MONASH UNIVERSITY

FACULTY OF LAW
LAW 7264 PRINCIPLES OF CRIMINAL LAW - 2014
Lecture Guide Topic 4 Manslaughter, self defence, defensive homicide
1. Introductory Note s 5 Crimes Act (punishment for manslaughter, level 3
imprisonment), and voluntary and involuntary manslaughter. Voluntary
manslaughter is dealt with in WW !
th
edition "hapter 5 (note, however, that mu#h of
this #hapter deals with provo#ation, whi#h no longer e$ists in Vi#toria). "hapter % deals
with involuntary manslaughter. Note also that the terms voluntary and involuntary
#an &e misleading in relation to manslaughter. 'hey do not mean unwilled in the sense
dis#ussed earlier in relation to automatism.
(t #ommon law there are #onsidered to &e two types of involuntary manslaughter)
unlawful and dangerous a#t manslaughter* negligent manslaughter* (a further #ategory,
manslaughter &y omission, is &est #onsidered a type of negligent manslaughter) see WW
!
th
edition %.!). +rior to Wilson v R (,,!) -. "/0 33 at 333* 1- (/0 !5-, it was
#onsidered that a third #ategory of manslaughter e$isted, that of manslaughter &y the
intentional infli#tion of &odily harm. 'his type e$isted where the vi#tim died as a result
of a &low intentionally given and amounting to a &attery, even though the death was an
unusual #onse2uen#e of a &low of the 3ind given) see R v Holzer 4,%56 V0 .5.
2. nla!ful and dangerous act manslaughter 'he #ommon law of
manslaughter developed from the old rule that if the a##used 3illed another in the #ourse
of #ommitting an unlawful a#t, the a##used was ne#essarily guilty of manslaughter. 'he
#ourts limited the unduly harsh operation of this rule. 7n pra#ti#e, the most #ommon
a#tion giving rise to lia&ility under this head is an assault giving rise to death.

2.1 Unlawful 'he first limitation was that unlawful a#t referred to an a#t
su&8e#t to #riminal and not simply #ivil punishment. 9e#ondly, the unlawful a#t must
also &e dangerous (see R v Larkin 4,.36 (ll :0 !- at !,).
"riminal a#ts a##epted as suffi#ient for unlawful a#ts in#lude attempted assault*
unlawful wounding* attempted ro&&ery* &urglary* arson* a&ortion (where unlawful, su#h
as under the pre;!115 law, or when #arried out &y an un2ualified person)* and
dis#harging a firearm in a pu&li# pla#e (thus, note that arson #ausing death, and unlawful
a&ortion, are li3ely to &e manslaughter not murder in Vi#toria).
<ffen#es of negligen#e or #arelessness su#h as dangerous driving have &een
e$#luded from the #ategory of unlawful a#t. (##ording to /ord (t3ins in Andrews v
!! 4,3-6 (" 5-%*
='here is an o&vious differen#e in the law of manslaughter &etween doing an
unlawful a#t and doing a lawful a#t with a degree of #arelessness whi#h the /egislature
1
ma3es #riminal. 7f it were otherwise a man 4or woman6 who 3illed another while driving
without due #are and attention would e$ ne#essitate #ommit manslaughter>.
'he prose#ution must prove ea#h element of the unlawful a#t, in#luding the
re2uisite fault element) see R v Lam" 4,%-6 ! ?@ ,5, WW !
th
edition %.5.
"ourts have not always &een #onsistent with this approa#h to unlawful) see R v
Cato 4,-%6 W/0 1.
!em"le v #$e %ueen (,-) !. "/0 1-.
'he Vi#torian /aw 0eform "ommission has re#ommended merging the #ategory
of unlawful and dangerous a#t manslaughter with that of negligent manslaughter. 7t
argues that the re2uirement of unlawfulness has nothing relevant to add.
Aangerousness is the 3ey element, and is assessed &y an o&8e#tive test (as is the test for
#riminal negligen#e)) see 0eport No. .1, Homicide, p.3.
