Contents

Chapter 6
Developments in other countries

Introduction

6.1In the past decade, there has been significant attention in comparable jurisdictions on the matter of how the criminal justice system responds to victims of family violence who commit homicide. All jurisdictions that have examined this issue have recognised, to varying degrees, the difficulties faced by victims of family violence in successfully relying on self-defence (and, to a lesser extent, provocation). While no single “best practice” approach to reform has emerged, two distinct approaches appear to have taken shape.

6.2The first approach, pioneered in Victoria, which was followed to some extent in Western Australia and recently recommended in Tasmania, is to focus on reform of the defence of self-defence. This approach aims to more accurately and thoroughly recognise and accommodate the circumstances of those who commit homicide in response to prolonged family violence.

6.3The second approach focuses on partial defences, either by amending existing partial defences (most notably provocation) to make them more accessible to victims of family violence or to create a new partial defence that recognises the reduced culpability of victims of family violence who kill their abusers but who cannot rely on self-defence. This approach has been favoured in England and Wales, New South Wales, Australian Capital Territory (ACT) and Queensland and is generally adopted where partial defences already have a presence in that jurisdiction’s legal system and/or where murder still attracts a mandatory life sentence.302
6.4While these approaches address different aspects of homicide law, both are concerned with better recognising the experiences of victims of family violence who commit homicide. The Family Violence Death Review Committee (FVDRC) considers New Zealand is now out of step with similar international jurisdictions.303

6.5We discuss below these different approaches taken in other countries. It is important to recognise that the reforms in each jurisdiction were intended, and must be considered, as a package of reforms and in the context of their existing criminal justice system.

6.6Set out in Appendix C is a table summarising homicide law in the different jurisdictions and the approach taken to recognise victims of family violence who commit homicide.

302These approaches are not necessarily mutually exclusive. For example, in Western Australia, amendments to self-defence were accompanied with recommendations to re-establish the partial defence of excessive self-defence. Similarly, Victoria introduced a specific offence of defensive homicide in 2005 (which operated as a partial defence of excessive self-defence). However, it was subsequently repealed in 2014, and further reform was introduced, also aimed at improving the application of self-defence to victims of family violence.
303Family Violence Death Review Committee, above n 2, at 102.