Crimes (Homicide) Bill
Circulation Print
EXPLANATORY MEMORANDUM
551338
BILL LA CIRCULATION 7/10/2005
Clause Notes
PART 1—PRELIMINARY
Clause 1sets out the main purposes of the Act.
The first is to amend the Crimes Act 1958 to remove provocation as a partial defence to murder.
Another of the Bill's main purposes is to amend the Crimes Act 1958 to create a new offence of defensive homicide. A person is guilty of this offence if he or she intentionally or recklessly kills another person while believing that the conduct is necessary to defend himself, herself or another person from the infliction of death or really serious injury but he or she did not have reasonable grounds for that belief. This offence can form the basis for an alternative verdict to murder.
TheBill also amends the Crimes Act 1958 to revise the offence of infanticide.
In addition, a main purpose of the Bill is to provide expressly for self-defence, duress and sudden or extraordinary emergency and the relevance of intoxication in relation to homicide offences.
The final main purpose of the Bill is to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to provide further for the defence of mental impairment.
Clause 2provides that the Act comes into operation on the day after the day on which it receives the Royal Assent.
PART 2—AMENDMENT OF THE CRIMES ACT 1958 AND CONSEQUENTIAL AMENDMENT OF OTHER ACTS
Clause 3inserts a new section 3B into the Crimes Act 1958. The new section abolishes the common law rule that provocation reduces the crime of murder to manslaughter.
Clause 4inserts a new section 4 into the Crimes Act 1958. This provides that a verdict of guilty of the offence of defensive homicide (which is created by the new section 9AD in clause 6) is available as an alternative verdict on a trial for murder.
Clause 5substitutes a new section 6 in place of the existing section 6 (Offence of Infanticide) of the Crimes Act 1958. In contrast to the existing section 6, the new section 6 refers to situations where the accused person's balance of mind was disturbed because of "a disorder" consequent on her giving birth. The existing section 6 refers to "the effect of lactation". It also extends the application of the offence from 12 months to 2 years.
Clause 6inserts a new Subdivision (1AA) (Exceptions to Homicide Offences) into Division 1 (Offences against the Person) in Part 1 (Offences) of the Crimes Act 1958.
New section 9AB defines "intoxication" (see also new section9AJ) and "relevant offence" and provides that the new Subdivision applies only to relevant offences.
New section 9AC creates an exception to the offence of murder. Under this provision, a person is not guilty of murder if he or she carries out conduct (which could include an act or an omission) that would otherwise constitute murder if he or she believes the conduct to be necessary to defend himself, herself or another person from the infliction of death or really serious injury.
Asa matter of law, this test is a subjective one; but as a matter of evidence, the less reasonable the asserted belief is, the less likely it is that the accused person actually had that belief (see, for example, DPP v. Morgan [1976] AC 182 for a situation where the same principle has been expressed in a different context).
Ifa person is on trial for murder, and the prosecution does not satisfy the jury beyond reasonable doubt that the accused person did not have the relevant belief, the jury may return a verdict of guilty to defensive homicide under the alternative verdict provision in new section 4 of the Crimes Act 1958inserted by section 4 of this Act.
New section 9AD creates a new indictable offence called defensive homicide. The new offence has been created to prevent any confusion in murder trials where the issues to be considered by the jury include both—
- whether the killing was done with the requisite intention or recklessness, or was simply an unlawful and dangerous act; and
- whether the accused believed that his or her conduct was necessary to defend himself, herself or another, and whether there were reasonable grounds for that belief.
The new offence of defensive homicide will make it clear in such trials that, if a jury returns a verdict of manslaughter, it will have been on the basis that the jury found that the prosecution had not proved that the accused killed intentionally or recklessly.
If the jury returns a verdict of defensive homicide, it will be clear that the jury had found that the prosecution had proved that the accused did intend to kill or was reckless as to the killing, but had not proved that the accused did not believe that it was necessary to do what he or she did in self-defence or defence of another person.
New section 9AE creates an exception to the offence of manslaughter. The elements of the exception are based on the elements of self-defence stated in Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645 at 661–662. Under this section, a person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary for any of the reasons specified in the section and if there are reasonable grounds for that belief.
