08 October 2013

Defensive Homicide

The Victorian Department of Justice has released a consultation Paper on Defensive Homicide: Proposals for Legislative Reform.

The paper states that
Defensive homicide has now been in operation in Victoria for more than seven years. In recent years, it has attracted considerable public attention. This has included the criticism that it is not producing the results that were intended and calls for its abolition. The first step in the department's review of defensive homicide led to the publication of a Discussion Paper in August 2010. While defensive homicide is the primary focus of the review, the review also considers the operation of self-defence more generally and the way in which the criminal justice system works in cases where a woman kills in response to family violence. Since the Discussion Paper, the number of defensive homicide convictions has increased from 13 to 28. This has included the conviction of three women for the offence of defensive homicide. These cases, as well as cases in which men have been convicted of defensive homicide, shed further light on the operation of the reforms introduced by the Crimes (Homicide) Act 2005. The data from the 28 convictions for defensive homicide indicates that:
  • the overwhelming majority of offenders were men (25 out of 28) 
  • the overwhelming majority of victims were men (26 out of 27) 
  • all three female offenders killed a man (3 out of 3) 
  • a minority of offenders had a family relationship with the victim (7 out of 28) 
  • a majority of the intimate partner killings were by women (3 out of 4) 
  • the majority of offenders pleaded guilty (19 out of 28), and 
  • the majority of female offenders pleaded guilty (2 out of 3).
These figures should be considered in the context of family violence killings. The Australian Institute of Criminology found that in 2008–09 and 2009–10:
  • 66% of domestic homicides were intimate partner homicides 
  • 88% of all homicide offenders were men and 12% were women, and 
  • 68% of all homicide victims were men and 32% were women.
A number of criticisms of defensive homicide concern the structure of the offence and suggestions that excessive self-defence would be better recognised as a partial defence to murder (resulting in a conviction for the offence of manslaughter), rather than an offence. This also raises the issue of the complexity of defensive homicide and excessive self-defence. In Part 2 of this paper, the department has identified ways in which the complexity of defensive homicide could be reduced. However, there is an irreducible level of complexity involved in any form of excessive self-defence. 
Changes to reduce the complexity of defensive homicide are unlikely to make any significant difference from a policy perspective to the outcomes of the application of defensive homicide. Excessive self-defence was recommended by the VLRC as a 'safety-net' to support women pleading not guilty to murder and manslaughter and running a complete self-defence case. Whether a ‘safety-net’ is required depends upon the effectiveness of complete self-defence in the context of a woman who kills in response to family violence. The changes to self-defence in the context of family violence appear to have made a difference. However, it is not possible to draw definitive conclusions about how defensive homicide is likely to continue to be used by women in the future, from the small number of cases to date. 
For instance, of the three women convicted of defensive homicide to date, the Court of Appeal said that one woman fell outside the parameters of murder by a narrow margin and it could be argued that another woman potentially had a good case for self-defence but pleaded guilty to defensive homicide instead. However, it is very difficult to comment about such cases without seeing and hearing all of the evidence or the decisions that lawyers must make in deciding whether to advise their clients to plead guilty or not guilty. Further, the number of cases is insufficient to identify any discernible trend. 
One of the questions posed in the Discussion Paper was how effective self-defence would be where the threat faced was not immediate. All three of the defensive homicide cases involving female offenders involved an immediate threat. Accordingly, the new laws have not been tested in this situation. 
In over seven and a half years of operation, there has been one trial where a woman was convicted of defensive homicide and two women have pleaded guilty to defensive homicide. To obtain a small, but potentially sufficient, sample of defensive homicide trials involving women, there would need to be at least 10 trials. At the current rate, it would take 75 years before 10 women would be convicted of defensive homicide at trial. Accordingly, it would appear to require too long a period of time for definite conclusions to be drawn based on the data where women are accused, particularly since during that period, at the current rate, 250 men would be convicted of defensive homicide at a trial or by plea of guilty. Accordingly, it is important to consider defensive homicide both in policy terms as well as how it applies when men kill. 
From a policy perspective, the VLRC acknowledged that its consultations revealed that there was both support for, and opposition to, recognising excessive self-defence. Submissions received in relation to the department’s Discussion Paper also revealed mixed views about defensive homicide from a purely policy perspective. 
In some ways, defensive homicide distorts homicide laws and has unintended effects. The existence of defensive homicide shifts the focus of debate from the adequacy of complete self-defence to defensive homicide. This creates a real risk that the existence of defensive homicide suggests 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 a trial. 
On balance, the department considers that it is difficult to conclude that this defence 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 considering the situation of women who kill in response to family violence. 
There is clear evidence that defensive homicide inappropriately provides a partial excuse for men who kill. Defensive homicide is primarily relied upon by men who kill. In many of these cases, men have killed in circumstances which are very similar to those where provocation previously applied. For the following principal reasons, the department proposes that the partial defence of defensive homicide be abolished:
  • it is inherently complex, making it difficult for judges and juries, and the community, to understand and apply 
  • there is no clear benefit to having defensive homicide as part of the legal framework for women who kill in response to family violence, and 
  • it inappropriately excuses killing by men.
To date, men have comprised 25 of the 28 convictions for defensive homicide. The price of having defensive homicide for the comparatively small number of women who kill is substantially outweighed by the cost of inappropriately excusing men who kill. 
The 2005 reforms to self-defence included setting out the social context evidence that is relevant in cases of family violence. This was a significant and important change. However, defensive homicide may detract from the position that a woman who kills in response to family violence should rely on self-defence laws. 
