Defences to Homicide - Recommendations

Provocation

1.   The partial defence of provocation should be abolished. Relevant circumstances of the offence, including provocation, should be taken into account at sentencing as they currently are for other offences. (Refer to draft s 4 Crimes Act 1958 in Appendix 4)

Self-Defence, Duress and Necessity

2.   The law of self-defence and other defences to homicide should be codified in Victoria and included in a new part in the Crimes Act 1958. (Refer to draft Part 1C Crimes Act 1958 in Appendix 4)

3.   Factors which may assist the jury in determining whether a person who was subjected to family violence by the deceased acted in self-defence or under duress should be included in a separate provision on evidence. (See also Recommendations 25–34)

Self-Defence

4.   The new provision on self-defence in the Crimes Act 1958 should specify that:

  • a person may believe that the conduct carried out in self-defence is necessary; and
  • a person's response may be reasonable—

when the person believes the harm to which the person responds is inevitable, whether or not it is immediate. (Refer to draft s 322I(3) Crimes Act 1958 in Appendix 4)

5.   The new provision on self-defence in the Crimes Act 1958 should specify that the use of force by a person may be a reasonable response in the circumstances as the person perceives them, even though the force used by that person exceeds the force used against him or her. (Refer to draft s 322I(4) Crimes Act 1958 in Appendix 4)

6.   The New South Wales formulation of self-defence, based on the Model Criminal Code provisions, as they apply to the offences of murder and manslaughter, should be adopted in Victoria. Under this formulation, a person is not criminally responsible for the offence if the person believes the conduct is necessary:

  • to defend himself or herself or another person; or
  • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person; and
  • the conduct is a reasonable response in the circumstances as the person perceives them. (Refer to draft s 322I(1)–(2) Crimes Act 1958 in Appendix 4)

7.   In any criminal proceeding for murder or manslaughter in which self-defence is raised, the prosecution has the onus of proving beyond reasonable doubt that the person did not carry out the conduct in self-defence. (Refer to draft s 322H(1) Crimes Act 1958 in Appendix 4)

8.   Self-defence should not be available if:

  • the person is responding to lawful conduct; and
  • at the time of the response, he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it. (Refer to draft s 322J Crimes Act 1958 in Appendix 4)

 9.   The partial defence of excessive self-defence should be reintroduced in Victoria. The partial defence should apply:

  • if a person uses force that causes or contributes significantly to the death of another; and
  • the conduct is not a reasonable response in the circumstances as the person perceives them; but
  • the person believes the conduct is necessary to:

      (a) defend himself or herself or another person; or

      (b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.

      In these circumstances the person is not criminally responsible for murder, but on a trial for murder is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. (Refer to draft s 322K Crimes Act 1958 in Appendix 4)

10.    A review of the operation of excessive self-defence should be carried out by the Department of Justice after the provision has been in force for a period of five years. The review should include investigation of how the defence is being used, in what circumstances, by whom and with what outcome.

11.    The Office of Public Prosecutions should develop guidelines that allow a person to be charged with manslaughter on the basis of excessive self-defence in homicide cases where there is strong evidence to suggest the accused had a genuine belief his or her actions were necessary in self-defence.

12.    The Office of Public Prosecutions should develop guidelines requiring the documentation of all plea negotiations in homicide cases, including written and verbal offers or representations by the defence.

Duress and Extraordinary Emergency

13.    Duress and extraordinary emergency should be available as defences to murder and manslaughter in Victoria.

14.    A person should not be held criminally responsible for murder or manslaughter if the person believes that:

  • a threat has been made that will be carried out unless the person kills another person;
  • there is no other way the threat can be rendered ineffective;
  • the belief is reasonable in the circumstances; and
  • the person’s conduct is a reasonable response to the threat. (Refer to draft s 322L(1)–(2) Crimes Act 1958 in Appendix 4)

15.    The person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. (Refer to draft s 322L(3) Crimes Act 1958 in Appendix 4)

16.    A person should not be held criminally responsible for murder or manslaughter if the person’s conduct is a response to circumstances of sudden or extraordinary emergency.

