CRIMES AMENDMENT (ABOLITION OF DEFENSIVE HOMICIDE) BILL 2014
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2--AMENDMENT OF THE CRIMES ACT 1958 3 Division 1--Self-defence, duress, sudden or extraordinary emergency and intoxication and abolition of defensive homicide 3 3 Abolition of offence of defensive homicide and repeal of exceptions to homicide offences 3 4 New Part IC inserted 3 PART IC--SELF-DEFENCE, DURESS, SUDDEN OR EXTRAORDINARY EMERGENCY AND INTOXICATION 3 Division 1--General 3 322G Application of Part 3 322H Definitions 4 322I Onus of proof 4 322J Evidence of family violence 4 Division 2--Self-defence 7 322K Self-defence 7 322L Self-defence does not apply to a response to lawful conduct 8 322M Family violence and self-defence 8 322N Abolition of self-defence at common law 9 Division 3--Duress 9 322O Duress 9 322P Family violence and duress 10 322Q Abolition of duress at common law 10 i
Clause Page Division 4--Sudden or extraordinary emergency 10 322R Sudden or extraordinary emergency 10 322S Abolition of necessity at common law 11 Division 5--Intoxication 11 322T Intoxication 11 5 Amendment of other Acts consequential on repeal of offence of defensive homicide 12 Division 2--Complicity reform 13 6 New Subdivision (1) of Division 1 of Part II inserted 13 (1) Complicity in commission of offences 13 323 Interpretation 13 324 Person involved in commission of offence taken to have committed the offence 14 324A Other offenders need not be prosecuted or found guilty 15 324B Offender's role need not be determined 15 324C Abolition of certain aspects of complicity at common law 15 7 Amendments consequential on reform of law of complicity 16 Division 3--Transitional provision 19 8 New section 623 inserted 19 623 Transitional provision--Crimes Amendment (Abolition of Defensive Homicide) Act 2014 19 PART 3--AMENDMENT OF THE EVIDENCE ACT 2008 20 9 General discretion to exclude evidence 20 10 New Part 5 inserted in Schedule 2 to the Evidence Act 2008 20 PART 5--TRANSITIONAL PROVISION FOR CRIMES AMENDMENT (ABOLITION OF DEFENSIVE HOMICIDE) ACT 2014 20 22 Transitional--Crimes Amendment (Abolition of Defensive Homicide) Act 2014 20 ii
Clause Page PART 4--AMENDMENT OF THE JURY DIRECTIONS ACT 2013 22 11 Part 7 substituted 22 PART 7--SELF-DEFENCE OR DURESS IN THE CONTEXT OF FAMILY VIOLENCE 22 29 Application of Part 22 30 Part 3 does not apply 22 31 Definition 22 32 Direction on family violence 22 PART 8--TRANSITIONAL PROVISIONS 25 33 Transitional provisions 25 12 Schedule amended 25 2 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 25 PART 5--REPEAL OF AMENDING ACT 27 13 Repeal of amending Act 27 ENDNOTES 28 iii
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 [Assented to ] The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes The purposes of this Act are-- (a) to amend the Crimes Act 1958-- (i) to abolish the offence of defensive homicide and to provide for self- defence, duress, sudden or extraordinary emergency and 1
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 1--Preliminary s. 2 intoxication in relation to all offences; and (ii) to reform the law in relation to complicity; and (b) to amend the Evidence Act 2008 to empower the court to refuse to admit evidence if its probative value is substantially outweighed by the danger that it might unnecessarily demean the deceased in a homicide trial; and (c) to amend the Jury Directions Act 2013 to insert jury directions about family violence in a criminal trial in which self-defence or duress in the context of family violence is in issue; and (d) to make consequential and other amendments. 2 Commencement (1) This Part comes into operation on the day after the day on which this Act receives the Royal Assent. (2) Section 7(17) comes into operation on the later of-- (a) the day on which section 6 comes into operation; or (b) the day on which section 5 of the Sentencing Amendment (Baseline Sentences) Act 2014 comes into operation. (3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If a provision referred to in subsection (3) does not come into operation before 1 July 2015, it comes into operation on that day. __________________ 2
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 3 PART 2--AMENDMENT OF THE CRIMES ACT 1958 Division 1--Self-defence, duress, sudden or extraordinary emergency and intoxication and abolition of defensive homicide 3 Abolition of offence of defensive homicide and repeal of exceptions to homicide offences (1) Section 4 of the Crimes Act 1958 and the note at See: Act No. the foot of that section are repealed. 6231. Reprint No. 24 (2) In section 9 of the Crimes Act 1958-- as at 1 July 2013 (a) omit "or of defensive homicide"; and amending (b) omit "or defensive homicide". Act Nos 16/2004, 27/2011, (3) Subdivision (1AA) of Division 1 of Part I of the 20/2013, Crimes Act 1958 is repealed. 60/2013, 70/2013, (4) In section 464P(2)(a) of the Crimes Act 1958, for 72/2013, 77/2013, "manslaughter, child homicide or defensive 7/2014, 8/2014, homicide" substitute "manslaughter or child 17/2014, 25/2014, homicide". 26/2014, 36/2014 and (5) In section 464ZGA(2)(a) of the Crimes Act 1958, 37/2014. for "manslaughter, child homicide or defensive LawToday: www. homicide" substitute "manslaughter or child legislation. homicide". vic.gov.au 4 New Part IC inserted After Part IB of the Crimes Act 1958 insert-- "PART IC--SELF-DEFENCE, DURESS, SUDDEN OR EXTRAORDINARY EMERGENCY AND INTOXICATION Division 1--General 322G Application of Part This Part applies to any offence, whether against any enactment or at common law. 3
