The law reform context
Reform in other jurisdictions
4.23The legal response to victims of family violence who commit homicide has been a focus of law reform activity in a number of jurisdictions since the New Zealand Law Commission published its 2001 Report. Reviews in most states and territories of Australia, as well as in England and Wales, Ireland and Canada have all considered the availability of homicide defences to victims of family violence, either in the context of general reviews of homicide law or reviews of particular homicide defences.
4.24However, despite a concentration of law reform activity, a range of divergent approaches has emerged to address a common concern – namely, the gendered operation of homicide law and, in particular, the difficulties in accommodating the experiences of women who kill in response to intimate partner violence. While some jurisdictions reformed self-defence to ensure it accommodates the circumstances of victims of family violence, others reformed existing partial defences or introduced new partial defences with victims of family violence in mind.
4.25The range of diverging reforms can be explained in part by the different contexts in which each jurisdiction has pursued reform. While some reforms followed a broad review of homicide, others stemmed from narrower reviews of particular defences, such as provocation, which were constrained by specific terms of reference. Often, therefore, the range of reform options available for consideration was limited.
4.26It is also important to take into account the legal context in which different jurisdictions have pursued reform. The criminal justice systems in each jurisdiction differ in subtle but important ways. There is, for example, a range of approaches to murder sentencing and partial defences, and the requirements for self-defence can vary from jurisdiction to jurisdiction. These factors would likely have influenced approaches to reform. Simple comparisons of law reform pursued in different jurisdictions are not, therefore, always helpful. This said, a unifying feature of all overseas reforms has been better understanding of the circumstances in which victims of family violence – typically women – commit homicide, the features and effects of family violence and changes in social attitudes towards people who suffer abuse in intimate and family settings.
4.27Below, we summarise recent law reform activity in similar jurisdictions in relation to self-defence and partial defences.
Reforms to self-defence
4.28Reforms to the law of self-defence to accommodate the circumstances of victims of family violence have been pursued in Victoria, Western Australia and Canada and have been recently recommended in Tasmania.
4.29Reviews in other jurisdictions also identified problems with the operation of self-defence but did not recommend reform given the limited nature of those reviews. For example, the Law Commission of England and Wales noted the problems encountered by victims of family violence when claiming self-defence but considered self-defence was outside the scope of its review and so did not explore options for its reform. Similarly, the Queensland Law Reform Commission noted that the battered person “receives no assistance from the law of self-defence, which [in Queensland] requires an assault”, but because its terms of reference were limited to a review of the partial defence of provocation, it “did not research domestic violence or review the law of homicide as it applies to battered women generally”. In New South Wales, the Parliamentary Select Committee established to inquire into the partial defence of provocation also noted the significant concerns regarding the adequacy of self-defence and the need to “strengthen” the defence, but as it was not provided with “strong arguments … on what methods could effectively be used to do so”, it was unable to make a firm recommendation on the issue.
4.30Significant changes to homicide laws were introduced in Victoria in 2005, including reforms to self-defence and partial defences (discussed at paragraph [4.43] below). These reforms followed a comprehensive review of homicide defences by the Victorian Law Reform Commission (VLRC). In its 2004 Report Defences to Homicide the VLRC made a number of recommendations for reform, recognising that the existing laws of self-defence and provocation failed to accommodate the circumstances in which women commit homicide in response to family violence. The resultant changes have been held up as a “trendsetting” example of reforms to “remediate gender imbalances in legal responses”.
4.31The VLRC noted the New Zealand Law Commission’s recommendations in the 2001 Report relating to self-defence (discussed at paragraph [4.7] above) and agreed that the legislation should specify that self-defence may be available “when the person believes that the harm to which he or she responds is inevitable, whether or not it is immediate”. The VLRC also recommended the legislation specify that self-defence may be available “even though the force used by that person exceeds the force used against him or her”. In addition to recommending changes to the substantive law of self-defence, the VLRC also made recommendations to support the improved operation of self-defence, including for specific evidence provisions to provide better guidance to judges and lawyers about the sort of evidence that may assist a jury to assess whether the defendant acted in self-defence where there is a history of prior violence, and a recommendation for improved family violence education and training for Police, lawyers and judges.
