25 July 2016


'The Abolition of Defensive Homicide: A Step Towards Populist Punitivism at the Expense of Mentally Impaired Offenders' by Madeleine Ulbrick, Asher Flynn and Danielle Tyson in (2016) 40(1) Melbourne University Law Review comments
The offence of defensive homicide was abolished in Victoria in November 2014, following a widely held perception that it was being abused by violent men. While primarily associated with battered women who killed in response to prolonged family violence — but who were unable to establish their offending as self-defence — a less publicised rationale underpinning the introduction of defensive homicide was to provide an alternative offence for offenders with cognitive impairments not covered by the mental impairment (formerly the insanity) defence. Cognitive impairments are complex and varied in their nature and symptomatology. Offenders presenting with cognitive impairments therefore require an appropriate range of legal responses to capture the nuances and appropriate moral culpability of their conduct. Drawing from an analysis of the cases of defensive homicide heard over its 10–year lifespan, this article contends that the abolition of defensive homicide did not adequately take into consideration the potential impacts on individuals whose mental conditions are not typically covered by the restrictive mental impairment defence. We further argue that the decision to abolish defensive homicide was driven by dominant, populist voices, without sufficient attention given to the offence’s potential to achieve the aims underpinning its enactment, including providing an alternative offence for women who kill in response to prolonged family violence.
The authors argue
In the study of homicide, while mental illness (specifically psychotic illness) has been a common subject of investigation, this has ‘not produced a thorough understanding of mental incapacity’. Moreover, the perpetual focus on exculpation at law has ‘marginalized’ the discourse around other ways in which mental impairment can be dealt with before the law. In turn, offenders with cognitive impairments have received comparatively less academic attention. In our view, a key implication of this is that cognitive impairments are not well understood and consequently the law in this area remains unclear and uncertain.
Between 2005 and 2014, the offence of defensive homicide operated in Victoria under s 9AD of the Crimes Act 1958 (Vic), creating a safety net for an accused person who used lethal violence in circumstances of a mental illness or impairment that did not amount to the restrictive defence of mental impairment. The defensive homicide offence captured the circumstances of a fatality, where a person killed with a genuine belief that they were acting in self-defence, but where that belief was proven to be unreasonable. Accordingly, this offence sat between murder and manslaughter in terms of legal and moral culpability.
During its almost 10–year operation, 20 offenders who presented evidence of experiencing a history of mental health problems — ranging from formal diagnoses of schizophrenia, bipolar, paranoia and trauma-related mental illness, to cognitive impairments and intellectual disabilities — were convicted of defensive homicide. Fourteen of these offenders had a guilty plea accepted by the Crown; the remaining six offenders were found guilty of this alternative offence following trial.
This article presents findings from an empirical study of defensive homicide cases and sentencing judgments from the introduction of the offence in November 2005, up until 21 September 2015. Over the 10–year period, we identified 34 defensive homicide convictions. However, due to privacy restrictions on one case, we were only able to access detailed information on 33 cases. Of the 33 accessible cases, 23 (70 per cent) involved the Crown accepting an accused’s guilty plea to defensive homicide, while the remaining 10 convictions involved a guilty verdict following trial. Eighty two per cent (n=27) of the cases involved a male perpetrator and male victim; 15 per cent (n=5) involved a female perpetrator and a male victim; and one case involved a male perpetrator and female victim. In this article, we focus on the 15 cases that involved male perpetrators who presented evidence of a history of mental illness and impairment, which were: (a) acknowledged by the judge in sentencing; and (b) acknowledged by the Crown in accepting a guilty plea, or the jury in reaching a guilty verdict for this alternative offence to murder. While drawing from all 15 cases, our analysis focuses specifically on three cases in which the offenders presented evidence of either intellectual disability or cognitive impairment: R v Trezise; R v Martin; and Director of Public Prosecutions (Vic) v Chen. We selected these cases because the cognitive impairments experienced by the three accuseds do not (and would not at the time have) fit the defence of mental impairment outlined in the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (‘CMIA’). This means that these offenders would (likely) not have been able to access a mental impairment defence to claim a reduction in their moral culpability had defensive homicide not been operating. In other words, the accuseds may not have been able to plead or be found guilty of a charge less than murder, despite, as our analysis will demonstrate, the evident impact their cognitive impairments had on their levels of moral culpability.
The in-depth analysis of these three cases, coupled with a discussion of the 12 other cases involving an accused with a history of mental illness or cognitive impairment, allows us to test the vocal claims of the dominant abolitionist reformers, who argued that defensive homicide provided an avenue for morally culpable, violent men to ‘get away with murder’, and that the offence itself was not operating as intended. We have also selected the cases that involved these specific forms of mental impairment because these conditions have not been considered in the major studies examining defensive homicide in the context of male-on-male lethal violence to date. Our discussion thus provides new and critical insights into the operation of defensive homicide in the context of mental illness and impairment.
Drawing from the selected case studies, this article sheds light on the complexities surrounding mental impairment and seeks to generate discussion around the absence of mental impairment as a key focal point in the abolition debate. By arguing that these cases did in fact cohere with the intended scope of s 9AD of the Crimes Act 1958 (Vic) — which sought to take into account that people kill in a range of different circumstances and that their culpability may be affected by a range of factors — we challenge the dominant, populist voices that strongly informed the abolition of defensive homicide.
There are multiple complexities and nuances in cases involving a fatality. Our article provides a mere snapshot of some of these by drawing from the personal histories of men convicted of defensive homicide. We argue that these backgrounds are far more complex than the images and focal points used by the media and populist voices to advocate abolition. Additionally, we seek to demonstrate how defensive homicide did not absolve the legal responsibility of those found guilty (either by plea or trial), nor did it result in accused persons not being punished and facing periods of imprisonment for their actions. Instead, we argue that defensive homicide offered an opportunity for consideration to (rightly) be given to the accused’s level of mental illness and impairment, and its impact on their moral culpability, in a way that would not have been possible without the operation of this offence.
While we believe it is entirely reasonable that homicide is met with legal punishment and social denunciation, we argue that the abolition of defensive homicide was largely premature and insufficient attention was given to the fact that its abolition, combined with the restrictive operation of the CMIA, would result in situations where individuals with mental conditions insufficient to form the basis of the mental impairment defence would have no defence or appropriate alternative homicide offence available to them in Victorian law.
In light of recent research indicating that 38 per cent of Australian prison entrants have been told they have a mental health disorder and 42 per cent of Victoria’s prison population have been identified with a psychiatric risk indicating mental health concerns, we contend that there is a demonstrable need for Victoria to have an appropriate range of legal responses to deal with the nuances and complexities of lethal violence, particularly where the offender suffers from a mental illness or impairment.
Our article commences with a discussion of the link between mental illness and lethal violence and an overview of the current laws pertaining to mental impairment in Victoria. After considering the findings of recent reviews into mental impairment defences in Australia, we present a background to the abolition of defensive homicide, with a particular focus on the dominant, populist–abolitionist reformers’ voices that were prioritised in the debate and fuelled the offence’s rapid demise. We then present an in-depth analysis of our three selected case studies to highlight how the offence was working effectively in practice, capturing the very unique and complex circumstances inherent to homicide. The article concludes by showcasing some of the effects of the decision to abolish defensive homicide for accused persons suffering from a mental illness and impairment and summarising why we advocate for a greater range of legal responses to cover the nuance and complexities of lethal violence, including consideration of several of the recommendations arising from the Victorian Law Reform Commission’s (‘VLRC’) review of Victoria’s mental impairment laws.