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 322H Definitions In this Part-- evidence of family violence has the meaning given in section 322J; really serious injury includes serious sexual assault. 322I Onus of proof (1) The accused has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, duress or sudden or extraordinary emergency (as the case may be). (2) If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary emergency (as the case may be). 322J Evidence of family violence (1) Evidence of family violence, in relation to a person, includes evidence of any of the following-- (a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member; 4
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (b) the cumulative effect, including psychological effect, on the person or a family member of that violence; (c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence; (d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser; (e) the psychological effect of violence on people who are or have been in a relationship affected by family violence; (f) social or economic factors that impact on people who are or have been in a relationship affected by family violence. (2) In this section-- child means a person who is under the age of 18 years; family member, in relation to a person, includes-- (a) a person who is or has been married to the person; or (b) a person who has or has had an intimate personal relationship with the person; or (c) a person who is or has been the father, mother, step-father or step- mother of the person; or 5
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (d) a child who normally or regularly resides with the person; or (e) a guardian of the person; or (f) another person who is or has been ordinarily a member of the household of the person; family violence, in relation to a person, means violence against that person by a family member; violence means-- (a) physical abuse; or (b) sexual abuse; or (c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to the following-- (i) intimidation; (ii) harassment; (iii) damage to property; (iv) threats of physical abuse, sexual abuse or psychological abuse; (v) in relation to a child-- (A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or 6
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring. (3) Without limiting the definition of violence in subsection (2)-- (a) a single act may amount to abuse for the purposes of that definition; and (b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial. Division 2--Self-defence 322K Self-defence (1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if-- (a) the person believes that the conduct is necessary in self-defence; and (b) the conduct is a reasonable response in the circumstances as the person perceives them. (3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury. 7
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 Notes 1 See section 322M as to belief in circumstances where family violence is alleged. 2 The circumstances in which a person may carry out conduct in self-defence include-- · the defence of the person or another person; · the prevention or termination of the unlawful deprivation of the liberty of the person or another person; · the protection of property. 322L Self-defence does not apply to a response to lawful conduct Section 322K does not apply if-- (a) the person is responding to lawful conduct; and (b) at the time of the person's response, the person knows that the conduct is lawful. 322M Family violence and self-defence (1) Without limiting section 322K, for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person's conduct is necessary in self- defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if-- (a) the person is responding to a harm that is not immediate; or (b) the response involves the use of force in excess of the force involved in the harm or threatened harm. 8
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (2) Without limiting the evidence that may be adduced, in circumstances where self- defence in the context of family violence is in issue, evidence of family violence may be relevant in determining whether-- (a) a person has carried out conduct while believing it to be necessary in self- defence; or (b) the conduct is a reasonable response in the circumstances as a person perceives them. 322N Abolition of self-defence at common law Self-defence at common law is abolished. Division 3--Duress 322O Duress (1) A person is not guilty of an offence in respect of conduct carried out by the person under duress. (2) A person carries out conduct under duress if-- (a) the person reasonably believes that-- (i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and (b) the conduct is a reasonable response to the threat. 9
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (3) A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct. (4) This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury. 322P Family violence and duress Without limiting the evidence that may be adduced, in circumstances where duress in the context of family violence is in issue, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress. 322Q Abolition of duress at common law The defence at common law of duress is abolished. Division 4--Sudden or extraordinary emergency 322R Sudden or extraordinary emergency (1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency. (2) This section applies if-- (a) the person reasonably believes that-- (i) circumstances of sudden or extraordinary emergency exist; and (ii) the conduct is the only reasonable way to deal with the emergency; and 10
