Contents

Appendix C
Homicide defences in other countries

HOMICIDE DEFENCES: APPROACHES IN OTHER JURISDICTIONS
Jurisdiction Elements of self-defence (for homicide)
(D=defendant)
Other relevant defences Murder sentencing Reforms specific to victims of
​family violence?

Victoria

Crimes Act 1958 (Vic)

(a) D believes that the conduct is necessary to defend D or another person from the infliction of death or really serious injury; and
(b) the conduct is a reasonable response in the circumstances as D perceives them (section 322K).

Where family violence is in issue, D may believe that their conduct is necessary, and the conduct may be reasonable, even if D is responding to a harm that is not immediate, or the response involves the use of force in excess of the force involved in the harm or threatened harm (section 322M).

Duress – complete defence, applies only if threat is to inflict death or really serious injury (section 322O).

Where family violence is in issue, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress (section 322P).

Sudden or extraordinary emergency – complete defence (section 322R).

Life imprisonment or for such other term as the court determines (section 3(1)).

Sentencing guidelines contained in Sentencing Act 1991 (Vic) sections 5 and 5A.

Significant reforms were introduced in 2005 following a review of homicide law by the Victorian Law Reform Commission. Reforms included amending self-defence, abolishing provocation and introducing defensive homicide (substantially similar to partial defence of excessive self-defence).

Further reforms introduced in 2014, including repeal of defensive homicide and additional changes to self-defence (including introduction of a jury direction on relevance of family violence where self-defence is in issue).

Western Australia

Criminal Code Act Compilation Act 1913 (WA)

(a) D believes the act is necessary to defend D or another from a harmful act, including a harmful act that is not imminent; and
(b) D’s harmful act is a reasonable response in the circumstances as D believes them to be; and
(c) there are reasonable grounds for those beliefs (section 248(4)).

Excessive self-defence – partial defence engaged where the second limb of self-defence is not met (section 248(3)).

Duress – complete defence (section 32).

Emergency – complete defence (section 25).

Unwilled conduct – complete defence (section 23A).

Accident – complete defence (section 23B).

Presumptive life sentence unless:

(a) that sentence would be clearly unjust given the circumstances of the offence and D; and
(b) D is unlikely to be a threat to the safety of the community when released from imprisonment;

in which case D is liable to 20 years’ imprisonment (section 279(4)).

Reforms introduced in 2008 following review of the law of homicide by the Law Reform Commission of Western Australia. Reforms included changes to self-defence, abolition of provocation and introduction of excessive self-defence.

New South Wales

Crimes Act 1900 No 40 (NSW)

(a) D believes conduct is necessary:
(i) to defend D or another; or
(ii) to prevent or terminate the unlawful deprivation of D’s liberty or the liberty of another person; and
(b) the conduct is a reasonable response in the circumstances as D perceives them (section 418).

Extreme provocation – partial defence (section 23).

Excessive self-defence – partial defence, engaged when second limb of self-defence not met (section 421).

Substantial impairment by abnormality of mind – partial defence (section 23A).

Liable to life imprisonment or such term as the court determines (section 19A).

See also: Crimes (Sentencing Procedure) Act 1999

Provocation amended in 2014 following an inquiry by the Select Committee on the Partial Defence of Provocation. Provocation amended to make it more accessible to victims of family violence (by providing that the provocative conduct need not have occurred immediately before the killing), and to provide that certain kinds of conduct may not constitute provocation.

Select Committee recommended new evidential provisions for self-defence where family violence is in issue, based on the Victorian amendments, but this has not yet resulted in legislative reform.

Government has agreed to a review of the law of homicide by the Law Reform Commission in five years’ time, as recommended by the Select Committee.

Queensland

Criminal Code 1899 (Qld)

Self-defence against unprovoked assaults (s 271(2)):

(a) the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and
(b) D believes, on reasonable grounds, that D cannot otherwise preserve the person defended from death or grievous bodily harm,
(c) it is lawful for D to use any such force to the assailant as is necessary for defence.

Self-defence against provoked assaults (s 272):

(a) When D has unlawfully assaulted another or has provoked an assault from another, and
(b) that other assaults D with such violence as to cause reasonable apprehension of death or grievous bodily harm, and
(c) that assault induced D to believe, on reasonable grounds, that it is necessary for D’s preservation from death or grievous bodily harm to use force in self-defence,
(c) D is not criminally responsible for using any such force as is reasonably necessary for such preservation.

Does not apply where D first began the assault with the intent to kill or do grievous bodily harm.

Killing for preservation in an abusive domestic relationship – partial defence (section 304B), applies if:

(a) deceased committed acts of serious domestic violence against D in the course of an abusive domestic violence;
(b) D believes it necessary for their preservation from death or grievous bodily harm to do the act or make the omission that causes death; and
(c) D has reasonable grounds for the belief having regard to the abusive relationship and all circumstances of the case.

Provocation – partial defence (section 304).

Diminished responsibility – partial defence (section 304A).

Mandatory life sentence (section 305).

Provocation restricted in 2010 following review by Queensland Law Reform Commission in 2008.

Defence of killing for preservation in an abusive domestic relationship was introduced in 2012, in response to a recommendation of the Law Reform Commission to consider a specific partial defence to address the problems faced by victims of family violence in relying on the partial defence of provocation.

