Farrugia, Vincent (2020) Family Violence and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic): Justice in the Accessibility of Self-Defence. PhD thesis, Victoria University.

Abstract

In 2014, the Crimes Act 1958 (Vic) was reformed by the enactment of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) to abolish the offence of defensive homicide. It was in part replaced by a redrafted provision on self-defence to better accommodate responses to family violence and supplemented by family violence jury directions within the Jury Directions Act 2015 (Vic). These reforms were intended to help juries better assess self-defence in a family violence context so that where the actions of a victim of family violence were genuine and reasonable in the circumstances as the victim perceived them, they would be acquitted altogether. Although the reforms sought to respond to long-standing criticisms that the law of self-defence had failed to adequately accommodate victims of family violence, the 2016 Victorian Royal Commission into Family Violence nevertheless found that the State of Victoria was inadequately responding to the social harm caused by family violence. To ascertain if the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) and amendments to the Jury Directions Act 2015 (Vic) had given victims of family violence who killed their violent partners greater access to self-defence, eight prosecutions heard pursuant to the former law of self-defence under the Crimes (Homicide) Act 2005 (Vic) were analysed using John Rawls’ theory of justice. The analysis revealed 14 examples of imperfect procedural justice which resulted in no women successfully accessing self-defence despite cogent evidence being available. Three relevant prosecutions heard pursuant to the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) were also analysed. The analysis revealed an acquittal, a discontinuance and one instance of imperfect procedural justice which suggested that access to self-defence had increased. 12 stakeholders in the criminal justice system were interviewed to probe why these injustices had occurred and whether the current law could be argued to have increased the accessibility of self-defence to victims of family violence. On the former law, the data identified problems including: the provision of dated legal advice; overzealous prosecutions; victims feeling so remorseful that they pleaded guilty despite self-defence being available; defence counsel not raising the family violence self-defence provisions at trial; the complexity of the law and jury instructions. On the current law, the interviews indicated that the accessibility of self-defence had increased due to the revised test for self-defence, Victoria’s new family violence jury directions, increased judicial and professional receptivity and the simplification of the law. However, professional pressures remained in the realm of plea negotiations; pressures continuing to pose foreseeable risks of imperfect procedural justice. Specifically, the abolition of defensive homicide and the charging practices of the Office of Public Prosecutions were identified to have, at times, perpetuated the pressure on victims of family violence to plead guilty to lesser offences despite the existence of cogent evidence of self-defence. Matters were recommended, including, inter alia: the provision of a brief to the Victorian Law Reform Commission and Department of Justice to review the operation of the legislation to ensure that the legislation consistently achieves its objectives. Further, that the prosecution policy of the Office of Public Prosecutions concerning its discretion to prosecute be amended to contain a comprehensive policy informing the prosecutions of victims of family violence with viable claims to self-defence.

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