New section 9AF provides that the exceptions to murder (section9AC) and manslaughter (section 9AE) do not apply if the accused person is responding to lawful conduct which the accused person knows is lawful conduct: for instance, if the accused person kills a member of the police force who is using lawful force against the accused person in order to arrest him or her.
It is not intended that conduct that will be lawful merely because the person carrying it out is not guilty of an offence in carrying it out. For example, if person A suffers from mental impairment and violently attacks person B, person A is not guilty of an offence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; however, this does not mean that personA is acting lawfully for the purposes of this section. Ifperson B responded with force to person A's attack and killed person A, person B may still seek to rely on the exceptions in section 9AC or 9AE.
Newsection 9AG provides that a person is not guilty of a relevant offence (defined in section 9AB) in respect of conduct carried out by him or her under duress. Under existing Victorianlaw the principle of duress does not extend to murder. This section removes that limitation.
Sub-section(3) precludes reliance on duress if the threat is made by or on behalf of a person with whom the accused person is voluntarily associating for the purpose of carrying out violent conduct. This could include conduct such as an armed robbery or a rape.
New section 9AH contains some explanatory provisions dealing with family violence (family violence is defined in sub-section(4)).
The section does not have any effect on the existing law in relation to matters that do not involve an allegation of family violence.
Theword "may" in sub-section (1) and in the fourth line of
sub-section (2) is not intended to have the same meaning as in section 45 of the Interpretation of Legislation Act 1984, but is used in the sense of possibility.
Sub-section(1) affirms a number of court decisions or comments (including Osland v. The Queen (1998) 197 CLR 316 atparagraph 172 and R v. Portelli [2004] VSCA 178 at paragraph19) that have acknowledged that in some cases, particularly those involving family violence, a lack of immediacy will not necessarily mean that the accused did not believe that his or her actions were necessary and based on reasonable grounds.
Sub-sections (2) and (3) highlight the kinds of relationship and social context evidence that may be relevant in relation to self-defence and duress.
Sub-section(4) defines "family violence" and other words and expressions used in the definition of "family violence". Thedefinition of "family member" is based in part on the definition in section 3 of the Crimes (Family Violence) Act 1987.
New section 9AI provides that a person is not guilty of a relevant offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency. This is to remove uncertainty about whether, under current Victorian law, there is an exception to murder when a person acts in response to a sudden or extraordinary emergency.
New section 9AJ sets out how, if at all, a person's intoxication may be taken into account when applying various tests involving reasonableness.
The section is modelled in part on clause 8.4 of the Model Criminal Code. It distinguishes between intoxication that is self-induced and intoxication that is not self-induced.
Sub-section(1) deals with intoxication in relation to "reasonable belief" (as used, for example, in section 9AI(2)).
Sub-section(2) deals with intoxication in relation to "reasonable grounds" (as used, for example, in section 9AD).
Sub-section(3) deals with intoxication in relation to "reasonable response" (as used, for example, in section 9AI(2)(c)).
Sub-sections (4) to (6) deal with intoxication that is not self-induced.
Clause 7provides for the transitional effect of the changes to the Crimes Act 1958made by this Act.
The amendments to the Crimes Act 1958 made by clause 3, 4, 5 or 6 of this Act (regarding the abolition of provocation, the creation of the offence of defensive homicide, etc) apply only to offences alleged to have been committed on or after the commencement of this Act.
Clause 8amends a series of legislative provisions to add references to the new offence of "defensive homicide" created by section 9AD in clause 6.
Clause 9deletes obsolete references to offences specified in three sections of the Crimes Act 1958that have been repealed.
PART 3—AMENDMENT OF THE CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997
Clause 10amends the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to deal with situations where the mental impairment of an accused person is not in dispute.
The clause allows the trial judge to hear expert evidence about whether the accused was mentally impaired at the time of the killing, without a jury being empanelled and to direct that a verdict of not guilty because of mental impairment be recorded. This process will be available only if both the defence and the prosecution agree that the defence of mental impairment is established. If the judge is not satisfied that the defence of mental impairment is established, the judge must direct that the accused be tried by a jury.
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