4.32The VLRC’s recommendations were largely adopted and, with some modifications, introduced into law by the Crimes (Homicide) Act 2005 (Vic). That Act provides that self-defence is not excluded even if a person is responding to a harm “that is not immediate” or if the response involves the use of force “in excess of the force involved in the harm or threatened harm”. However, this applies only where “self-defence in the context of family violence is in issue”, despite the VLRC’s recommendation that the proposed changes should be generally applicable. An evidence provision setting out the kind of family violence evidence that might be relevant where self-defence is in issue was also introduced.
4.33In 2014, further amendments to self-defence, consistent with the VLRC’s recommendations, were introduced. At the same time, a provision was introduced that enabled a defendant to request that the trial judge give a jury direction on family violence where self-defence is claimed. The jury direction is aimed at countering misunderstandings about how the dynamics of family violence may affect the behaviour of family violence victims, such as why victims of family violence remain in abusive relationships.
4.34In 2007, the Law Reform Commission of Western Australia completed its review of the law of homicide and took a similar view to the VLRC in relation to the availability of self-defence to victims of family violence. In particular, it concluded that, “in order to remove any gender-bias associated with the law of self-defence in Western Australia … it should be made clear that imminence and proportionality are not decisive factors for self-defence”. However, rather than addressing these issues in the substantive provisions on self-defence, it considered the best way to achieve this was by providing that a trial judge must direct a jury about these factors, recommending:
That a new section be inserted into the Evidence Act 1906 (WA) to provide that when the defence of self-defence is raised under s 248 of the Criminal Code (WA) the judge shall inform the jury that:
(a) an act may be carried out in self-defence even though there was no immediate threat of harm, provided that the threat of harm was inevitable; and
(b) that a response may be a reasonable response for the purpose of self-defence … even though it is not a proportionate response.
4.35While the Government appeared to accept the Law Reform Commission’s conclusions, it departed from its recommendation for a jury direction, preferring instead to amend the substantive self-defence provisions to make it clear that a person may be acting in self-defence if the person “believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent”. The Explanatory Memorandum to the Bill introducing the reforms explained that:
The reference to whether or not the threatened harmful act is imminent allows this defence to apply to the battered spouse scenario so long as the response is reasonable in the circumstances as the person believed them on reasonable grounds to be. The requirement that the response be reasonable would preclude pre-emptive attacks where it would instead be reasonable for police to be called.
4.36As this amendment was made to the substantive provision on self-defence, it has general effect, unlike in Victoria, where the 2005 self-defence reforms apply only where family violence is in issue. Western Australia also departed from the approach in Victoria and the recommendations of the Law Reform Commission of Western Australia by not adopting the recommendation regarding “proportionate response”. Other recommendations for guidance on the relevance of family violence evidence in the context of self-defence have also not yet been adopted.
Self-defence in other jurisdictions
4.37The reforms to self-defence in Victoria, and in particular the family violence evidence provisions, have been endorsed elsewhere in Australia. In 2010, the Australian Law Reform Commission and the New South Wales Law Reform Commission published a joint Report: Family Violence – A National Legal Response. That Report considered whether the current defences to homicide available to victims of family violence were adequate across the different Australian jurisdictions. Without making specific recommendations as to what defences should be available, they recommended that states and territories adopt evidential provisions along the lines of the Victorian provisions:
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) …
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’.
4.38In New South Wales, while the Parliamentary Select Committee considering provocation did not make recommendations to reform self-defence as noted above, it did endorse the family violence evidence provisions in Victoria and recommended:
That the NSW Government introduce an amendment similar to section 9AH of the Victorian Crimes Act 1958, to explicitly provide that evidence of family violence may be adduced in homicide matters.
4.39In 2015 the Tasmania Law Reform Institute reviewed the law of self-defence in that State and made recommendations for reform broadly consistent with the self-defence reforms in Victoria, including clarification of the substantive law, as well as family violence evidence provisions and jury directions.
4.40In Canada, reforms were introduced in 2011 to simplify the law of self-defence. These reforms clarify that the jury must engage in a contextual analysis of the reasonableness of self-defence claims. They also codified an earlier ruling of the Supreme Court of Canada in R v Lavallee that imminence was only a factor to be considered when a defendant is responding to family violence as opposed to being a requirement. Other relevant factors listed in the legislation include “the nature and proportionality of the person’s response to the use or threat of force” and the size, age, gender and physical capabilities of the parties in the incident.
4.41The Law Commission of Ireland, when considering the codification of self-defence, took a different approach, recommending that the requirements for imminence and proportionality remain but that, to address the “difficult cases” such as family violence killings, the circumstances as the accused reasonably believed them to be should be taken into account. The Commission’s recommendation to codify self-defence has not yet been implemented.