      (Refer to draft s 322M(1) Crimes Act 1958 in Appendix 4)

17.    The defence of extraordinary emergency only applies if:

  • circumstances of sudden or extraordinary emergency exist;
  • committing the offence is the only reasonable way to deal with the emergency; and
  • the conduct is a reasonable response to the emergency. (Refer to draft s 322M(2) Crimes Act 1958 in Appendix 4)

18.    An accused who wishes to rely on the defence of duress or sudden or extraordinary emergency has an evidential burden in relation to the matter.

19.    In any criminal proceeding for murder or manslaughter in which duress or sudden or extraordinary emergency has been raised, the prosecution has the onus of proving beyond reasonable doubt that the person did not carry out the conduct under duress or in response to circumstances of sudden or extraordinary emergency. (Refer to draft s 322H(2)–(3) Crimes Act 1958 in Appendix 4)

Intoxication

20.    If the accused was intoxicated at the time of the offence, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in determining whether that knowledge or belief existed.(Refer to draft s 322O(1) Crimes Act 1958 in Appendix 4)

21.    If the accused was intoxicated at the time of the homicide, and that intoxication was self-induced, in determining whether any part of a defence based on reasonable belief exists, or whether the accused’s response in the circumstances was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated. (Refer to draft s 322O(2)–(3) Crimes Act 1958 in Appendix 4)

22.    If the accused was intoxicated at the time of the homicide, but his or her intoxication was not self-induced, in determining whether any part of a defence based on reasonable belief or a reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same degree as the accused. (Refer to draft s 322O(4) Crimes Act 1958 in Appendix 4)

23.    Intoxication means intoxication because of the influence of alcohol, a drug or any other substance. (Refer to draft s 322N(1) Crimes Act 1958 in Appendix 4)

24.    Intoxication should be taken as being self-induced unless it came about:

  • involuntarily;
  • as a result of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force;
  • from the use of a drug for which a prescription is required and that was used in accordance with the directions of the authorised person who prescribed it; or
  • from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.

      However, if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control, his or her intoxication is taken as being self-induced. (Refer to draft s 322N(2)–(3) Crimes Act 1958 in Appendix 4)

 Evidence of Relationship and Family Violence

25.    A provision should be introduced to clarify that where self-defence or duress is raised in criminal proceedings for murder or manslaughter and a history of family violence has been alleged, evidence on the following may be relevant:

  • the history of the relationship between the person and the family member, including violence by the family member towards the person or any other person;
  • the cumulative effect, including psychological effect, on that person of that violence; and
  • the social, cultural and economic factors that impact on that person. (Refer to draft s 322P(1)(a)–(c) Crimes Act 1958 in Appendix 4)

Exceptions to the Hearsay Rule

26.    A provision should be introduced in Victoria, based on section 65(2) of the Uniform Evidence Act, to provide an exception to the hearsay rule to allow admission of evidence of a previous representation made by a person who is not available, to give evidence where the evidence is:

  • given by a person who saw, heard or otherwise perceived the representation being made; or
  • contained in a document.

This exception should apply:

  • in criminal proceedings for murder or manslaughter;
  • where the representation satisfies one of the following criteria:

      (a) it was made under a duty to make that representation or to make representations of that kind; or

      (b) it was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

      (c) it was made in circumstances that make it highly probable that the representation is reliable; or

      (d) it was against the interests of the person who made it at the time it was made.

