Professor Marcia Neave, 18 November 2004
Welcome to the launch of the Victorian Law Reform Commission’s Defences to Homicide Final Report. I want to start by acknowledging the traditional owners of this land, the Wurrundjeri people.
Many of you here today contributed to the Commission’s work. I want to thank you all and particularly Victoria Moore and Siobhan Mc Cann who were the researchers who worked on the report.
Our report recommends changes to the way the law deals with the worst form of violence imaginable – the killing of another person.
We argue that defences to homicide should reflect the situations in which killings typically occur.
Between 1997 and 2001 in Victoria, 182 people were committed for trial for homicide.
Around one-third of Victorian homicides involved people killing their sexual partner, former partner or sexual rival. Of this third, most involved men killing women.
Women are more likely to be killed by their partners, or former partners, than by anyone else.
Men who killed their partners, or ex-partners, usually did so because they were jealous, or felt they had lost control –‘if I can’t have her then no-one will’.
When women killed their partners, they usually did so in response to ongoing violence.
In other words, family homicides are often the tip of the iceberg of another tragedy – family violence.
Spontaneous killings are another large category of homicides. Most of these involve men killing other men in fights.
We have taken these facts into account in the 51 recommendations in our report. I will talk briefly about three of the main topics – provocation, self-defence and evidence.
We recommend that the partial excuse of provocation, which reduces murder to manslaughter, be abolished.
Initially, we considered a range of ways of reforming provocation.
One option was to say that words alone should not be regarded as provocation.
Another option was to prevent an accused from relying on the fact that there partner has left them or had an affair.
In the end, the commission unanimously decided provocation was unsalvageable.
Many of us found this a difficult decision. I have personally gone on record to defend provocation in the past.
But we all now believe that the arguments for abolishing provocation are overwhelming.
Provocation, as an excuse to murder, goes back to the days when people fought duels to defend their honour.
Provocation allowed the court to impose a sentence of imprisonment, rather than a mandatory death sentence, on people who killed in hot blood.
The commission believes that rage should no longer be an excuse for intentionally killing another person.
It should not be an excuse that a person has left a relationship.
It should not be an excuse that a person has had an affair.
And it should not be an excuse that the person has looked at or spoken to the accused in a way that makes him or her lose control and kill.
Families of people who have been killed in anger want intentional killings to be labelled as murder.
Public discussion, especially over the past few weeks, suggests that the community agrees.
There will, however, be some rare cases where we will understand why a person kills someone else.
We could empathise, for example, with a mother who killed a man she discovered had sexually abused her child.
She may sometimes be able to rely on self-defence, which includes defence of others. But if not, the abolition of provocation will mean she may be convicted of murder. But it will not prevent the judge from taking the circumstances of the case into account at sentencing.
Some people oppose the abolition of provocation because they are worried about defences for women who kill in response to violence. This brings me to our recommendations about self-defence.
We believe that it should be made easier for people who kill in response to family violence to rely on self-defence.
People should be able to plead self-defence if they believe it is inevitable they will be harmed, even if the harm will not occur immediately.
For example, if a man who has beaten his wife many times threatens to give her a bashing, and his wife kills him while he is sleeping, she should be able to argue/plead self-defence.
It should be made clear that the use of force in self-defence may be a reasonable response in the circumstances as the person perceives them, even if it is greater than the force used by the victim.
Women often use a weapon when they act in self-defence. Under our recommendations, a smaller, weaker person who uses a weapon to defend herself may be able to rely on self-defence.
Under the present law, a woman who kills a violent partner and successfully relies on provocation will be convicted of manslaughter.
Under our proposals, a woman who kills a violent partner and successfully relies on self-defence could be acquitted.
We also recommend the reinstatement of the partial defence of excessive self-defence.
This will be available to people who genuinely act to defend themselves, but who use excessive force.
The change will mean they can be convicted of manslaughter, rather than murder, as is the case under the present law.
Our third focus for reform is evidence law. Though the changes are technical they are very important.
Only a small number of people who experience family violence report it to the police, or seek an intervention order.
This means that men charged with killing their partners can say their acts were one-off events, rather than part of a pattern of violence and control.
It also makes it difficult for women who kill a man who has beaten them for many years to convince a jury that this violence actually occurred.
Our report recommends that evidence of what the victim of violence told another person should be admissible, to prove the violence occurred.
Our reforms to hearsay evidence are consistent with the Uniform Evidence Act, which already applies in New South Wales, Tasmania, and the ACT, and under Commonwealth law.
We also believe that juries often have a poor understanding of the dynamics of family violence.
Many people, for example, find it hard to understand why woman do not leave violent men.
We think experts should be able to give evidence to help juries understand how perpetrators of violence and their victims typically behave.
This will make easier for a jury to understand why a person may kill in response to a long history of violence.
The killing of any person is a terrible tragedy.
More work needs to be done to prevent family violence and help people resolve their disputes constructively. The commission is currently reviewing the intervention order system and will make recommendations to the government about what should be done to better protect families from violence.
But when the unthinkable happens, and a person is killed, the law should provide just outcomes for the accused, for victims’ families, and for the community.
We believe that our recommendations will achieve this goal.