Review and reform of partial defencesTop
4.42In jurisdictions with partial defences, there has been considerable focus on improving their availability to victims of family violence. Some jurisdictions have reformed existing partial defences, while others have introduced new defences designed with victims of family violence in mind, but no jurisdiction has created a new partial defence for victims of family violence where no general partial defence already existed. The various partial defences operating in other jurisdictions are discussed in Chapter 10. Below, we briefly summarise key reform activity in Australia, England and Wales, and Canada.
Victoria and Western Australia
4.43In addition to recommending reforms to self-defence, the VLRC also recommended the abolition of provocation, taking the view that degrees of culpability should generally be dealt with through the sentencing process rather than through the continued existence of partial defences. However, an exception to this approach was made in relation to excessive self-defence, which it recommended be reinstated, noting that it would provide a partial defence to victims who kill in response to family violence but who cannot rely on self-defence. The Crimes (Homicide) Act 2005 (Vic) repealed provocation, but rather than introducing a new partial defence of excessive self-defence, a new offence of “defensive homicide” was introduced, which operated as an alternative verdict to murder where a defendant acted defensively but did not have reasonable grounds for that belief (and therefore could not claim self-defence).
4.44Similar recommendations were made by the Law Reform Commission of Western Australia, but the recommendation to repeal provocation was on the basis that the mandatory penalty of life imprisonment for murder also be abolished in favour of a presumptive life sentence. As in Victoria, a key rationale for Western Australia’s introduction of excessive self-defence was accommodation of victims of family violence who committed homicide but could not rely on self-defence. There was a concern that, without a partial defence “some women may be unjustly convicted of murder if the extremity of their circumstances was not recognised in a trial”. The Criminal Law Amendment (Homicide) Act 2008 (WA) repealed provocation and enacted the partial defence of excessive self-defence.
4.45While excessive self-defence remains a partial defence in Western Australia, defensive homicide proved problematic in practice and was repealed in Victoria in 2014. The Victorian Department of Justice identified several problems with the operation of defensive homicide. First, there were inherent problems in trying to distinguish between conduct that amounted to self-defence and conduct that amounted to defensive homicide (or excessive self-defence). Second, while defensive homicide was intended as a safety net for victims of family violence, the Department considered that:
On balance … it is difficult to conclude that this offence clearly works to the benefit of women who kill in response to family violence. Accordingly, it is not clear that it achieves its intended objective. Further, defensive homicide may work to the detriment of women who kill in response to family violence and its existence may inhibit attempts to drive further cultural change in consideration the situation of women who kill in response of family violence.
4.46The Department was, in particular, concerned that the existence of defensive homicide risked suggesting that a woman who kills in response to family violence “is not acting reasonably, or will often not be acting reasonably, and therefore, it is better to plead guilty to defensive homicide than raise self-defence at trial”. Finally, the Department identified “clear evidence that defensive homicide inappropriately provides a partial excuse for men who kill”.
4.47In a review of the defence of provocation in 2008 the Queensland Law Reform Commission concluded “there can be no doubt that the law of provocation, as it presently works in Queensland does not satisfy the test of substantive gender equality” but recommended retention of the defence on the basis that the mandatory life sentence for murder was to remain. The Commission recommended reform of provocation to ensure it was not available to those who kill out of sexual possessiveness or jealousy, but to accommodate victims of family violence who kill abusers, it preferred the creation of a separate defence for battered persons rather than distorting the defence of provocation.
4.48A new partial defence of “killing for preservation in an abusive domestic relationship” was subsequently introduced in 2010. If successfully argued, this defence would reduce murder to manslaughter where the victim had committed acts of serious domestic violence against the defendant in the course of an abusive domestic relationship and where the defendant believed, on reasonable grounds “having regard to the abusive domestic relationship and all the circumstances of the case”, that it was necessary for their preservation from death or grievous bodily harm to do the act or make the omission causing the death.
4.49The introduction of a specific partial defence was (and remains) a novel approach to unique circumstances. As noted above, the Queensland Law Reform Commission was operating under terms of reference limited to a review of provocation and with a clear direction of “the Government’s intention not to change the [mandatory life sentence for murder]”. The test for self-defence in Queensland is also substantially narrower than in other Australian jurisdictions. The Queensland approach has attracted criticism from commentators and law reform bodies on the grounds it may jeopardise self-defence claims by victims of family violence and, as a partial defence, is less helpful than sentencing discretion to recognise mitigating factors and is problematic to the extent it is confined to a single category of defendant.
