Family violence as a defence

This section considers the extent to which the criminal law should recognise family violence as a concept relevant to a defence for homicide, in circumstances where a victim of family violence kills the family member who was violent towards him or her. This raises the related issue of whether current defences to homicide for victims in violent family relationships are adequate.

Many Australian jurisdictions have given substantial consideration to recognising family violence in the context of defences to homicide. A number of important statutory reforms have resulted from this, with a view to better accommodating the experiences of family violence victims who kill. These reforms include:

  • reforms to the defence of self-defence—including removal of the requirement for the threat to be imminent (Western Australia);
  • reforms to the defence of provocation—including the removal for the requirement for the defendant to have ‘acted on the sudden and before there was a time for his passion to cool’ (Northern Territory), and removal of the requirement for the provocative conduct of the deceased to have occurred immediately prior to the act or omission causing death (for example, NSW);
  • abolition of the defence of provocation in part because of its unsuitability for female victims of family violence (Victoria, Western Australia, Tasmania);
  • expanding self-defence to take family violence into account, including express provision for the leading of evidence about family violence (Victoria); and
  • creating a new defence of family violence (Queensland).

The Commissions are interested in stakeholder views on whether current defences to homicide for victims in violent family relationships are adequate in each Australian state and territory jurisdiction.

In the Commissions’ preliminary view it is essential for the criminal law to recognise family violence as relevant to a defence to homicide, and that provisions—along the lines of s 9AH of the Crimes Act 1958 (Vic)—should allow defendants to lead evidence of family violence in the context of a defence to homicide.

The Commissions support the development of a consistent or harmonious approach by the states and territories to the recognition of family violence as a defence to homicide but do not propose a prescriptive approach as to how each jurisdiction should ensure the recognition of family violence as a defence to homicide. State and territory criminal legislation should provide defences to homicide that accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence. This can be achieved by introducing a separate defence of family violence—the Queensland model—or by expanding self-defence to take family violence into account expressly, or by ensuring that any existing defences of provocation and self-defence are otherwise reformed in a way which accommodate the experiences of family violence victims who kill. The Commissions are interested in stakeholder views on how the criminal law can best recognise family violence as relevant to a defence to homicide, and whether there are any problems with current models.

The Commissions note, for example, that the recommendations of the NSWLRC in 1997 concerning provocation, which would have assisted victims of family violence from availing themselves of this defence, have not been implemented. This is of some concern given that NSW, unlike Victoria, does not give explicit recognition to family violence in the context of self-defence; nor does it have a separate defence of family violence. These matters are relevant factors to be considered in ensuring that defences to homicide in NSW accommodate the experiences of family violence victims who kill.

Question 7–10 Are current defences to homicide for victims in violent family relationships adequate in each Australian state and territory?

Proposal 7–4 State and territory criminal legislation should provide defences to homicide which accommodate the experiences of family violence victims who kill, recognising the dynamics and features of family violence.

Proposal 7–5 State and territory criminal legislation should expressly allow defendants to lead evidence about family violence in the context of a defence to homicide. Section 9AH of the Crimes Act 1958 (Vic) is an instructive model in this regard.

Question 7–11 How can the criminal law best recognise family violence as relevant to a defence to homicide? For example, should family violence be expressly accommodated within an expanded concept of self-defence or should jurisdictions introduce a separate defence of family violence? What problems or issues arise from current models which recognise family violence as relevant to a defence to homicide?