1.12This review considers the law in respect of victims of family violence who commit homicide. The terms of reference for this project are set out at Appendix A.
1.13As part of this review, we are required to consider whether:
1.14We have taken a relatively broad approach to this project and look at a wide range of options, including but not limited to the matters identified above.
1.15However, our reference is limited in two key respects. First, we are limited to considering and reporting on the law that applies to defendants who are victims of family violence. It does not permit us to consider homicide law as it applies to other categories of defendant. Second, our reference concerns only defendants who commit homicide. It does not cover other offences a defendant might commit in response to family violence, such as attempted murder or assault. The implications of these limitations are discussed below.
1.17This necessarily limits the scope of our review, including the issues we can consider and the recommendations we can make. Because the law of homicide is complex, and its application to various kinds of defendant are interconnected, in the absence of a general review we may also be limited in our ability to identify and assess the implications of our recommendations on areas of the law outside our terms of reference.
1.19Furthermore, it can be difficult to justify distinguishing between victims of family violence and other defendants who fall outside that group but may also be deserving of acquittal or a recognition of reduced culpability (for example, defendants who may have been subjected to ongoing abuse outside of a family relationship, who respond to a threat but use excessive force or who are mentally impaired).
1.21Unlike the 2001 Report, which reviewed all criminal defences available to victims of family violence (including for crimes other than homicide), this reference is limited to the law in respect of homicide only. We do not have a remit to consider defences to other crimes that victims of family violence may commit, such as attempted murder or assault.
1.22We are mindful this has the potential to give rise to anomalies, particularly in our review of self-defence, which is available in respect of all offences. We also recognise that the problems faced by victims of family violence in seeking to rely on self-defence when charged with murder or manslaughter may also arise in the context of other criminal offences.
1.23While we acknowledge the challenges inherent in “piecemeal” review and reform of a broad area of the law such as homicide, our approach is to focus on the law as it applies to victims of family violence who commit homicide. If we recommend reform, we intend to limit that reform to victims of family violence only, unless we can be satisfied that there are strong reasons for recommending general reform and that the risk of unintended consequences is low.
1.24We would welcome feedback on our proposed approach and, in particular, on whether the challenges inherent in recommending reform for one group of defendants and one type of offence can be effectively managed.
Questions for consultation
Q1 Should the Commission’s review and any recommendations for reform be limited to victims of family violence who commit homicide?