means, or may commit offences under duress or in circumstances that may attract a defence based upon an altered state of mind as a consequence of family violence.

14.109 This raises the question of whether legislative guidance about the potential admissibility of family-violence related evidence is necessary in the context of other defences, including defences to non-fatal offences against the person, attempted fatal offences and non-violent offences committed as a consequence of family violence. The Commissions consider that state and territory governments should review whether criminal legislation should expressly allow defendants to lead evidence about family violence in the context of defences to non-fatal offences against the person.