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 4 (b) the conduct is a reasonable response to the emergency. (3) This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury. 322S Abolition of necessity at common law The defence at common law of necessity is abolished. Division 5--Intoxication 322T Intoxication (1) In this section-- defence includes self-defence, duress and sudden or extraordinary emergency; intoxication means intoxication because of the influence of alcohol, a drug or any other substance. (2) If any part of a defence to an offence relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated. (3) If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated. (4) If a person's intoxication is not self-induced, in determining whether any part of a defence to an offence relying on reasonable belief or reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. 11
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 5 (5) For the purposes of this section, intoxication is self-induced unless it came about-- (a) involuntarily; or (b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or (c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or (d) from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer. (6) Despite subsection (5), intoxication is self- induced in the circumstances referred to in subsection (5)(c) or (d) if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control. __________________". 5 Amendment of other Acts consequential on repeal of offence of defensive homicide (1) In the Children, Youth and Families Act 2005-- (a) in section 356(1) omit ", defensive homicide"; (b) in section 356(2)(a) omit ", defensive homicide"; (c) in section 356(3) omit ", defensive homicide"; (d) in section 356(4) omit ", defensive homicide"; 12
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 6 (e) in section 516(1)(b) omit ", defensive homicide"; (f) in section 516A(1)(b)(ii) omit ", defensive homicide". (2) In section 25(3)(b)(ii) of the Magistrates' Court Act 1989 omit ", defensive homicide". (3) In the Sentencing Act 1991-- (a) in section 3(1), in the definition of serious offence, paragraph (ba) is repealed; (b) in clause 2 of Schedule 1, paragraph (ba) is repealed. Division 2--Complicity reform 6 New Subdivision (1) of Division 1 of Part II inserted For Subdivisions (1) and (2) of Division 1 of Part II of the Crimes Act 1958 substitute-- "(1) Complicity in commission of offences 323 Interpretation (1) For the purposes of this Subdivision, a person is involved in the commission of an offence if the person-- (a) intentionally assists, encourages or directs the commission of the offence; or (b) intentionally assists, encourages or directs the commission of another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence; or 13
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 6 (c) enters into an agreement, arrangement or understanding with another person to commit the offence; or (d) enters into an agreement, arrangement or understanding with another person to commit another offence where the person was aware that it was probable that the offence charged would be committed in the course of carrying out the other offence. (2) In determining whether a person has encouraged the commission of an offence, it is irrelevant whether or not the person who committed the offence in fact was encouraged to commit the offence. Note A person who committed an offence may include 2 or more persons who entered into an agreement, arrangement or understanding to commit the offence. (3) A person may be involved in the commission of an offence, by act or omission-- (a) even if the person is not physically present when the offence, or an element of the offence, is committed; and (b) whether or not the person realises that the facts constitute an offence. 324 Person involved in commission of offence taken to have committed the offence (1) Subject to subsection (3), if an offence (whether indictable or summary) is committed, a person who is involved in the commission of the offence is taken to have committed the offence and is liable to the maximum penalty for that offence. 14
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 6 (2) Despite subsection (1), a person is not taken to have committed an offence if the person withdraws from the offence. Note The common law recognises that in certain circumstances a person may withdraw from an offence in which the person would otherwise be complicit: for example, White v Ridley [1978] HCA 38; (1978) 140 CLR 342; R v Tietie, Tulele and Bolamatu (1988) 34 A Crim R 438; R v Jensen and Ward [1980] VicRp 24; [1980] VR 194. (3) Nothing in this section imposes liability on a person for an offence that, as a matter of policy, is intended to benefit or protect that person. 324A Other offenders need not be prosecuted or found guilty A person who is involved in the commission of an offence may be found guilty of the offence whether or not any other person is prosecuted for or found guilty of the offence. 324B Offender's role need not be determined A person may be found guilty of an offence by virtue of section 324 if the trier of fact is satisfied that the person is guilty either as the person who committed the offence or as a person involved in the commission of the offence but is unable to determine which applies. 324C Abolition of certain aspects of complicity at common law (1) The law of complicity at common law in relation to aiding, abetting, counselling or procuring the commission of an offence is abolished. 15