27.    A provision should be introduced, based on sections 65(8) and 65(9) of the Uniform Evidence Act, to provide an exception to the hearsay rule to allow evidence of a previous representation made by a person who is not available to give evidence, to be adduced by the accused. This exception should apply in criminal proceedings for murder or manslaughter to:

  • evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made; or
  • a statement contained in a document tendered as evidence by the accused, so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

28.    Where evidence of a previous representation adduced by the accused has been admitted, the hearsay rule should not apply to evidence of another representation about the matter that is:

  • adduced by another party; and
  • given by a person who saw, heard or otherwise perceived the other representation being made.

29.    A provision should be introduced, based on section 66 of the Uniform Evidence Act, to provide a specific exception to the hearsay rule to allow admission of evidence of a previous representation, where a person who made a previous representation is available to give evidence and that person has been or is to be called to give evidence. This exception should apply to evidence of the representation that is given by:

  • that person; or
  • a person who saw, heard or otherwise perceived the representation being made;

      if when the representation was made the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

This exception should apply in criminal proceedings for murder or manslaughter.

30.    A provision should be introduced, based on section 60 of the Uniform Evidence Act, to provide an exception to the hearsay rule where evidence of a previous representation is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.

      This exception should apply in criminal proceedings for murder or manslaughter.

31.    A provision should be introduced, based on section 165 of the Uniform Evidence Act, providing that where evidence is admitted under provisions allowing for the admission of evidence of representations as proof of facts in issue asserted by those representations, the judge should be required to:

  • warn the jury the evidence may be unreliable;
  • inform the jury of matters that may cause it to be unreliable; and
  • warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

32.    A party should not be allowed to adduce evidence of a representation as proof of facts in issue asserted by those representations unless that party has given reasonable notice in writing to the other party of his or her intention to adduce the evidence and the facts in issue to which it is relevant.

33.    Provisions allowing for the admission of hearsay evidence to prove facts in issue should not detract from or modify common law rules allowing for the admission of evidence of statements made as proof of the fact intended to be asserted by the representation, or for another purpose.

Expert Evidence

34.    A provision should be introduced to clarify that where self-defence or duress is raised in a criminal proceeding for murder or manslaughter and the accused alleges a history of family violence, the court should recognise that the following expert social context evidence may be relevant:

  • the nature and dynamics of abusive relationships, including the possible consequences of separation from the abuser;
  • the psychological effects of abuse; and
  • social and economic factors that impact on people who are or have been in an abusive relationship. (Refer to draft s 322P(1)(d)–(e) Crimes Act 1958 in Appendix 4)

Professional Development and Judicial Education

35.    Bodies which offer continuing professional development or judicial education, including Victoria Legal Aid, the Law Institute of Victoria, the Office of Public Prosecutions, the Victorian Bar and the Judicial College of Victoria should include sessions on family violence.

36.    Professional legal education sessions on family violence should aim to assist judges and lawyers practising in criminal law to understand the nature of family violence and could include discussion of issues such as:

  • common myths and misconceptions about family violence;
  • the nature and dynamics of abusive relationships;
  • the social context in which family violence occurs;
  • barriers to disclosure of abuse and seeking the assistance of police and other service agencies, including the additional barriers faced by persons who are Indigenous, from a culturally and linguistically diverse background, who live in a rural or remote area, who are in a same-sex relationship, who have a disability and/or have a child with a disability;
  • the emotional, psychological and social impact of family violence;
  • the relationship between family violence and other offences, including murder and manslaughter;
  • how expert evidence about family violence may assist in supporting a plea of self-defence or duress;
  • the use of expert reports on family violence in sentencing.

 People with Mentally Impaired Functioning who Kill

The Defence of Mental Impairment

37.    The current mental impairment defence should be retained.

38.    A provision should be added to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 which specifies that the term ‘mental impairment’ includes but is not limited to the common law notion of a ‘disease of the mind’. (Refer to draft definition s 3(1) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in Appendix 4).

39.    The Department of Human Services, in conjunction with the Department of Justice, should conduct an ongoing evaluation of the effectiveness of the legislation. Evaluation should include data showing how often the defence is raised, how often the defence is successful and the kinds of illnesses which do and do not form a successful basis for the defence.

