Victorian attorney-general Robert Clark today introduced a bill into parliament that repeals the offence of defensive homicide. The bill signifies a significant step forward in ensuring just responses to lethal violence in the state’s criminal court system.
While reforming homicide law has been a long process, the bill introduced today is a significant step forward for Victoria.
Defensive homicide was introduced in Victoria in late 2005 as part of a wider package of homicide law reforms, including the abolition of the heavily discredited partial defence of provocation. Its introduction was largely based on the need to offer a “halfway” homicide category for persons who kill in response to prolonged family violence.
However, since 2005, the dominant use of the offence by men, who have brutally killed in the context of a one-off violent confrontation – often involving alcohol and/or the use of a weapon – has represented a significant departure from the original intentions of the offence.
That the offence has been predominately used in cases of male-on-male violence is in itself unsurprising, given that the majority of homicides in Victoria are committed by men. However, this disjunct between the theoretical need for defensive homicide and the cases in which it is successfully raised has prompted two government reviews, scholarly debate and significant community disquiet.
While ultimately the unintended operation of the offence remains at the heart of the need for its abolition, the repeal of defensive homicide will have multiple benefits. Firstly, it will ensure a more accurate labelling of intentional lethal violence while still retaining a discretionary approach to sentencing for murder that rightly allows for recognition of differences in the culpabilities of individual offenders.
Abolition of defensive homicide will also address concerns surrounding complexities and confusion in Victorian homicide law. This is an essential outcome given that it is often the jury that is tasked with discerning these laws.
While the abolition of defensive homicide has been the focal part of the reforms, there are several other changes in the bill worthy of attention. The bill introduces new jury directions to ensure that family violence is better explained and understood within the courts; changes self-defence laws to reduce current complexities; and reforms the use of evidence in criminal trials, which seeks to directly address the victim-blaming narratives that have permeated for far too long.
In this respect, the reforms strike an important balance between ensuring that persons who commit an intentional act of lethal violence are convicted of murder while also introducing reforms to protect victims of family violence and to better support the jury in homicide trials.
The reforms are undoubtedly timely. Over the last year, the Victorian community has strongly felt the dire impact of family violence and have rightly demanded an improvement in justice system responses to victims. This bill responds to that call.
In particular, the aim of the new family violence jury directions, alongside revisions and simplification of self-defence law, is to open up this complete defence to those that have previously struggled to access it. Their struggles may have been due to limitations in community and legal understandings of what constitutes family violence and “reasonable” responses to it.
As Clark explained in parliament:
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.
Consequently, while some family violence advocates and scholars have expressed concern as to what effect the abolition of defensive homicide will have on persons who kill in the context of family violence, the intention of the reforms is certainly not to provide a “tough on crime” response to this vulnerable category of offender. Rather, it is to improve the way in which their experiences of violence are understood within the framework of the law.
Another key feature of the bill is its desire to address improper evidence about homicide victims in contested trials. To do this, the bill introduces evidence reforms that allow for the exclusion of evidence that would “unnecessarily demean the deceased”.
Legal narratives that act to blame the deceased victim in homicide cases have continued to plague the Victorian criminal courts despite the abolition of the partial defence of provocation. This illustrates that reforming legal categories in itself may be insufficient in overcoming this problematic trend in Victorian criminal courts.
Protections against victim-blaming evidence serve an important purpose. It positions Victoria as the first Australian jurisdiction to illustrate such a commitment to ensure the just treatment of homicide victims throughout the court process. In commending the bill to parliament, Clark explained:
This reform is designed to reduce unjustifiable attacks on the character and reputation of the deceased during homicide proceedings. Victim-blaming has been a significant problem in the past, and can cause significant distress and trauma for the victim’s family and friends.
This will undoubtedly be a welcomed change for the families of homicide victims who for too long in contested trials have had to endure the blackening of their deceased loved ones character, without the obvious opportunity to counter any such evidence.
These are important reforms. The bill should be commended and implemented without hesitation.