Chapter 1
Setting the scene

Scope of this review

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:

(a) the test for self-defence, in section 48 of the Crimes Act 1961, should be modified so that it is more readily accessible to victims of family violence charged with murder (or manslaughter);
(b) a partial defence that would reduce murder to manslaughter is justified and, if so, in what particular circumstances; and
(c) current sentencing principles properly reflect the circumstances of victims of family violence who are convicted of murder.

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.

Our review is limited to defendants who are victims of family violence

1.16Unlike law reform bodies in other jurisdictions, we have not been asked to conduct a general review of the law of homicide or of the defences to homicide. Nor have we been asked to consider the application, or desirability, of a particular defence generally.9 We have been asked only to consider the law of homicide as it relates to one particular group of defendants, namely, victims of family violence who kill their abusers.

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.

1.18We recognise that many commentators and law reform bodies in other countries have argued against reforms specific to victims of family violence, saying that they may result in the differential treatment of persons who have killed in response to family violence, compared with those who have killed in response to non-familial violence.10 In their joint report, the Law Reform Commissions of Australia and New South Wales cautioned against recognising the circumstances of family violence victims in an “atypical context” or typecasting the reactions of family violence victims who kill as a product of “extraordinary psychology” and concluded it was preferable for family violence-related circumstances to be integrated into existing defences of general application. This would promote substantive equality in the treatment of persons who kill in response to family violence and those who kill in response to other forms of violence.11

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).

1.20However, given the complexity of this area of law, there is significant risk in making recommendations that will have wider application in circumstances where we have not completed a comprehensive review of the law of homicide. Change in one area may have implications for other areas, and the potential for unintended consequences is high. This has been the experience in other jurisdictions.12 In particular, there is a fear that any perceived widening of the defences to homicide may be successfully utilised by “undeserving” defendants.

Our review is limited to the law of homicide and defences to homicideTop

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.

Our approach to this referenceTop

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?

9Unlike in 2007, when the Commission reviewed the partial defence of provocation generally.
10Australian Law Reform Commission and NSW Law Reform Commission Family Violence — A National Legal Response (ALRC R114, NSWLRC R128, October 2010) at 649.
11At 648–650.
12For example, in Victoria, as discussed at paragraphs 6.64–6.67, the offence of defensive homicide was intended as a “safety net” for victims of family violence who failed to meet the self-defence criteria. Instead, it was used almost wholly by violent men to avoid a murder charge. It has now been abolished.