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Defences to Homicide Options Paper

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Defences to Homicide Options Paper Victorian Law Reform Commission Defences to Homicide Options Paper Victorian Law Reform Commission GPO Box 4637 Melbourne Victoria 3001 Australia DX 144 Melbourne, Vic Level 10 10-16 Queen Street Melbourne Victoria 3000 Australia Telephone +61 3 8619 8619 Facsimile +61 3 8619 8600 TTY 1300 666 557 1300 666 555 (within Victoria) [email protected] www.lawreform.vic.gov.au CALL FOR SUBMISSIONS The Victorian Law Reform Commission invites your comments on this Options Paper and seeks your responses to the recommendations and questions that are raised. If you wish to make a submission to us on this reference, you can do so by mail, email, phone, fax or in person. If your submission is in writing, there is no particular form or format you need to follow. If you prefer to make a submission by phone or in person, contact the Commission and ask to be put through to one of the researchers working on the Defences to Homicide reference. You can send your written submissions by post, or by email to <[email protected]>. If you need any assistance in preparing a submission, please contact the Commission. If you need an interpreter, please contact the Commission. If you would like your submission to be confidential, please indicate this clearly when making the submission. If you do not wish your submission to be quoted, or sourced to you in a Commission publication, please let us know. Unless you have requested confidentiality, submissions are public documents, and may be accessed by any member of the public. DEADLINE FOR SUBMISSIONS: 28 NOVEMBER 2003 Please note that this Options Paper contains a number of case studies, each of which is based on a real case. In each case the names of the accused and the victim has been changed and in some cases the details of the case have been changed. The case studies also contain details of offences, where this is necessary to explain the issues involved. These details may be disturbing to some readers. Published by the Victorian Law Reform Commission. The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria. This Options Paper reflects the law as at 1 February 2003. © September 2003 Victorian Law Reform Commission. This work is protected by the laws of copyright. Except for any uses permitted under the Copyright Act 1968 (Cth) or equivalent overseas legislation, no part of this work may be reproduced, in any manner or in any medium, without the written permission of the publisher. All rights reserved. The publications of the Victorian Law Reform Commission follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citations (2nd ed, 2002). Designed by Andrew Hogg Design. Developed by Linton (Aust) Pty Ltd. National Library of Australia. Cataloguing-in-Publication. Defences to homicide: options paper. Bibliography. ISBN 0 9581829 7 3 1. Homicide - Law and legislation - Victoria. 2. Defence (Criminal procedure)-Victoria I. Victoria Law Reform Commission 345.9450252 Contents PREFACE VII CONTRIBUTORS IX TERMS OF REFERENCE IX ABBREVIATIONS IX EXECUTIVE SUMMARY IX QUESTIONS IX CHAPTER 1: INTRODUCTION The Purpose of this Options Paper 9 What is Homicide? 9 Defences and Partial Excuses to Homicide 9 Interaction Between Offences, Defences and Sentencing 9 Our Approach 9 Structure of this Paper 9 CHAPTER 2: DATA AND GENERAL STATISTICS Introduction 9 What Did the Commission’s Study Examine? 9 Data Sources and their Limitations 9 What Information did the Study Collect? 9 Characteristics of Accused and Deceased 9 Who Killed Whom? 9 The Homicide Context 9 The Prosecution Process 9 Use of Defences 9 CHAPTER 3: PROVOCATION Background 9 What is Provocation? 9 What is the Legal Test for Provocation? 9 When is Provocation Used? 9 Why Reform Provocation? 9 Should Provocation be Reformed? 9 Lack of Intention 9 CHAPTER 4: SELF-DEFENCE Background 9 What is the Legal Test for Self-Defence? 9 When is Self-Defence Used? 9 Why Reform Self-Defence? 9 Recent Developments in the Law: The Battered Woman Syndrome 9 Retain the Status Quo? 9 Options for Reform 9 CHAPTER 5: PEOPLE WITH MENTALLY IMPAIRED FUNCTIONING WHO KILL Background 9 What Defences Are Available for Mentally Impaired People Who Kill? 9 Reforming Mental State Defences—Broad Issues 9 Mental Impairment 9 Why Reform the Defence of Mental Impairment? 9 Options for Reform 9 The Homicide Prosecution Study 9 Why Introduce Diminished Responsibility? 9 Reasons Not to Introduce Diminished Responsibility 9 Automatism 9 Reasons to Reform Automatism 9 Changes to the Procedure 9 CHAPTER 6: INFANTICIDE Introduction 9 The Defence of Infanticide 9 Criticisms of the defence 9 Gender Bias 9 Background and Social Context 9 Other Problems with the Current Formulation of Infanticide 9 Infanticide in Other Jurisdictions 9 Options for Reform 9 CHAPTER 7: A NEW APPROACH? Background 9 Summary of Issues and Problems 9 Looking Beyond the Categories — A New Approach ? 