Relevant legislative provisions in Victoria
322J Evidence of family violence
(1) Evidence of family violence, in relation to a person, includes evidence of any of the following—
(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.
(2) In this section—
“child “means a person who is under the age of 18 years;
“family member”, in relation to a person, includes—
(a) a person who is or has been married to the person; or
(b) a person who has or has had an intimate personal relationship with the person; or
(c) a person who is or has been the father, mother, step-father or step-mother of the person; or
(d) a child who normally or regularly resides with the person; or
(e) a guardian of the person; or
(f) another person who is or has been ordinarily a member of the household of the person;
“family violence”, in relation to a person, means violence against that person by a family member;
(a) physical abuse; or
(b) sexual abuse; or
(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to the following—
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse or psychological abuse;
(v) in relation to a child—
(A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or
(B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.
(3) Without limiting the definition of violence in subsection (2)—
(a) a single act may amount to abuse for the purposes of that definition; and
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
322M Family violence and self-defence
(1) Without limiting section 322K, for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person’s conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if—
(a) the person is responding to a harm that is not immediate; or
(b) the response involves the use of force in excess of the force involved in the harm or threatened harm.
(2) Without limiting the evidence that may be adduced, in circumstances where self-defence in the context of family violence is in issue, evidence of family violence may be relevant in determining whether—
(a) a person has carried out conduct while believing it to be necessary in self-defence; or
(b) the conduct is a reasonable response in the circumstances as a person perceives them.
58 Request for direction on family violence
(1)Defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 59 and all or specified parts of section 60.
(2)The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 60 if so requested, unless there are good reasons for not doing so.
(3)If the accused is unrepresented and does not request a direction on family violence, the trial judge may give the direction in accordance with this Part if the trial judge considers that it is in the interests of justice to do so.
(4)The trial judge—
(a)must give the direction as soon as practicable after the request is made; and
(b)may give the direction before any evidence is adduced in the trial.
(5)The trial judge may repeat a direction under this Part at any time in the trial.
(6)This Part does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness.
59 Content of direction on family violence
In giving a direction under section 58, the trial judge must inform the jury that—
(a)self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and
(b)as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and
(c)in the case of self-defence, evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending; and
(d)in the case of duress, evidence in the trial is likely to include evidence of family violence committed by another person against the accused or a third person.
60 Additional matters for direction on family violence
In giving a direction requested under section 58, the trial judge may include any of the following matters in the direction—
(a)that family violence—
(i)is not limited to physical abuse and may include sexual abuse and psychological abuse;
(ii)may involve intimidation, harassment and threats of abuse;
(iii)may consist of a single act;
(iv)may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;
(b)if relevant, that experience shows that—
(i)people may react differently to family violence and there is no typical, proper or normal response to family violence;
(ii)it is not uncommon for a person who has been subjected to family violence—
(A)to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;
(B)not to report family violence to police or seek assistance to stop family violence;
(iii)decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—
(A)family violence itself;
(B)cultural, social, economic and personal factors;
(c)that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence or under duress (as the case requires) in relation to the offence charged.