New South Wales
4.50The Parliamentary Select Committee established in New South Wales to review provocation recommended its retention and reform in 2013. One factor in the Committee’s decision to retain provocation was the concern that self-defence did not properly accommodate the circumstances of victims of family violence who commit homicide. The Committee recommended that provocation be reformed, including reforms to ensure that it:
- was more accessible to victims of family violence by removing the requirement for a loss of self-control; and
- was not available except in cases of “gross provocation” where the defendant had a justifiable sense of being seriously wronged to ensure it did not provide a partial defence to undeserving offenders.
4.51New South Wales replaced provocation with “extreme provocation” in 2014, which requires that the conduct of the deceased constitute a “serious indictable offence”. The requirement for a loss of control remains, but the legislation provides that it need not occur immediately before the act causing death.
England and Wales
4.52In England and Wales, provocation was replaced with the partial defence of “loss of control” following a 2004 review of partial defences by the Law Commission of England and Wales.
4.53The partial defence of loss of control is restricted to cases where the defendant has lost self-control in response to a “qualifying trigger”. A loss of self-control will have a “qualifying trigger” if it is attributable to either “circumstances of an extremely grave character”, which “caused [the defendant] to have a justifiable sense of being seriously wronged”, or a “fear of serious violence from [the deceased] against [the defendant] or another identified person”. In this way, the partial defence has been modernised and is:
… designed to make a formal statement of symbolic value, in this instance by turning on its head the law’s former implicit endorsement of male violence against unfaithful wives in the way that it shaped the categories of admissible provocation (“qualifying triggers”).
4.54The inclusion of “fear of serious violence” as a qualifying trigger was drafted with victims of family violence in mind. It is novel, extending the partial defence of provocation to cases where a defendant overreacted to a fear of serious violence with unreasonable force. This was intended to capture scenarios traditionally caught by defence-based partial defences like excessive self-defence. The defence also excludes anything “said or done constitut[ing] sexual infidelity” as a qualifying trigger.
4.55Some commentators have criticised the English approach on the basis it adds to the increasingly complex role of the jury in homicide trials. The VLRC considered but rejected the English model because:
… the provision proposed by the Law Commission [of England and Wales] does not overcome the very real concerns we have about provocation providing a proper basis for a defence. In particular … it remains an overly subjective assessment of what constitutes sufficient provocation, and involves speculation about how a person might have reacted in the circumstances. While recognising anger as a possible motivator, the provision explicitly excludes actions carried out “in premeditated desire for revenge”.
Reform of partial defences in other jurisdictions
4.56In Canada, provocation was restricted in 2015 to serious indictable offences punishable by five years or more in prison to ensure a less serious act or insult would no longer be sufficient in claiming provocation. Provocation in Canada continues to require a sudden loss of self-control. In contrast, the Law Commission of Ireland recommended that provocation should not be limited to unlawful conduct of the deceased, and that insulting words and gestures that are unacceptable by ordinary community standards should be capable of amounting to provocation, but that provocation should not require the provocation to have occurred immediately before the act causing death.
4.57Some jurisdictions in Australia have also reformed provocation to exclude non-violent sexual advances. This issue was considered by the Parliament of South Australia in 2013, and a 2014 Report of the Legislative Review Committee recognised this issue, as well as wider concerns with the operation of provocation, but was unable to settle on options for broader reform. Following a high profile court case, the issue is now being reconsidered by that Committee.
4.58In 2015, the Tasmania Law Reform Institute considered, but did not recommend a partial defence for Tasmania. In doing so it observed the experience with defensive homicide in Victoria and noted that, unlike Queensland, Tasmania has a broad and flexible self-defence test and discretionary sentencing for murder.
4.59It is apparent from this brief introduction to overseas law reform activity that a number of comparable jurisdictions have examined the criminal law’s response to victims of family violence who commit homicide. These jurisdictions have recognised, to varying degrees, the difficulties these defendants face in relying on self-defence and establishing reduced culpability where self-defence is not available. It is, however, also apparent there is a range of approaches to reform, but no best practice exists. As we explore in Parts 2 and 3 of this Report, an understanding of the different legal contexts and prevailing policy choices (most obviously, around the mandatory sentence for murder) is crucial to any evaluation of the merits and disadvantages of particular options for reform.