The ability to introduce social context evidence to better understand family violence, its dynamics and its effects was limited to homicide offences. Self-defence may be relevant to many other offences and family violence may be a relevant factor in considering self-defence in relation to other offences. For instance, a woman who attempts to kill or cause serious injury to her partner in response to family violence should also be able to adduce social context evidence to explain why she was acting in self-defence. 
Accordingly, the department proposes removing the limit on using social context evidence laws only in homicide cases. Such evidence should be available wherever self-defence may be raised. Further, greater use of social context evidence in relation to a number of offences should result in the legal profession and the courts: being more familiar with the laws governing this kind of evidence, and better understanding the ways in which this kind of evidence may be relevant. In turn, this should improve the effectiveness of social context evidence laws when used in homicide cases. 
The proposals in this paper include having one test for self-defence which applies to all offences (as was the case before 2005). Even before defensive homicide laws were introduced, Victoria’s selfdefence laws differed from those in other jurisdictions in Australia. Most other states in Australia have changed their test for self-defence. The second limb of the common law test focused on whether the person had reasonable grounds for believing it was necessary to do what they did. The VLRC Report recommended that this be changed to the test used in other jurisdictions, including New South Wales. That test is whether the person’s response was reasonable in the circumstances as perceived by them. 
The VLRC recommendation provides a more objective test as it focuses on the person’s response, rather than their grounds for believing action was necessary. However, it is not fully objective because, like the common law test, it must be determined in accordance with the circumstances as perceived by the person. 
The paper includes a discussion of both of these proposals and asks whether Victoria should adopt the common law test or the test recommended by the VLRC. 
Evidence about homicide victims 
A number of submissions identified problems with the evidence that is led in some homicide trials about homicide victims. The abolition of provocation may have reduced ‘victim blaming’, but it continues to be a problem. This paper suggests two new ways of tackling this issue. First, by modifying existing laws concerning ‘improper’ questions (e.g. questions that are offensive, demeaning or based on stereotypes) so that they apply to questions asked about a homicide victim. This would prohibit these questions unless they are necessary in the interests of justice. Secondly, by adapting character evidence laws to enable the prosecution to lead evidence in rebuttal to address issues raised about the victim that bear on the issues in the case. 
These two potential reforms aim to limit victim blaming and inappropriate questioning. Sometimes questions which may be regarded as offensive or damaging to the victim’s reputation are integral to the issues in dispute in the case. These potential reforms would not prevent such questions from being asked if they are relevant and necessary as part of the accused’s defence. However, where this evidence concerns the homicide victim’s character, the possible reforms would enable the prosecution to lead evidence to the contrary to provide the jury with a more complete picture of the issues in the case. 
This new capacity for the prosecution to lead evidence of the victim’s good character may in some cases deter particular lines of questioning by removing the unfair advantage that may arise because the homicide victim is not a witness in the proceeding. The potential reforms would remove any unfair advantage the accused may have while being consistent with the accused’s right to a fair trial. This paper asks whether these two potential reforms should be introduced. 
Monitoring and reviewing 
The proposals in this paper involve significant reforms. The VLRC recommended that the department review the operation of excessive self-defence five years after it had commenced operation. That recommendation fixed an appropriate time frame for reviewing such an important change. 
The department’s proposals (as informed by comments on this paper) should, if enacted by the government, also be reviewed to see if they achieve the intended outcomes. The department proposes that these laws should be reviewed five years after their commencement. 
The paper identifies several proposals and questions -
Proposal 1 – Defensive homicide (Part 2)  –  that the offence of defensive homicide be abolished. 
Proposal 2 – Excessive self-defence (Part 2)  –  that excessive self-defence (in any form) should not be introduced. 
Proposal 3 – Self-defence (Part 3)  –  that the first limb of the common law test of self-defence should be reinstated, namely, whether the accused believed that it was necessary to do what he or she did to defend himself, herself or another. 
Question 1 – Self-defence (Part 3) Should the test for self-defence be that the accused believed that it was necessary to do what he or she did to defend himself, herself or another, and (a) had reasonable grounds for that belief (the common law test), or (b) the accused’s response was a reasonable response in the circumstances as perceived by the accused (the VLRC / NSW test)? 
Proposal 4 – A consistent test for self-defence (Part 3)  –  that the test for self-defence should be set out in the Crimes Act 1958 and should apply consistently to fatal and non-fatal offences. 
Proposal 5 – Abolition of the common law test for self-defence (Part 3)  –  that the common law test for self-defence be expressly abolished, wherever the new statutory test for self-defence applies.  
Proposal 6 – Social context evidentiary laws (Part 3)  –  that the social context evidence laws contained in section 9AH of the Crimes Act 1958 be extended to apply to any claim of self-defence and not be limited to where the offence charged is murder or manslaughter. 
Question 2 – Improper questions about homicide victims (Part 4) Should new evidence laws be introduced to prohibit questions in a homicide case about the victim (unless necessary in the interests of justice) where, if the victim was alive and giving evidence in court, the question would: be offensive, humiliating or demeaning to the victim treat the victim without respect fail to respect the victim’s reputation, or have no basis other than a stereotype (e.g. a stereotype based on the victim's sex, race, culture, ethnicity, age or mental, intellectual or physical disability)? 
Question 3 – Evidence in rebuttal about homicide victims (Part 4) Should new evidence laws be introduced to provide that in a criminal proceeding for a homicide offence, if the accused introduces evidence to show that the victim was not a person of good character, either generally or in a particular respect, the prosecution: may adduce evidence about the victim to show that the victim was a person of good character, either generally or in a particular respect, but may not use the evidence to infer guilt (tendency reasoning)? The rules governing hearsay, opinion, tendency and credibility evidence would not apply to this evidence. 
Proposal 7 – Review of the operation of reforms (Part 5)  –  that there be a review of the operation of reforms arising from this review five years after the reforms commence operation.