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 7 (2) The doctrines at common law of acting in concert, joint criminal enterprise and common purpose (including extended common purpose) are abolished. Note The common law concerning the circumstances in which a person may withdraw from an offence in which the person would otherwise be complicit is not abolished by this section.". 7 Amendments consequential on reform of law of complicity (1) In section 4(4)(c) of the Bail Act 1977, for "any person acting in concert with the accused" substitute "any person who is involved in the commission of the offence". (2) At the foot of section 4(4)(c) of the Bail Act 1977 insert-- "Note Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.". (3) For section 15A(2)(c) of the Crimes Act 1958 substitute-- "(c) the offender entered into an agreement, arrangement or understanding with 2 or more other persons to cause a serious injury; Note See Subdivision (1) (Complicity in commission of offences) of Division 1 of Part II.". (4) For section 15B(2)(c) of the Crimes Act 1958 substitute-- "(c) the offender entered into an agreement, arrangement or understanding with 2 or more other persons to cause a serious injury; 16
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 7 Note See Subdivision (1) (Complicity in commission of offences) of Division 1 of Part II.". (5) Section 317(5) of the Crimes Act 1958 is repealed. (6) For section 321R(2)(a) of the Crimes Act 1958 substitute-- "(a) to be involved in the commission of an indictable offence; or". (7) Section 479B(a) of the Crimes Act 1958 is repealed. (8) Insert the following heading to section 80 of the Drugs, Poisons and Controlled Substances Act 1981-- "Inciting etc.". (9) In section 80(1) and (2) of the Drugs, Poisons and Controlled Substances Act 1981 omit "aids, abets, counsels, procures, solicits or". (10) At the foot of section 80(2) of the Drugs, Poisons and Controlled Substances Act 1981 insert-- "Note Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.". (11) In section 80(5) of the Drugs, Poisons and Controlled Substances Act 1981, after "section" insert "or of being involved in the commission of an offence against any provision referred to in this section". (12) In section 57(2) of the Evidence Act 2008, after "conspiracy" insert "or as part of involvement in the commission of an offence". 17
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 7 (13) In section 125 of the Family Violence Protection Act 2008-- (a) omit "and section 52 of the Magistrates' Court Act 1989"; (b) for "does not aid, abet, counsel or procure" substitute "is not involved in". (14) Section 52 of the Magistrates' Court Act 1989 is repealed. (15) In section 133(7) of the Magistrates' Court Act 1989, for "acting in concert" substitute "involved in the commission of an offence". (16) At the foot of section 133(7) of the Magistrates' Court Act 1989 insert-- "Note Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in commission of offences.". (17) In section 5A(6) of the Sentencing Act 1991, for "an offence of aiding, abetting, counselling or procuring" substitute "being involved in". (18) For section 10(2)(a) of the Sentencing Act 1991 substitute-- "(a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or". (19) The note at the foot of section 10(2)(a) of the Sentencing Act 1991 is repealed. 18
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 2--Amendment of the Crimes Act 1958 s. 8 Division 3--Transitional provision 8 New section 623 inserted At the end of Part 7 of the Crimes Act 1958 insert-- "623 Transitional provision--Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (1) This Act as amended by sections 3 and 4 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to offences alleged to have been committed on or after the commencement of sections 3 and 4 of that Act. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of sections 3 and 4 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, the offence is alleged to have been committed before that commencement. (3) This Act as amended by section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to offences alleged to have been committed on or after the commencement of section 6 of that Act. (4) For the purposes of subsection (3), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, the offence is alleged to have been committed before that commencement.". __________________ 19
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 3--Amendment of the Evidence Act 2008 s. 9 PART 3--AMENDMENT OF THE EVIDENCE ACT 2008 9 General discretion to exclude evidence See: (1) In section 135 of the Evidence Act 2008-- Act No. 47/2008. Reprint No. 1 (a) in paragraph (c), for "time." substitute as at "time; or"; 1 January 2011 (b) after paragraph (c) insert-- and amending "(d) unnecessarily demean the deceased in a Act Nos 29/2011, criminal proceeding for a homicide 52/2012, offence.". 67/2013 and 17/2014. LawToday: (2) At the foot of section 135 of the Evidence Act www. 2008 insert-- legislation. vic.gov.au "Note This section does not limit evidence of family violence that may be adduced under Part IC of the Crimes Act 1958.". 10 New Part 5 inserted in Schedule 2 to the Evidence Act 2008 At the end of Schedule 2 to the Evidence Act 2008 insert-- "PART 5--TRANSITIONAL PROVISION FOR CRIMES AMENDMENT (ABOLITION OF DEFENSIVE HOMICIDE) ACT 2014 22 Transitional--Crimes Amendment (Abolition of Defensive Homicide) Act 2014 This Act as amended by Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Part 3 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into 20
