Contents

Chapter 6
Developments in other countries

Reform of self-defence in Australia

6.11Notwithstanding the broader approach in Zecevic, the operation of self-defence in the context of family violence has been reviewed in several Australian states, and legislative change has been introduced (or recommended) to better accommodate the experiences of victims of family violence.

6.12The most notable changes to self-defence have occurred in Victoria. The approach in Victoria was subsequently partially adopted in Western Australia,314 and very recently the Tasmania Law Reform Institute recommended reform based on the Victorian model.315 These changes address the risk that self-defence would continue to be interpreted and applied in a way that was perceived to be unfair to victims of family violence, given the continued association of self-defence with a one-off confrontation rather than an ongoing threat of harm. The reforms also recognised ongoing concerns that the nature and dynamics of family violence may not be generally understood.316

The Victorian model

6.13In 2004, following a three-year review of the law of homicide, the Victorian Law Reform Commission (VLRC) made a number of recommendations aimed at making self-defence more accessible to people who kill in response to family violence. Recommendations addressed both the substantive law of self-defence – in particular, the concepts of imminence and proportionality – as well as the operational aspects of the defence, to ensure that decisions by judges, juries, lawyers and police are informed by a proper understanding of the nature of family violence.317

6.14The VLRC’s recommendations resulted in significant changes to the law in 2005. Further changes were introduced in 2014, following a review by the Victorian Department of Justice as part of a broader investigation into the offence of defensive homicide, also recommended by VLRC in 2004 and discussed at paragraphs 6.64–6.67 below.

Addressing imminence and proportionality

6.15The VLRC recommended that the statutory provision on self-defence should specify that the use of force may be reasonable even though:

(a) the person believes the harm is not immediate;318 and
(b) the force used by that person exceeds the force used against him or her.319
6.16By giving these matters special mention in the substantive provision on self-defence, the VLRC hoped it would encourage a more careful analysis by jurors of circumstances in which a person may reasonably believe his or her life is in danger, even where that person is not under immediate attack or at risk of immediate harm.320 It was also intended to discourage juries from placing undue emphasis on the issue of the proportionality of the response to the force used, or threatened, against the defendant in determining whether their actions were reasonable.321

6.17The VLRC’s recommendations were enacted in 2005, in section 9AH of the Crimes Act 1958 (Vic), now section 322M of that Act. This is reproduced in Appendix D of this Issues Paper. Despite the VLRC’s recommendation to the contrary, these provisions are engaged only where family violence is in issue.

6.18In 2013, the Victorian Department of Justice recommended further reforms to self-defence, including changing the objective test from whether the defendant’s belief was reasonable to whether their conduct was reasonable in the circumstances as perceived by the defendant.322 This is consistent with the objective test in section 48 of the New Zealand Crimes Act and with self-defence in New South Wales, Northern Territory, and Tasmania. The Department of Justice considered this may assist a defendant where they kill in response to family violence.323
6.19In September 2013, the Department of Justice noted that the changes to self-defence, although untested, appeared to have made a difference.324 Since then, it appears that self-defence has been successfully relied on in at least one case where a victim of family violence (in that case, the male de facto partner of the deceased) killed his abuser in circumstances where there was no imminent threat and with what could be described as “excessive force”.325

Adducing evidence of family violence

6.20According to the VLRC:326

Changes to the substantive law will only ever provide a partial solution to ensuring defences to homicide operate fairly for those who kill in response to family violence. It is equally important to ensure juries are provided with information which allows them to understand, and take into account, the broader context of violence. Decisions made by judges, juries, lawyers, and police must also be informed by a proper understanding of the complex nature of family violence.

6.21While the VLRC recognised that evidence of prior abuse was generally accepted by the courts as relevant and admissible, it concluded that the importance of this evidence in supporting a plea of self-defence “persuaded us that its status should be clarified in legislation.”327
6.22The VLRC recommended the introduction of a specific evidence provision relating to the admissibility of family violence evidence where self-defence is claimed. These provisions specify the range of evidence that can be adduced about the history of the relationship and the nature of violence in the relationship to prove both the subjective and objective elements of the self-defence test. They also allow for the introduction of social framework evidence, which permits evidence of the nature and dynamics of family violence to be introduced to dispel myths about family violence that exist within the community.328 Provisions were introduced into the Crimes Act 1958 (Vic) in 2005, and those provisions are now contained in sections 322J and 322M of that Act. These are reproduced in Appendix D.

Jury directions on relevance of family violence when self-defence is raised

6.23The VLRC also recognised that the trial judge has a crucial role to play in addressing misconceptions about family violence by assisting juries to recognise the significance of prior violence and to make the necessary connections between expert evidence about family violence and the issues at trial.329 It identified the need for clear jury directions on self-defence to guard against the risk of “compromise verdicts”. That is where an acquittal is available, but the jury has difficulty in understanding and applying the elements of self-defence and therefore convict of manslaughter.330
6.24However, the VLRC did not recommend a standard jury direction requirement:331

The Commission does not favour legislating to require a set jury direction to be delivered when a history of violence is raised. The Commission accepts that a ‘one size fits all’ approach to jury directions will not allow sufficiently flexibility. Moreover, we think that a standard charge suffers from the fundamental difficulty of the trial judge intruding into territory which belongs exclusively to the jury. But it is in many cases vital, if the trial is to be fair, that relevant matters be brought to the jury’s attention. In our view, this should be the role of social framework evidence, and of the experts who are appropriately qualified to give it. The trial judge will play an important role in highlighting the relevance of a history of abuse, and of the social framework evidence, to the particular facts in issue in the case.

