Contents

Chapter 8
Partial defences and separate homicide offences

The options

8.12The key reform options appear to be:

(a) traditional-style partial defences (like provocation or loss of control, excessive self-defence and diminished responsibility);
(b) tailored partial defences, like Queensland’s killing for preservation in an abusive relationship;441 and
(c) a separate homicide offence, like Victoria’s now-repealed defensive homicide442 or New Zealand’s infanticide,443 which is an example of a “dual role” provision that can be both charged as an offence or pleaded as a defence to murder or manslaughter.

8.13There may be little practical distinction to be drawn between partial defences and separate homicide offences, since both will yield a conviction for homicide that is less culpable than murder. However, partial defences reduce murder to manslaughter in all cases and are, thus, something of a blunt instrument.

8.14A separate homicide offence may more accurately reflect a defendant’s culpability and, therefore, be preferable from a “labelling” perspective.444 They allow a charge to be laid for the separate offence when the prosecution considers that such a charge more accurately reflects the offender’s culpability.
441Criminal Code Act 1899 (Qld), s 304B.
442Crimes Act 1958 (Vic), s 9AD (repealed).
443Crimes Act 1961, s 178.
444This was the rationale for Victoria’s introduction of “defensive homicide” rather than “excessive self-defence”; a specific offence would mean the basis for reduced culpability would be clear when the jury returned a verdict for the lesser offence. See Toole, above n 26, at 479.