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 3--Amendment of the Evidence Act 2008 s. 10 operation, irrespective of when the offence is alleged to have been committed.". __________________ 21
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 4--Amendment of the Jury Directions Act 2013 s. 11 PART 4--AMENDMENT OF THE JURY DIRECTIONS ACT 2013 11 Part 7 substituted For Part 7 of the Jury Directions Act 2013 substitute-- "PART 7--SELF-DEFENCE OR DURESS IN THE CONTEXT OF FAMILY VIOLENCE 29 Application of Part This Part applies to a criminal proceeding in which self-defence or duress in the context of family violence is in issue. 30 Part 3 does not apply Part 3 does not apply to this Part. 31 Definition In this Part-- family violence has the same meaning as in section 322J(2) of the Crimes Act 1958. 32 Direction on family violence (1) Defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with subsection (6) and all or specified parts of subsection (7). (2) The trial judge must give the jury a requested direction on family violence unless there are good reasons for not doing so. (3) If the accused is unrepresented and does not request a direction on family violence, the trial judge may give the direction in accordance with this section if the trial judge 22
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 4--Amendment of the Jury Directions Act 2013 s. 11 considers that it is in the interests of justice to do so. (4) The trial judge-- (a) must give the direction as soon as practicable after the request is made; and (b) may give the direction before any evidence is adduced in the trial. (5) The trial judge may repeat a direction under this section at any time in the trial. (6) In giving a direction under this section, the trial judge must inform the jury that-- (a) self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and (b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and (c) in the case of self-defence, evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending; and (d) in the case of duress, evidence in the trial is likely to include evidence of family violence committed by another person against the accused or a third person. (7) If defence counsel requests that the direction include any of the following matters, the trial judge, subject to subsection (2), must include those requested matters in the direction-- 23
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 4--Amendment of the Jury Directions Act 2013 s. 11 (a) that family violence-- (i) is not limited to physical abuse and may include sexual abuse and psychological abuse; (ii) may involve intimidation, harassment and threats of abuse; (iii) may consist of a single act; (iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial; (b) if relevant, that experience shows that-- (i) people may react differently to family violence and there is no typical, proper or normal response to family violence; (ii) it is not uncommon for a person who has been subjected to family violence-- (A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner; (B) not to report family violence to police or seek assistance to stop family violence; (iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by-- 24
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 4--Amendment of the Jury Directions Act 2013 s. 12 (A) family violence itself; (B) cultural, social, economic and personal factors; (c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence or under duress (as the case requires) in relation to the offence charged. (8) If the accused is unrepresented, the trial judge may include in the direction any of the matters referred to in subsection (7)(a), (b) or (c). (9) This section does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness. __________________ PART 8--TRANSITIONAL PROVISIONS 33 Transitional provisions The Schedule continues to have effect. __________________". 12 Schedule amended In the Schedule to the Jury Directions Act 2013, after clause 1 insert-- "2 Crimes Amendment (Abolition of Defensive Homicide) Act 2014 This Act as amended by Part 4 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 applies to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Part 4 of 25
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 4--Amendment of the Jury Directions Act 2013 s. 12 the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation.". __________________ 26
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Part 5--Repeal of Amending Act s. 13 PART 5--REPEAL OF AMENDING ACT 13 Repeal of amending Act This Act is repealed on 1 July 2016. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 27
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 No. of 2014 Endnotes ENDNOTES Minister's second reading speech-- Legislative Council: Legislative Assembly: The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958, the Evidence Act 2008 and the Jury Directions Act 2013 to abolish the offence of defensive homicide and to reform the law of complicity and for other purposes." By Authority. Government Printer for the State of Victoria. 28