9 Problems with the Reasons Approach 9 Mental Condition Defences and Reasons 9 BIBLIOGRAPHY 9 APPENDIX 1: HOW HOMICIDE CASES ARE PROCESSED 9 APPENDIX 2: ADDITIONAL TABLES 9 List of Figures, Graphs and Tables Page No FIGURES Figure 1 Possible Defence Where there is an Intention to Kill 3 Figure 2 Allegations of Domestic Violence Against Accused and Deceased by Gender of 21 Accused and Deceased. GRAPHS Graph 1 Number of Accused per Homicide Incident 10 Graph 2 Who Killed Whom 16 Graph 3 Relationship of Male and Female Accused to Deceased 18 Graph 4 Relationship of Male and Female Deceased to Accused 19 Graph 5 Type of Weapon Used by Male and Female Sole Accused 23 Graph 6 Broad Context of the Homicide Incident 26 Graph 7 Context in which Male and Female Accused Kill 27 Graph 8 Sexually Intimate Homicides—Who Killed Whom 28 Graph 9 Sexual Intimacy Homicides—Motivation of Male and Female Accused 29 Graph 10 All Homicide Charge Outcomes for Male and Female Accused 35 Graph 11 All Homicide Charge for Accused and Gender of Deceased 37 Graph 12 Possible Effect of Context on Outcome 39 Graph 13 Outcomes where Male Accused Raised Provocation at Trial 52 Graph 14 Trial Outcomes for Male Accused Raising Self-Defence at Trial 109 TABLES Table 1 Maximum Penalties for Homicide Offences 6 Table 2 Characteristics of the Homicide Accused and Deceased 14 Table 3 Relationship Between Age of the Deceased and the Gender of the Accused 17 Table 4 Allegations of Domestic Violence Against the Accused—Gender of Deceased by 20 Gender of Accused Table 5 Allegations of Domestic Violence Against the Deceased—Gender of the 21 Deceased by Gender of the Accused Table 6 Killings in the Family Context and Gender of Accused 32 Table 7 Charges and Presentments for Male and Female Accused 33 Table 8 Please and Charges at Trial for Male and Female Accused 34 Table 9 Trial Outcomes for Male and Female Accused 36 Table 10 Trial Outcomes for Male and Female Deceased 38 Table 11 Defences Raised at Any Stage of the Prosecution by Male and Female Accused 43 Table 12 Defences Raised at Trial by Male and Female Accused 43 Table 13 Successful Defences Raised at Trial and the Homicide Context 44 Table 14 Context in Which Male Accused Raised Provocation at Trial 51 Table 15 Defences Raised at Trial for Homicides in the Context of Sexual Intimacy 55 Table 16 Context in which Male Offenders Raise Self-Defence at Trial 108 Table 17 Statutory Definitions Covering Impaired Mental Functioning 188 Table 18 Major Categories of Mental Illness/Impairment 197 APPENDIX 2: ADDITIONAL TABLES Table 1 Number of Accused Involved in Homicide Incidents, Gender of Deceased by 263 Gender of Accused. Table 2 Age Group of Accused by Gender of Accused 263 Table 3 Age Group of Deceased by Gender of Deceased 264 Table 4 Accused’s Relationship to Deceased by Number of Accused 264 Table 5 Context of Homicide in Cases Involving Allegations of Prior Domestic 265 Violence Against the Accused Table 6 Type of Weapon Used by Male and Female Deceased 265 Table 7 Context of the Homicide by Male and Female Deceased 266 Table 8 Gender of Deceased and Principal Outcome (Murder or Manslaughter Only) 266 by Median Sentence Imposed for Principal Offence with Gender of Accused Table 9 Gender of the Deceased and the Context of the Homicide by Gender of 267 Accused Table 10 Context of the Homicide Incident and Defences Raised (at Any Stage of the 268 Prosecution) by Gender of the Accused Table 11 Context of the Homicide Incident and Defences Raised (at Trial) by Gender 271 of the Accused Table 12 Context of the Homicide Incident and History of Domestic Violence 273 Allegations Against the Accused Table 13 Context of the Homicide Incident and Principal Outcome (Murder and 274 Manslaughter Only) by Median Sentence Imposed for Principal Offence with Gender of Accused vii Preface Publication of this Options Paper marks the second stage of the Victorian Law Reform Commission’s work on defences to homicide. The Paper is intended to stimulate discussion about possible changes to the current law and provide the basis for the Commission’s consultations on whether and how the law should be changed. The Options Paper argues that reform of this area of law should take account of the social context in which homicides typically occur. Chapter 2 describes the contexts in which people kill and provides information about the defences raised by those who are charged with homicide offences. The Paper goes on to describe the main defences and partial excuses to homicide, including self-defence, provocation, infanticide and mental impairment.
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