ACT

Crimes Act 1900 (ACT)

Criminal Code 2002 (ACT)

(a) D believes the conduct is necessary
(i) to defend D or another; or
(ii) to prevent or end the unlawful imprisonment of himself or herself or another; and
(b) the conduct is a reasonable response in the circumstances as D perceives them (Criminal Code, s 42).

Provocation – partial defence (Crimes Act, section 13).

Diminished responsibility – partial defence (Crimes Act, section 14).

Duress – complete defence (Criminal Code, section 40).

Sudden or extraordinary emergency – complete defence (Criminal Code, section 41).

Mistake of fact – complete defence (Criminal Code, sections 35–36).

Mandatory life sentence (Crimes Act, section 12(2)).

Provocation restricted in 2004 to exclude non-violent sexual advances.

South Australia

Criminal Law Consolidation Act 1935 (SA)

(a) D genuinely believes the conduct is necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as D genuinely believed them to be, reasonably proportionate to the threat that D genuinely believed to exist (s 15(1)).

Provocation – partial defence (common law).

Excessive self-defence – partial defence, engaged where the second limb of self-defence is not met (section 15(2)).

Mandatory life sentence (section 11)

The Attorney-General of South Australia has ordered an inquiry into the partial defence of provocation, and the Green Party has introduced the Criminal Law Consolidation (Provocation) Amendment Bill 2015, which would bar conduct of a sexual nature constituting provocation merely because the person was the same sex as D.

Northern Territory

Criminal Code Act (NT)

(a) D believes the conduct is necessary-
(i) to defend D or another; or
(ii) to prevent or terminate the unlawful imprisonment of himself or herself or another; and
(b) the conduct is a reasonable response in the circumstances as D perceives them (section 43BD).

Provocation – partial defence (section 158).

Diminished responsibility – partial defence (section 159).

Duress – complete defence (section 43BB).

Sudden and extraordinary emergency – complete defence (sections 33 and 43BC).

Unwilled act and accident – complete defence (section 31).

Mistake of fact – complete defence (sections 43W–43AX).

Mandatory life sentence (section 157).

Provocation amended to make it more accessible to victims of family violence following review by Law Reform Committee of the Northern Territory in 2000.

Provocation restricted 2006.

Tasmania

Criminal Code Act 1924 (Tas)

D is justified in using, in the defence of D or another, such force as, in the circumstances as D believes them to be, it is reasonable to use (section 46).

No other statutory defences to murder.

Life imprisonment or such other term as the Court determines (section 158).

Provocation abolished in 2003.

The Tasmanian Law Reform Institute recently reviewed operation of self-defence and recommended legislative change consistent with Victorian reforms – including clarifying that self-defence available where threatened harm is not immediate or appears to be trivial. Also recommends evidential provisions and jury directions similar to those adopted in Victoria. Recommended against introducing a new partial defence.

England and Wales (including Northern Ireland)

Criminal Justice Act 2003 (UK)

Coroners and Justice Act 2009 (UK)

Criminal Justice and Immigration Act 2008 (UK)

Murder (Abolition of Death Penalty) Act 1965 (UK)

(a) act performed in defence of D or another from what D perceives as an actual or imminent unlawful assault; and
(b) force used is reasonable in circumstances as D believes them to be (Common law516 , s 76 Criminal Justice and Immigration Act)

 

Loss of control – partial defence, engaged in the presence of a “qualifying trigger”, such as fear of serious violence from deceased; things said or done of extremely grave character that caused D to have justifiable sense of being wronged (sections 54–55 Coroners and Justice Act).

Diminished responsibility – partial defence (sections 52–53 Coroners and Justice Act).

Mandatory life sentence (section 1, Murder (Abolition of Death Penalty) Act 1965).

Law Commission for England and Wales reviewed partial defences to murder in 2004 and the laws of murder, manslaughter and infanticide in 2006. Loss of control replaced provocation in 2010 to cater for victims of family violence and to exclude sexual infidelity and other inappropriate “triggers”.

Ireland

Criminal Justice Act 1964

Criminal Law (Defence and the Dwelling) Act 2011

Criminal Law (Insanity) Act 2006

(a) D acted in defence of D or another from what D perceives as an actual or imminent unlawful assault; and
(b) force is reasonable and necessary in the circumstances as D believes them to be (common law).

Provocation – partial defence (common law).

Diminished responsibility – partial defence (Criminal Law (Insanity) Act, section 6).

Defence in a dwelling – complete defence, applies where a defendant uses reasonable force in their dwelling against a person who trespasses for the purpose of committing a crime (Criminal Law (Defence and the Dwelling) Act, section 2).

Mandatory life sentence (section 2, Criminal Justice Act)

Law Commission of Ireland reviewed all criminal law defences in 2009 and recommended codification. Recommendations not implemented.

Canada

Criminal Code RSC 1985 c C-46

(a) D believes on reasonable grounds that force is being used against D or another or that a threat of force is being made against D or another;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting D or another from that use or threat of force; and
(c) the act committed is reasonable in the circumstances (section 34).

Section 34 also lists a number of factors for determining reasonableness, including nature of force or threat; imminence; size, age gender and physical capabilities of the parties; nature, history and duration of the relationship between the parties; nature and proportionality of the response.

Provocation – partial defence (section 232(1)).

Mandatory life sentence (first or second degree murder) (section 235).

 

516Discussed in Law Commission of England Wales Partial Defences to Murder (Law Com No 290, 2004) at [4.6].