2.2 an&erous Aangerous means li3ely to in8ure someone. (##ording to the
Vi#torian #ourts, the #ir#umstan#es must &e su#h that a reasona&le man in the a##useds
position, performing the very a#t whi#h the a##used performed, would have realised that
he was e$posing another or others to an appre#ia&le ris3 of really serious in8ury (R v
Holzer per 9mith B, later a##epted &y the Cigh "ourt in Wilson). (##ording to the Cigh
"ourt in Wilson (,,!) -. "/0 33 at 335*
=7n the end the 8ury has to determine whether the a##useds a#t in relation to the
de#eased was, from the standpoint of a reasona&le person, an a#t #arrying with it an
appre#ia&le ris3 of serious in8ury to the de#eased>.
'he only differen#e &etween this formulation and that adopted in Holzer is that
appre#ia&le ris3 of really serious in8ury has &een #hanged to appre#ia&le ris3 of serious
in8ury.
'he ma8ority in Wilson did not define what amounts to serious in8ury. 7t appears
from awson (,55) 5 "r (pp 0 51 that psy#hiatri# harm will not &e suffi#ient.
(ppre#ia&le ris3 seems to mean a signifi#ant, rather than remote, ris3. (9ee WW !
th
edition %.5).
'uck and 'uck (,%1) .. "r (pp 0 !3.
". #egligent manslaughter
( 3illing that o##urs through gross negligen#e amounts to manslaughter in
Vi#toria. (t #ommon law the test is whether there was =a great falling short of the
standard of #are> that a reasona&le person would have e$er#ised, involving =su#h high
ris3 that death or grievous &odily harm would follow that the doing of the a#t merited
#riminal punishment>) ()dam v #$e %ueen 4,--6 V0 .31 at ..5 per Doung "B,
E#7nerney B and "ro#3ett B.
<n the manslaughter issue, the #ourt in ()dam re8e#ted earlier statements that
re#3lessness was ne#essary in order to show manslaughter &y #riminal negligen#e. 7t is
2
=suffi#ient if the prose#ution shows that the a#t whi#h #aused the death was done &y the
a##used #ons#iously and voluntarily, without any intention of #ausing death or grievous
&odily harm &ut in #ir#umstan#es whi#h involved su#h a great falling short of the
standard of #are whi#h a reasona&le man would have e$er#ised and whi#h involved su#h
a high ris3 that death or grievous &odily harm would follow that the doing of the a#t
merited #riminal punishment> (see WW !
th
edition %.,").
'here must, therefore, &e firstly a duty of #are. 'here is a general duty not to
#ause harm e$isting at #ommon law. Where an a##used omits to a#t in a manner that
#auses the vi#tims death, #riminal lia&ility will only &e imposed where the a##used was
under a duty to a#t.
( duty may arise at #ommon law as a result of a family relationship or as a result
of a person underta3ing to #are for another who is una&le to #are for him or herself) see
*tone and o"inson 4,--6 ?@ 35.* #aktak (,55) 3. ( "rim 0 33.. 'here is a duty to
=ta3e measures that lie within ones power to #ountera#t a danger that one has oneself
#reated>) R v +iller[,536 ! (" % per /ord Aiplo#3. 'here may also &e a duty of
#are imposed &y statute, su#h as duties imposed on do#tors* or a duty imposed on a
person employed in an o##upation &earing on the pu&li#s safety
'he standard of #are for negligent manslaughter is an o&8e#tive standard &ased on
the #on#ept of a reasona&le person in the same situation as the a##used) ()dam.
#a)lor (,53) , ( "rim 0 355
R v Lavender (!11.) . EV0 .,!, and see Deo, ="ase and "omment) Lavender>
(!11.) !5 Crim L, 31-.
R v *tone and o"inson 4,--6 ?@ 35. (WW !
th
edition %..").
R v -si. (!111) ! V0 5%, (WW !
th
edition %.).
R v Holness 4,-16 'as 90 -..
R v Wills 4,536 ! V0 !1.
R v Wacker 4!1136 . (ll :0 !,5 (WW !th edition %.).
R v Russell 4,336 V/0 5, (also in WW !th edition %.).
FR v /nstan 45,36 ?@ .51 (WW !th edition %.!")*
FR v #aktak 4,556 . N9W/0 !!% (WW !
th
edition %.-).
R v *t)man0 R v #a"er 4!11.6 N9W""( !.5 (WW !th edition %.%").
#$omas *am v R0 +an1u *am v R 4!16 N9W""( 3%.
4. $olicy% should unla!ful and dangerous act manslaughter &e merged !ith
negligent manslaughter' WW suggest that it #ould &e, as has the Vi#torian /aw
0eform "ommission. 'he ma8ority of the Cigh "ourt in Wilson v #$e %ueen re8e#ted
this &e#ause the tests for dangerousness &etween the two #ategories differ in two ways.