6.25However, in 2014, a standard jury direction on family violence was introduced as part of a package of amendments to improve the availability of self-defence to victims of family violence and abolish the defensive homicide offence, discussed at paragraphs 6.64–6.67 below.332 The jury direction is aimed at countering community misunderstandings about how the dynamics of family violence may impact on the behaviour of family violence victims, such as why victims of family violence remain in abusive relationships.333 During the second reading of the Crimes Amendment (Abolition of Defensive Homicide) Bill, the Attorney-General explained:334

During the past year, there has been increasing community concern about the prevalence of family violence in Victoria. This is an extremely serious issue and the government is committed to preventing violence, holding offenders to account and providing support to victims.

One area of concern relates to women who have suffered long-term family violence by a partner, and who kill their partner when defending themselves from this abuse.

Research indicates that many members of the community do not fully understand the dynamics of family violence. Research also indicates that jury directions can play an important role in addressing juror misconceptions. The bill will introduce new provisions into the Jury Directions Act 2013 to address common misconceptions about family violence. When a direction on family violence is requested by defence counsel, the judge will explain to the jury (among other things) that family violence is not limited to physical abuse and may include sexual and psychological abuse, and that it is not uncommon for victims of family violence to stay with their abusive partner, rather than leave or seek help. The directions will also explain to jurors that family violence may be relevant to their assessment of whether the woman was acting in self-defence.

These directions may be given early in the trial before any evidence is heard. This will ensure that any misconceptions about family violence are dispelled early on. These jury directions will provide greater context for assessing claims of self-defence and assist to ensure that jurors in relevant cases have a better understanding of the dynamics of family violence. They will also assist to educate the community and legal profession about family violence. These reforms are an important measure for providing support to victims of family violence.

6.26The current jury direction provisions are set out in Appendix D.

Reform in other Australian states and territoriesTop

Western Australia

6.27In 2007, the Law Reform Commission of Western Australia completed its review of the law of homicide and took a similar view to the VLRC in relation to the availability of self-defence to victims of family violence. It recommended:335
That a new section be inserted into the Evidence Act 1906 (WA) to provide that when the defence of self-defence is raised under s 248 of the Criminal Code (WA) the judge shall inform the jury that:
(a) an act may be carried out in self-defence even though there was no immediate threat of harm, provided that the threat of harm was inevitable; and
(b) that a response may be a reasonable response for the purpose of self-defence… even though it is not a proportionate response.
6.28However, these recommendations were only partly adopted and, like in Victoria, were adopted by way of an amendment in the Criminal Code rather than as a new section in the Evidence Act. The self-defence provision now reads that a person is acting in self-defence if the person “believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent”.336 However, unlike the Victorian model, this is of general application rather than specific to victims of family violence. The recommendation regarding “proportionate response” does not appear to have been adopted.
6.29The Law Reform Commission of Western Australia also made recommendations that sought to provide guidance on the application of self-defence in the context of family violence. It recommended that the Evidence Act 1906 (WA) be amended to provide that the defendant can put forward opinion evidence about domestic violence. This aimed to assist in determining the reasonableness of the accused’s belief that it was necessary to use force to defend themselves or another and whether the act was a reasonable response to the circumstances as the accused perceived them to be.337 However, it does not appear that these recommendations were adopted.

Tasmania

6.30The Tasmania Law Reform Institute has recently reviewed the law of self-defence. Tasmania’s self-defence provision is almost identical to section 48, and like New Zealand, Tasmania has no partial defences to murder. The Law Reform Institute has recommended changes to allow self-defence to better accommodate victims of family violence through legislative change to:338
(a) specify that self-defence may apply even if the person is responding to a harm that is not immediate or that appears to be trivial (based on the Victorian model);
(b) facilitate the reception of evidence of family violence by the court where a victim of family violence kills their abuser (based on sections 322J and 322M of the Crimes Act 1958 (Vic) discussed above at paragraphs 6.20–6.22); and
(c) provide for jury directions where self-defence is raised in the context of family violence (similar to the provisions of the Jury Directions Act 2015 (Vic), discussed above at paragraphs 6.23–6.26).

6.31The Tasmania Law Reform Institute did not recommend the introduction of a partial defence.