40.    The nominal term for mental impairment should be retained.

41.    Bodies which offer seminars and lectures for continuing professional development purposes should include material on the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and more specifically on the operation of the nominal term.

42.    The Department of Justice and the Department of Human Services should coordinate an ongoing evaluation of the operation of the nominal term and related provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Data should be collected on the following:

  • the kinds of mental illnesses which result in a successful mental impairment defence and those which do not;
  • the average period of time people managed under the Act are subject to hospital or community based orders;
  • how many people are released from hospital prior to the end of the nominal term (but remain subject to some kind of community based order);
  • how many people succeed in having their orders revoked prior to the expiration of the nominal term; and
  • how many people continue to be subject to orders (both hospital based and community based) after the expiration of the nominal term.

'By Consent' Hearings

43.    If a judge, having heard such expert evidence as may be called on the issue, is satisfied that no jury properly instructed could find the accused guilty of murder because of the accused’s mental impairment, and the prosecution and the defence agree that the accused was mentally impaired at the time of the killing, then the judge should make a finding that the accused is not guilty of the offence because of mental impairment. This evidence should be heard in a hearing before a judge alone. The judge should have a discretion to direct that the matter be dealt with by a jury. (Refer to draft section 21(4) Crimes (Mental Impairment and Unfitness to be Tried Act 1998 in Appendix 4.)

44.    Where the matter is not proceeding on a ‘by consent’ basis, that is, where there is disagreement as to whether or not the accused should be found not guilty by reason of mental impairment, the matter should proceed to trial and a jury should be empanelled. As is currently the case, a judge may remove the matter from the jury during the trial if he or she decides that, based on the evidence provided, no jury properly instructed could properly find the accused guilty of the offence.

Diminished Responsibility

45.    The partial excuse of diminished responsibility should not be introduced in Victoria. As is currently the case, mental disorder short of mental impairment, which may have a mitigating effect, should be taken into account in sentencing.

46.    The doctrine of automatism should remain unchanged.

Infanticide

47.    Infanticide should be retained as an offence and as a statutory alternative to murder. (Refer to draft s 6(2) Crimes Act 1958 in Appendix 4)

48.    Infanticide should apply where a woman has suffered from a disturbance of mind as the result of not having recovered from the effect of giving birth or any disorder consequent on childbirth. (Refer to draft s 6(1) Crimes Act 1958 in Appendix 4)

49.    The offence of infanticide should be modified by:

  • extending the offence to cover the killing of an infant aged up to two years; and
  • applying the offence to the killing of older children as the result of the accused not having recovered from the effect of giving birth or any disorder consequent on childbirth. (Refer to draft s 6(1) Crimes Act 1958 in Appendix 4)

Sentencing

50.    In sentencing an offender for murder in circumstances where the accused might previously have been convicted of manslaughter on the grounds of provocation, judges should consider the full range of sentencing options.

51.    When an appropriate case arises, the Court of Appeal should consider indicating the principles which should apply in sentencing an offender who has been subjected to abuse by the deceased and how these should be taken into account in sentencing the offender.

52.    The Sentencing Advisory Council should establish a statistical database to monitor sentencing trends in homicide cases. This database should be developed in consultation with members of the judiciary.

53.    Construction of the database should allow monitoring of sentencing trends in cases where:

  • the offender killed a person who subjected her/him to family violence;
  • the offender had previously subjected the deceased to violence;
  • the offender acted under provocation from the deceased; and
  • the offender was suffering from a mental condition at the time of the killing.

54.    In consultation with the judiciary, the Sentencing Advisory Council should establish processes for making up-to-date sentencing information about homicide cases available to judges.

55.    The Judicial College of Victoria should offer judicial education on sentencing in homicide cases, in collaboration with the Sentencing Advisory Council.

56.    The Sentencing Advisory Council should provide public education on sentencing in homicide cases.

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