Girstly, manslaughter &y #riminal negligen#e re2uires a high ris3 that death or grievous
&odily harm would follow) ()dam. 7n #ontrast unlawful and dangerous a#t manslaughter
only re2uires an appre#ia&le ris3 of serious in8ury (however, in Holzer the #ourt
preferred at test of really serious harm, whi#h would render this distin#tion
insignifi#ant). 9e#ondly manslaughter &y #riminal negligen#e does not re2uire an
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unlawful a#t.
'he E""<" has suggested repla#ing the two #ategories of manslaughter with
one offen#e of dangerous #ondu#t #ausing death, supplemented with a separate #ategory
of manslaughter re2uiring intention or re#3lessness regarding serious harm.
(. )elf defence and defensive homicide.
5.1 9ee WW "hapter !, and note "rimes (#t provisions:
s. 4 Aefensive homi#ide is an alternative verdi#t to murder.
*+,. Murder-.self/defence.
( person is not guilty of murder if he or she #arries out the #ondu#t that would otherwise
#onstitute murder while &elieving the #ondu#t to &e ne#essary to defend himself or
herself or another person from the infli#tion of death or really serious in8ury.
*+0. 0efensive homicide
( person who, &y his or her #ondu#t, 3ills another person in #ir#umstan#es that, &ut for
se#tion ,(", would #onstitute murder, is guilty of an indi#ta&le offen#e (defensive
homi#ide) and lia&le to level 3 imprisonment (!1 years ma$imum) if he or she
did not have reasona&le grounds for the &elief referred to in that se#tion.
*+1. Manslaughter-.self/defence.
( person is not guilty of manslaughter if he or she #arries out the #ondu#t that would
otherwise #onstitute manslaughter while &elieving the #ondu#t to &e ne#essaryH
(a) to defend himself or herself or another person* or
(&) to prevent or terminate the unlawful deprivation of his or her li&erty or the li&erty
of another personH
and he or she had reasona&le grounds for that &elief.
*+2. )elf/defence e3ceptions do not apply in the case of
la!ful conduct
9e#tions ,(" and ,(: do not apply ifH
(a) the person is responding to lawful #ondu#t* and
(&) at the time of his or her response, the person 3nows that the #ondu#t is lawful.
5.2. G!"#$ 'he do#trine of self defen#e is #on#erned to guarantee that the #ondu#t of
the defendant is a rea#tion, and a rea#tion that is proportionate to the danger represented
&y the #ondu#t of another. 'here must &e &oth an o&8e#tive and a su&8e#tive assessment
of the &elief of the defendant as to the ne#essity of using for#e.
Note that the onus of proof remains on the prose#ution) ie on#e the a##used has
satisfied an evidential onus of proof, or raised enough eviden#e on whi#h a reasona&le
8ury #ould find self defen#e to e$ist, the prose#ution must then disprove the defen#e
&eyond reasona&le dou&t.
5.%. &'()' *WW 12
+,
-)+).! 12.4C/ 'he #ommon law do#trine of Ie$#essive self
4
defen#eI was a&olished in 2ecevic (,5-) %! "/0 %.5* - (/0 %. Eason "B said that
the law of self defen#e had &e#ome too #omple$ for 8udges to e$plain to 8uries. 7n
parti#ular, it had &e#ome too diffi#ult for 8udges to e$plain the notion of Ie$#essive self
defen#eI, that is the idea that a person whose a#tions in self defen#e went &eyond the
reasona&le should &e guilty of manslaughter, not murder. Eason "B thus agreed with
Wilson, Aawson and 'oohey BB, a&olishing the Ie$#essive self defen#eI idea. Ce said that
J'he ris3 that an a##used person may &e #onvi#ted of murder when he la#3s reasona&le
grounds for his &elief that the degree of for#e used was ne#essary for self defen#e will &e
alleviated &y several fa#tors. 7t is for the "rown to esta&lish that there was an a&sen#e of
reasona&le grounds for the a##usedIs &elief. ( 8ury will &e slow to ma3e su#h a finding if
the "rown has failed to satisfy them that the a##used did not honestly &elieve that the
for#e used was ne#essary. (nd the 8ury will not return a verdi#t of murder unless there
was an intention to 3ill or to do grievous &odily harmJ.
