Defences to Homicide
Tabled in Parliament Date:
How should the criminal law deal with the range of situations in which people kill others? How should their culpability be assessed when individual factors vary so greatly? These were the central questions in the Commission’s review of the legal defences to homicide in Victoria.
The inquiry began in September 2001 with a reference from the Attorney-General. In 2003, the Commission published an options paper and conducted extensive consultations.
Tabled in Parliament on 18 November 2004, our final report recommended the abolition of the partial excuse of provocation, changes to the definition of self-defence, the recognition of excessive self-defence as a partial defence and the introduction of expert evidence about family violence.
The recommendations sought to reflect appropriate culpability for homicides that occur where there has been ongoing family violence.
- Terms of reference received
- Submissions and consultations
- Submissions closed
- Final Report
- Tabled in parliament
What was recommended?
Final report—Key recommendations
18 November 2004
- The abolition of the partial defence of provocation. Currently, if the accused can prove he or she was provoked to kill, (that is, loses self control because of the actions or words of another) then a murder charge can be reduced to manslaughter. The Commission believes that a person who kills intentionally should be convicted of murder; in appropriate cases provocative circumstances can be taken into account at sentencing.
- The reintroduction of the partial defence of excessive self-defence. This partial defence was abolished in 1987, but the Commission believes it should be reintroduced to cover cases where the accused uses more force than is necessary, but genuinely believed his or her life or another person’s life was at risk.
- Allowing the jury to hear evidence to prove and explain a history of family violence. This includes some hearsay evidence, that is when other people recount what the accused has told them and evidence from the accused about past complaints made about the violence. Changes are also recommended to encourage courts to recognise expert evidence about the social, economic, physical and psychological effects of abuse as relevant and admissible in circumstances where the accused has killed his or her abuser.
- Professional development and education for judges and lawyers about the dynamics of family violence and its social, economic, physical and psychological effects.
- The introduction of the defences of duress and extraordinary emergency. Duress will cover cases where the accused has killed someone because their own life is threatened. Extraordinary emergency will cover cases where the accused killed someone to save the lives of other people, for example where a pilot intentionally crashes a plane to avoid hitting a school.
- The retention of infanticide as an offence and statutory alternative to murder. Currently, infanticide is available only if the child killed was under 12 months of age. Under our recommendations, a woman who kills a child of any age will be able to be convicted of infanticide, rather than murder, if the killing was due to a mental disturbance caused by or following the birth of a child under 2 years of age.
- The retention of the defence of mental impairment. The definition of mental impairment is amended so it is not limited to a “disease of the mind”.
18 November 2004
- Each year in Australia there are about 129 family homicides. About 77 of these are “intimate partner” homicides – Australian Institute of Criminology (AIC).
- The Commission’s study of Victorian homicides between July 1997 and June 2001 found one-third involved intimate partners, making it the most common category. Violence used to settle a dispute accounted for 16.8% of homicides and “spontaneous killings”, usually as the result of a fight, accounted for 11.9%.
- The majority (75%) of intimate partner homicides in Australia involve men killing women – (AIC). The Commission’s study found 81% of such homicides had been committed by men.
- Polk’s 1994 study found female victims were most likely to be killed by an intimate partner, and male victims by a friend or acquaintance.
- The Commission’s study confirmed past research that men in intimate partner homicides tend to kill out of jealousy or a desire to control their partners or ex-partners, while women tend to kill in response to violence.
- A number of studies have found Indigenous women are more likely than other women to be the victims of homicide: Strang (1992) found they were 10 times more likely than non-Indigenous women to be the victim of homicide and Keys Young (1998) found they were 6.5 times more likely than non-Indigenous women to die a violent death.
- The AIC found that two out of five intimate partner homicides in Australia involved people with a known history of family violence.
- A history of family violence is often involved in cases where women kill their partners. In the Commission’s four-year study it was known to be present for four out of the ten women accused, while Wallace’s 1986 study puts it at 70% and Bradfield’s 20-year study found it in 65 of the 76 cases of women accused of murdering their partners.
- Family violence is rarely reported. A 1996 Australian Bureau of Statistics survey found that only 4.5% of women who had been assaulted by their partner contacted a domestic violence crisis service, 19% contacted the police and 58% said they had talked to a friend or neighbour about the assault.
Final report—Provocation cases
18 November 2004
The partial defence of provocation developed in the 1600s when breaches of honour were seen as a great affront to a person and an angry response was expected. Provocation allowed people who killed to defend their honour to be imprisoned rather than receive the mandatory death sentence.
A partial defence to homicide can result in an accused person who has intentionally killed another person being convicted of manslaughter rather than murder. By abolishing provocation, the State removes the chance for people to argue they were provoked into killing, even though their life or safety had not been threatened.
Provocation is not a common defence in Victoria, but it is often used by men who kill their partners or ex-partners following the breakdown of a relationship out of jealousy or the need for control, and when the victims of family violence kill their abusers.
Some organisations and individuals are worried that victims of family violence will be disadvantaged if the defence is abolished. In the past some women have relied on provocation because they have found that self-defence doesn’t adequately take account of the circumstances of family violence.
The Commission is confident that changes to the defence of self-defence, the introduction of the partial defence of excessive self-defence, and changes to the type of evidence that can be given, will give these people a better opportunity to explain their situation and actions to juries.
In the Commission’s study (1 July 1997–30 June 2001) of 182 people accused with committing a homicide, 24 men raised provocation as a defence and 12 of these related to intimate partner homicides. Four of the men were successful in raising provocation as a defence involving intimate partner homicides. In the same study, three women unsuccessfully raised provocation as a defence.
Recent Australian cases where provocation has successfully been used as a defence to murder or has been a point of appeal to the High Court or Victorian Court of Appeal include: Ramage v R (2004), R v Yasso , R v Hunter , R v Farfalla , R v Abebe , R v Teeken , Green v R (1997), Secretary v DPP (1996) and Masciantonio v R (1995).
Final report—Evidence reforms
18 November 2004
Jury members use their own experience and knowledge, along with the evidence presented to them, to decide the guilt or innocence of the accused.
Most jury members do not have experience with the kinds of violence and behaviour that are typical of people committing or suffering from family violence. The Commission is recommending changes to evidence laws for homicide cases so juries are given all the background information they need to judge the actions of others.
The Commission is recommending courts allow juries to hear the following types of evidence:
- 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.
- The social, cultural and economic factors that impact on that person.
- Expert evidence about the dynamics of family violence.
In most family violence incidents the only witnesses are the people involved. If those people tell others about what has happened to them or what they have done, then those comments could be useful to juries. For this reason, the Commission is recommending changes to the hearsay evidence rule. Hearsay evidence is commonly referred to as second-hand evidence, that is, the comments are not made in court. These changes would allow friends, family and professionals to talk about incidents or comments that had been told to them, and allow documents such as diaries and letters to be used as evidence that the violence took place.
To help jurors understand why a person subject to abuse stays in a relationship, the Commission recommends a wide range of evidence be introduced to explain the person’s state of mind, this includes:
- the number of times the person had called the police and the outcomes of their visits;
- the number of times the person had tried to leave in the past and the outcomes;
- knowledge about services available, especially for immigrant women;
- what had happened when the person had tried to enlist the support of family and friends;
- what had happened when the person had tried to fight back; and
- whether the person was employed, or had the means to flee to a safe and affordable place.
This evidence can show how some people reach a point where they think there is no other way out than to kill their abuser.