Contents

Chapter 10
Is a partial defence justified?

Introduction

10.1Partial defences are a controversial aspect of the criminal law. Even in countries that no longer have mandatory murder sentencing, questions remain over the role they should play in determining culpability for homicide. The purpose of this chapter is to consider both in-principle arguments for and against partial defences, and the merits of some particular formulations, with reference to victims of family violence.

10.2However, we do not have a remit or the time to look at the broader question of whether a partial defence is warranted for other defendants. This presents a dilemma. As a number of submitters identified, considering partial defences in terms of a single group has the potential to lead to unintended consequences and unfairly differential treatment.782 To the extent required to assess possible consequences and potential unfairness, this chapter includes some comment on the application of partial defences to other defendants. Such comments are, however, necessarily brief. Proper consideration of these wider issues would best be undertaken as part of a first-principles review of the law relating to homicide, which would be a significant undertaking.
782This point has been made in other jurisdictions, too. See, for example, Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report (Project 97, September 2007) at 289; and Victoria Department of Justice Defensive Homicide: Proposals for Legislative Reform – Consultation Paper (September 2013) at 11.