Wilson, Aawson and 'oohey BB #onsidered the #orre#tness of the e$#essive self
defen#e do#trine enun#iated in 3iro (,-5) . "/0 55. 'he do#trine was &ased partly
upon a view e$pressed &y Ai$on "B in Howe (,55) 11 "/0 ..5 at .%1; that
manslaughter was the #orre#t verdi#t in su#h a situation. Cowever 3iro had not &een
followed in :ngland, and a ma8ority of the 8udges had supported Ai$on "BIs view only to
ensure #onsisten#y in the law. "onse2uently the three 8udges in 2ecevic said that Jthere
is wisdom in the o&servation of the +rivy "oun#il in !almer that an e$planation of the
law of self defen#e re2uires no set words or formula. 'he 2uestion in the end is 2uite
simple. 7t is whether the a##used &elieved upon reasona&le grounds that it was ne#essary
in self defen#e to do what he did. 7t he had that &elief and there were reasona&le grounds
for it, or if the 8ury is left in reasona&le dou&t a&out the matter, then he is entitled to an
a#2uittalJ.
Note that Aeane and Kaudron BB, dissenting on this point, #onsidered that the
do#trine of e$#essive self defen#e should not &e a&olished.

5.4. C")+)')s0s .1 &'()'. 'he /aw 0eform "ommission of Vi#toria noted that it left
=unresolved the pro&lems, first, of the defendant #harged with murder who &elieves,
unreasona&ly, that it is ne#essary to 3ill the assailant* and se#ond, of the defendant who
uses more for#e than is ne#essary, to respond to a less serious threat. @oth su#h
defendants appear to &e guilty of murder>. 'he "ommission re#ommended that self
defen#e &e#ome fully su&8e#tive) that is, if the person honestly &ut mista3enly &elieved
the for#e was ne#essary and proportionate, he or she should not &e guilty of murder, &ut
only of manslaughter &y gross negligen#e. 7t re#ommended the #reation of a new #rime
of #ulpa&le homi#ide (hen#e the Vi#torian offen#e of defensive homi#ide).
5.5. O2"#+).! .1 s$1 -1!': 2")." +,"#+s. What 3ind of situation might ma3e the
a##useds rea#tion reasona&ly ne#essaryL 7n 2ecevic the situation and the threats made
&y the de#eased were #onsidered relevant.
5.6. O2"#+).! .1 s$1 -1!': -1!-#!+3s ',#"#'+")s+)'s4 .+," ')"'50s+#!'s. (t
#ommon law the test in 2ecevic is =whether the a##used &elieved upon reasona&le
grounds that it was ne#essary in self;defen#e to do what he did.> 7n determining whether
the a##useds &elief was =upon reasona&le grounds>, the #ourt ta3es into a##ount all the
5
fa#ts within the a##useds 3nowledge. 7t #an ta3e into a##ount not merely the immediate
threat or #ir#umstan#es, &ut also any prior #ondu#t of the vi#tim. 'his in#ludes previous
violen#e or assaults, provided those previous a#tions are not too remote. 7t is #lear,
therefore, that the #ourt #an ta3e into a##ount the effe#t of a history of violen#e &etween
the a##used and the vi#tim upon the mental state of the a##used. 'his has re#ently
&e#ome a##epted parti#ularly in relation to the &attered woman syndrome.
7t seems that the vi#tims prior #ondu#t, the relationship &etween the parties, and all fa#ts
within the a##useds 3nowledge may &e ta3en into a##ount. Cowever, #ourts will not &e
re#eptive to a defen#e &ased upon the a##useds ethni# or #ultural &a#3ground, physi#al
or mental disa&ilities, family history or other #hara#teristi#s unrelated to the vi#tims
prior #ondu#t.
5.7. R+"#+. 'here is no re2uirement that the a##used have retreated as far as
possi&le &efore attempting to defend him or herself. Whether or not the a##used has
retreated is merely a fa#tor for the 8ury to #onsider in assessing whether the a##useds
response was reasona&ly ne#essary.