New South Wales

6.32In New South Wales, the adequacy of self-defence to take account of the circumstances of victims of family violence who kill their abuser was considered by a Parliamentary Select Committee established in 2012 to inquire into the partial defence of provocation.339 The Select Committee noted the significant concerns regarding the adequacy of self-defence for victims of family violence who kill their abuser, and the need to “strengthen” the defence. However, as it was not provided with “strong arguments on what methods could effectively be used to do so”, it was unable to make a firm recommendation on the issue.340 Accordingly, the concern regarding the adequacy of self-defence for victims of family violence was a reason for recommending retention of provocation.341 However, recognising that the law serves an important educative function to the broader community, the Select Committee did recommend:342

That the NSW Government introduce an amendment similar to section 9AH of the Victorian Crimes Act 1958, to explicitly provide that evidence of family violence may be adduced in homicide matters.

6.33It does not appear that recommendation has been enacted. However, the Government of New South Wales has committed to a review of the law of homicide by the New South Wales Law Reform Commission in the next five years.343

Other states and territories

6.34The only Australian jurisdiction to retain an imminence requirement for self-defence is Queensland. Indeed, the Queensland self-defence provision is much narrower than the Australian common law test and requires acts of self-defence to be undertaken in response to an unlawful assault.344

6.35However, Queensland also has a provision that addresses the admissibility of evidence of family violence. Section 132B of the Evidence Act 1977 (Qld) makes admissible “relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed”. This section applies to all criminal proceedings for homicide, assault and other offences endangering life or health.

6.36The only Australian jurisdiction retaining a direct reference to proportionality in the self-defence provision is South Australia, but that is qualified by a clear statement that the requirement for proportionality “does not imply that the force used by the defendant cannot exceed the force used against him or her”.345
6.37In 2010, the Australian Law Reform Commission and New South Wales Law Reform Commission published a joint report: Family Violence – A National Legal Response. That report considered whether the current defences to homicide available to victims of family violence were adequate across the different Australian jurisdictions.346 Without making specific recommendations as to what defences should be available, they concluded:347

In the Commissions’ view, the circumstances of family violence ought to be recognised in both complete and partial defences, given the different purposes served by each form of defence. In recognising circumstances of family violence for the purposes of an acquittal, complete defences are intended to remove all criminal liability associated with fatal responses to family violence. However, partial defences recognise the circumstances of family violence only for the purposes of avoiding a murder conviction. An exclusive focus on partial defences falls short of accommodating the circumstances of family violence because it ‘leaves untouched’ limitations in complete defences.

6.38The Australian and New South Wales Law Reform Commissions did, however, recommend that states and territories adopt evidential provisions along the lines of the Victorian provisions:348

The Commissions maintain their view expressed in the Consultation Paper that state and territory criminal legislation should provide express guidance about the potential relevance of family-violence related evidence in the context of homicide defences, in similar terms to s 9AH of the Crimes Act 1958 (Vic)….

The Commissions consider that there is considerable merit in focusing attention on the potential relevance of such evidence in homicide defences, given its importance in these circumstances. The Commissions endorse the views of the VLRC that such a provision would assist in avoiding ‘unnecessary arguments concerning… relevance and ensure the range of factors which may be necessary to represent the reality of the accused’s situation are readily identified’

314Criminal Code Act Compilation Act 1913 (WA) s 248(4).
315Tasmania Law Reform Institute, above n 251, at [5.4.13].
316Victorian Law Reform Commission, above n 16, at 68; Law Reform Commission of Western Australia, above n 16, at 168; Tasmania Law Reform Institute, above n 251, at 59–69.
317Victorian Law Reform Commission, above n 16, at xxxii.
318At 80.
319At 84.
320At 80.
321At 83.
322Victoria Department of Justice Defensive Homicide: Proposals for Legislative Reform - Consultation Paper (September 2013).
323At 41.
324At vii–viii.
325DPP v Bracken, above n 221.
326Victorian Law Reform Commission, above n 16, at xxxii.
327At 140.
328At [4.96].
329At [44]; Tasmania Law Reform Institute Review of the Law Relating to Self-defence: Issues Paper (IP20, Tasmania Law Reform Institute, 2014) at 27.
330Victorian Law Reform Commission, above n 16, at 102–103.
331At 192.
332Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic).
333Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 (Vic) (explanatory memorandum), at 21–23.
334Victorian Parliamentary Debates, Legislative Assembly, 20 August 2014, above n 284, at 2834.
335Law Reform Commission of Western Australia, above n 16, at 168–169.
336Criminal Code 1913 (WA), s 248(4)(a).
337Law Reform Commission of Western Australia, above n 16, at 293.
338Tasmania Law Reform Institute, above n 251.
339Select Committee on the Partial Defence of Provocation The partial defence of provocation (Legislative Council, 2013) at [17]. The Select Committee’s reference required consideration of the adequacy of self-defence for victims of prolonged domestic and sexual violence. However, the Committee considered that was limited to the adequacy of self-defence “in the event that the partial defence of provocation were to be abolished”
340At 82.
341At 87.
342Select Committee on the Partial Defence of Provocation, above n 339.
343Government of New South Wales Government response to the report of the Legislative Council Select Committee on the Partial Defence of Provocation (2013).
344Criminal Code (Qld) s 271.
345Criminal Law Consolidation Act 1935 (SA), s 15B.
346Australian Law Reform Commission and NSW Law Reform Commission, above n 10, at ch 14.
347At 644.
348At 652.