5.6. 7.0s+)' H.0)')-: W.0! 8,. 9)$$ ().$!+ 2#"+!"s 'he history of
self defen#e dates &a#3 to the regulation of duels, in the #onte$t of disputes &etween
e2uals. Women rarely 3ill in the manner presumed &y the self defen#e do#trine. Women
who 3ill a sleeping or drun3en partner, or who use a weapon against an unarmed &ut
physi#ally stronger partner, may have diffi#ulty in having their a#tions re#ognised as self
defen#e. 'his is parti#ularly so where it is open to the prose#ution to argue that there
#ould not have &een a reasona&le &elief in the ne#essity to 3ill, &e#ause the option of
leaving the relationship was always availa&le.
(t #ommon law, the law on self defen#e in 2ecevic (,5-) %! "/0 %.5 said that
Jself defen#e is availa&le is the a##used &elieved on reasona&le grounds that it was
ne#essary to do in self defen#e what he didJ (p.%%). 'his formulation is #apa&le of
en#ompassing &attered women who 3ill in self defen#e) &ut women who defend
themselves Jin advan#e &y surprise atta#3s, arm themselves &efore &eing atta#3ed, or 3ill
during a lull in violen#e in the #ourse of a &attering in#identJ may lose their right to self
defen#e.
'he test in 2ecevic is an improvement upon the previous law in that it does not
spe#ifi#ally re2uire the threat of immediate or imminent harm) rather it fo#usses on the
ne#essity of the a##usedIs response. 7n addition it does not re2uire Ja threat of death or
really serious in8uryJ, whi#h also dis#riminates against &attered women) Jthere may,
however, rea#h a point in an ongoing relationship where a person #an no longer &e
e$pe#ted to tolerate the unavoida&le and #ontinual infli#tion of non;lethal painJ.
:ven apart from the diffi#ulties in the legal #on#ept of self defen#e, there is room
for &ias to operate in the interpretation of the law and in e$planations to 8uries. 'his &ias
is the result of Jthe prevailing #ommunity myths and stereotypes a&out domesti# violen#e
and &attered women that operate positively to interpret the offenderIs #ir#umstan#es
#ontrary to her own e$perien#e of them. :$amples #an &e found in e$planations of
domesti# violen#e #ou#hed in terms of the fault of the vi#tim. Cer failure to leave the
relationship (along with the assumption that this should always &e her responsi&ility and
6
will always &e possi&le or an effe#tive way of terminating the a&use), her in#itement of
the violen#e &y stereotypi#al female &ehaviour su#h as InaggingI, her en8oyment of the
violen#e &e#ause of maso#histi# personality traits, and her hopeless passivity in failing to
e$er#ise a minimum of self respe#tJ.
'he I&attered womenI syndrome, a defen#e &ased on eviden#e given &y
psy#hiatri# or psy#hologi#al witnesses and designed to introdu#e information #on#erning
the e$perien#es of women who have &een &attered, is now a##epted in (ustralia. 'his
defen#e, whi#h was originally &ased on the idea of Ilearned helplessnessI, that &attered
women are passive vi#tims, not in #ontrol of their own lives and depressed, has now &een
#riti#ised &oth for &eing in#onsistent with surveys of su#h women and with the very fa#t
of resorting to lethal self help.
'he I&attered womanI syndrome was first re#ognised in a "anadian #ase, R v
Lavallee (,,1) 9"0 55!. Busti#e @ertha Wilson said)
J7f it strains #redulity to imagine what the Iordinary manI would do in the position
of a &attered spouse, it is pro&a&ly &e#ause men do not typi#ally find themselves in that
situation. 9ome women do, however. 'he definition of what is reasona&le must &e
adapted to #ir#umstan#es whi#h are, &y and large, foreign to the world inha&ited &y the
hypotheti#al Ireasona&le manI =.
7n (ustralia, a##ording to some #ommentators, Jthe fo#us... has &een on why
women didnIt leave the relationship, and on the spe#ial nature of the psy#hologi#al
responses of women who have &een the vi#tim of ongoing a&useJ. :viden#e of the
women that they saw themselves as independent women and as #oping in diffi#ult
#ir#umstan#es has &een ignored in favour of the 8udgement of Ilearned helplessnessI. 'he
signifi#an#e of this is that the resort &y the woman to lethal self help then &e#omes
#hara#terised as Ilosing #ontrolI rather than as ne#essary and reasona&le in the
#ir#umstan#es.
R v -l&a Run1an1ic4 R v 5rica 6ontinnen (,,) 53 ( "rim 0 3%! (WW !th
edition !.,").
(##ording to su&missions made to the (/0" report No. %,, the &attered women
syndrom is too narrow) JWomen who murder their partners after lengthy mistreatment
should not need to defend their &ehaviour on the &asis they suffer I&attered women
syndromeI. 'his perpetuates a sense of wea3ness and illness) the hysteri#al woman.
WomenIs offending should not &e e$#used on the grounds of a supposed &iologi#al
frailty. 7nstead the #riminal law should #hange to refle#t the e$perien#e of the entire
#ommunityJ. (nother #laimed that the syndrome Jmerely sets up a narrow e$#eption to
the male norm of Ireasona&lenessI for those women whose e$perien#es #omply with its
re2uirements. 7n other words, it pres#ri&es what are reasona&le responses for &attered
women. Gor the rest of the population, in#luding those women who may have &een
&attered &y their partners &ut not I&attered enoughI to &e a&le to #laim the syndrome, the
male norm remainsJ (see (/0" report p.!-%).
F-sland v R (,,5) ,- "/0 3%, WW !
th
edition 4.3"6.
7
(.* 0efence of another. Note 462A Crimes Act: Use of force to prevent the
commission of an indictable offence.
( person may use su#h for#e not disproportionate to the o&8e#tive as he &elieves on
reasona&le grounds to &e ne#essary to prevent the #ommission, #ontinuan#e or
#ompletion of an indi#ta&le offen#e or to effe#t or assist in effe#ting the lawful arrest of a
person #ommitting or suspe#ted of #ommitting any offen#e.
(.14 +&olition of self/defence at common la!. Note that self defen#e at #ommon law
was held to have &een a&olished &y s ,(A in 'a"ic v #$e %ueen 4!116 V9"( ,5 (WW
!
th
edition !.5 para .).
6. T, #:.$)+).! .1 2".(.'#+).! #!- s5:s;5!+ -:#+: *s s %< C")0s A'+/.
@a#3ground reading)
Vi#torian /aw 0eform "ommission efences to Homicide7 8inal Re.ort !11. pp
!,;.!.
Vi#torian /aw 0eform "ommission, efences to Homicide -.tions !a.er, !113 "hapter
! Aata and Keneral 9tatisti#s.
Aept of Busti#e efensive Homicide7 iscussion !a.er (ug !11
http)MMwww.8usti#e.vi#.gov.auMresour#esMM!M!131351.3--&1#3,d-dfd3.!!!e%533Mdis#u
ssionpaperdefensivehomi#ide.pdf
Kraeme "oss, +rovo#ative 0eforms) ( "omparative "riti2ue (!11%) 31 Criminal Law
,ournal 35.
Vi#torian Aepartment of Busti#e, Aefensive Comi#ide) +roposals for /egislative
0eform, 9eptem&er !13.
Gor several years prior to the a&olition of provo#ation in Vi#toria, there was de&ate a&out
whether it served a useful purpose, or merely allowed murderers to es#ape the full
#onse2uen#es of their a#tions. 'he E""<" in ,,5, for e$ample, argued that)
; it engenders #on#eptual diffi#ulties #on#erning intention.
; the e$isten#e of provo#ation should &e refle#ted in senten#ing. 'here should &e
no need for a separate defen#e.
; hot &looded 3illers should &e 8ust as #ulpa&le as other 3illers.
; provo#ation is gender;&ased in that suddenness is ta3en into a##ount, even
though it is no longer stri#tly re2uired. 'his refle#ts male rather than female
patterns of aggressive &ehaviour.
; 7n addition note the de&ate #on#erning whether it allows a&usive men to parade
the fi#tion that their #ultures permit a&use.
Gollowing the de#ision in Rama&e 4!11.6 V9" 515, the middle #lass honour 3illing
of a wife who had stated her intention of leaving her hus&and, the government announ#ed
its intention to a&olish provo#ation. 7t repla#ed it with the #urrent defen#e of defensive
8
homi#ide.

Cowever, is defensive homi#ide having the results intendedL ( !13 Aepartment of
Busti#e #onsultation paper (Aefensive Comi#ide) +roposals for /egislative 0eform,
9eptem&er !13), responds to #ontinuing de&ate on this topi#.

Aefensive homi#ide, it was originally hoped, would ensure men li3e 0amage would &e
#onvi#ted of murder. No longer would it &e possi&le to argue that an ordinary person
#ould have &een provo3ed to 3ill &y the vi#tims #ondu#t. 7nstead murder would only &e
mitigated if the defendant was a#tually in fear of death or serious in8ury. 7t was hoped
this would ensure angry men would &e #onvi#ted of murder, while fearful women
(espe#ially family violen#e vi#tims who 3illed their partners) would #ontinue to have at
least a partial defen#e.

7n !11 a Aepartment of Busti#e Ais#ussion +aper suggested that defensive homi#ide may
not &e wor3ing in the way it was intended. 'he Vi#torian "oalition Kovernment was
ele#ted in Novem&er !11, its (ttorney;Keneral 0o&ert "lar3 having #laimed that this
law is 8ust not wor3ing as its supposed to have wor3ed and 8usti#e is not &eing served.
Gollowing in this vein, the !13 "onsultation +aper proposes the a&olition of the defen#e.
7t #ites data showing that men are &oth the overwhelming ma8ority of offenders #onvi#ted
of defensive homi#ide (!5 out of !5), as well as the overwhelming ma8ority of vi#tims
(!% out of !-). <nly a minority of offenders had a family relationship with the vi#tim (-
out of !5). 'hus, the defen#e is primarily &eing used &y men who 3ill other men, most
often (the paper suggests) in situations where the old defen#e of provo#ation would have
&een used.
7nstead of defensive homi#ide, the paper proposes, the #ommon law of self defen#e
should &e reintrodu#ed. 'his would &e &y way of a new s.3!! K "rimes (#t (p .3)
whi#h would essentially apply a two;fold test for self;defen#e. Girstly, the a##used must
&elieve that it was ne#essary to do what he or she did in self defen#e* and se#ondly, there
must &e reasona&le grounds for this &elief (or at least, the response must &e reasona&le in
the #ir#umstan#es as per#eived &y the a##used, a slightly different and more su&8e#tive
test).
7. C")0s A'+ 2".()s).!s: 1#0)$= ().$!' *>+"#'+s .!$=/.
*+5. 2amily violence
() Without limiting se#tion ,(", ,(A or ,(:, for the purposes of murder, defensive
homi#ide or manslaughter, in #ir#umstan#es where family violen#e is alleged a person
may &elieve, and may have reasona&le grounds for &elieving, that his or her #ondu#t is
ne#essaryH
(a) to defend himself or herself or another person* or
(&) to prevent or terminate the unlawful deprivation of his or her li&erty or the li&erty
of another personH
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even ifH
(#) he or she is responding to a harm that is not immediate* or
(d) his or her response involves the use of for#e in e$#ess of the for#e involved in the
harm or threatened harm.
(!) Without limiting the eviden#e that may &e addu#ed, in #ir#umstan#es where family
violen#e is alleged eviden#e of a 3ind referred to in su&se#tion (3) may &e relevant in
determining whetherH
(a) a person has #arried out #ondu#t while &elieving it to &e ne#essary for a purpose
referred to in su&;se#tion ()(a) or (&)* or (&) a person had reasona&le grounds for a &elief
held &y him or her that #ondu#t is ne#essary for a purpose referred to in su&;se#tion ()(a)
or (&)* or
(#) a person has #arried out #ondu#t under duress.
(3) :viden#e ofH
(a) the history of the relationship &etween the person and a family mem&er, in#luding
violen#e &y the family mem&er towards the person or &y the person towards the family
mem&er or &y the family mem&er or the person in relation to any other family
mem&er*
(&) the #umulative effe#t, in#luding psy#hologi#al effe#t, on the person or a
family mem&er of that violen#e*
(#) so#ial, #ultural or e#onomi# fa#tors that impa#t on the person or a family mem&er
who has &een affe#ted &y family violen#e*
(d) the general nature and dynami#s of relationships affe#ted &y family violen#e,
in#luding the possi&le #onse2uen#es of separation from the a&user*
(e) the psy#hologi#al effe#t of violen#e on people who are or have &een in a relationship
affe#ted &y family violen#e*
(f) so#ial or e#onomi# fa#tors that impa#t on people who are or have &een in a
relationship affe#ted &y family violen#e.
Note definitions of ?1#0)$= ().$!'?, meaning violen#e against that person &y a family
mem&er* and of ?().$!'?4 whi#h in#ludes physi#al, se$ual and psy#hologi#al a&use.
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