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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes (Homicide) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF THE CRIMES ACT 1958 AND
CONSEQUENTIAL AMENDMENT OF OTHER ACTS 3
3. New section 3B 3
3B. Provocation no longer a partial defence to murder 3
4. New section 4 inserted 3
4. Alternative verdict of defensive homicide on charge for
murder 3
5. Section 6 substituted 4
6. Infanticide 4
6. New Subdivision (1AA) inserted in Division 1 of Part I 5
(1AA) Exceptions to Homicide Offences 5
9AB. Definitions and application of Subdivision 5
9AC. Murder--"self-defence" 5
9AD. Defensive homicide 6
9AE. Manslaughter--"self-defence" 6
9AF. Self-defence exceptions do not apply in the case of
lawful conduct 7
9AG. Duress 7
9AH. Family violence 8
9AI. Sudden or extraordinary emergency 11
9AJ. Intoxication 12
7. New section 603 inserted 13
603. Transitional provision--Crimes (Homicide) Act 2005 13
8. Amendments of Acts consequential on creation of new offence
of defensive homicide 14
9. Statute law revision 15
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551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Clause Page
PART 3--AMENDMENT OF THE CRIMES (MENTAL
IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 16
10. When mental impairment is not in dispute 16
ENDNOTES 17
ii
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the law in relation to homicide offences, to amend the
Crimes Act 1958 and the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 and make consequential
amendments to certain other Acts and for other purposes.
Crimes (Homicide) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to amend the Crimes Act 1958--
(i) to remove provocation as a partial
5
defence to murder; and
1
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 1--Preliminary
s. 2
(ii) to create a new offence of defensive
homicide and revise the offence of
infanticide; and
(iii) to provide expressly for self-defence,
duress, sudden or extraordinary
5
emergency and the relevance of
intoxication in relation to homicide
offences; and
(b) to amend the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 to
10
provide further for the defence of mental
impairment.
2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
15
__________________
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551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 3
of other Acts
See:
PART 2--AMENDMENT OF THE CRIMES ACT 1958 AND Act No.
6231.
CONSEQUENTIAL AMENDMENT OF OTHER ACTS
Reprint No. 18
as at
3. New section 3B 1 July 2005
and
After section 3A of the Crimes Act 1958 insert-- amending
Act Nos
16/2004,
"3B. Provocation no longer a partial defence to
5 18/2005 and
murder 56/2005.
LawToday:
The rule of law that provocation reduces the www.dms.
dpc.vic.
crime of murder to manslaughter is gov.au
abolished.".
4. New section 4 inserted
10
Before section 5 of the Crimes Act 1958 insert--
'4. Alternative verdict of defensive homicide
on charge for murder
(1) If on the trial of a person for murder the jury
are not satisfied that he or she is guilty of
15
murder but are satisfied that he or she is
guilty of an offence against section 9AD
(defensive homicide), the jury may acquit the
accused of murder and find him or her guilty
of defensive homicide and he or she is liable
20
to punishment accordingly.
(2) This section does not restrict the operation of
section 6, 10(3) or 421.
Note: See section 9AC for "self-defence" exception to
25 murder.'.
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Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 5
of other Acts
5. Section 6 substituted
For section 6 of the Crimes Act 1958
substitute--
"6. Infanticide
(1) If a woman carries out conduct that causes
5
the death of her child in circumstances that
would constitute murder and, at the time of
carrying out the conduct, the balance of her
mind was disturbed because of--
(a) her not having fully recovered from the
10
effect of giving birth to that child
within the preceding 2 years; or
(b) a disorder consequent on her giving
birth to that child within the preceding
2 years--
15
she is guilty of infanticide, and not of
murder, and liable to level 6 imprisonment
(5 years maximum).
(2) On an indictment or presentment for murder,
a woman found not guilty of murder may be
20
found guilty of infanticide.
Note: See sections 10(3) and 421 for other alternative
verdicts.
(3) Nothing in this Act affects the power of the
jury on a charge of murder of a child to
25
return a verdict of not guilty because of
mental impairment.".
4
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
6. New Subdivision (1AA) inserted in Division 1 of
Part I
After Subdivision (1) of Division 1 of Part I of the
Crimes Act 1958 insert--
'(1AA) Exceptions to Homicide Offences
5
9AB. Definitions and application of Subdivision
(1) In this Subdivision--
"intoxication" means intoxication because
of the influence of alcohol, a drug or
any other substance;
10
"relevant offence" means murder,
manslaughter or defensive homicide.
(2) Without taking away from the law relating to
any other offences and except as otherwise
expressly provided by this Subdivision, this
15
Subdivision applies only to relevant
offences.
9AC. Murder--"self-defence"
A person is not guilty of murder if he or she
carries out the conduct that would otherwise
20
constitute murder while believing the
conduct to be necessary to defend himself or
herself or another person from the infliction
of death or really serious injury.
25 Note 1: See section 4 for alternative verdict of defensive
homicide where the accused had no reasonable
grounds for the belief.
Note 2: This section does not apply where the response is to
lawful conduct--see section 9AF.
30 Note 3: See section 9AH as to belief in circumstances where
family violence is alleged.
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Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
9AD. Defensive homicide
A person who, by his or her conduct, kills
another person in circumstances that, but for
section 9AC, would constitute murder, is
guilty of an indictable offence (defensive
5
homicide) and liable to level 3 imprisonment
(20 years maximum) if he or she did not
have reasonable grounds for the belief
referred to in that section.
10 Note: See section 9AH as to reasonable grounds for the
belief in circumstances where family violence is
alleged.
9AE. Manslaughter--"self-defence"
A person is not guilty of manslaughter if he
or she carries out the conduct that would
15
otherwise constitute manslaughter while
believing the conduct to be necessary--
(a) to defend himself or herself or another
person; or
(b) to prevent or terminate the unlawful
20
deprivation of his or her liberty or the
liberty of another person--
and he or she had reasonable grounds for that
belief.
25 Note 1: See section 9AH as to reasonable grounds for the
belief in circumstances where family violence is
alleged.
Note 2: This section does not apply where the response is to
lawful conduct--see section 9AF.
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Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
9AF. Self-defence exceptions do not apply in the
case of lawful conduct
Sections 9AC and 9AE do not apply if--
(a) the person is responding to lawful
conduct; and
5
(b) at the time of his or her response, the
person knows that the conduct is
lawful.
9AG. Duress
(1) A person is not guilty of a relevant offence in
10
respect of conduct carried out by him or her
under duress.
(2) A person carries out conduct under duress if
and only if the person reasonably believes
that--
15
(a) subject to sub-section (3), a threat has
been made that will be carried out
unless an offence is committed; and
(b) carrying out the conduct is the only
reasonable way that the threatened
20
harm can be avoided; and
(c) the conduct is a reasonable response to
the threat.
(3) However, a person does not carry out
conduct under duress if the threat is made by
25
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 threat is to inflict death or
30
really serious injury.
Note: See section 9AH for evidentiary provisions where
family violence is alleged.
7
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Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
9AH. Family violence
(1) Without limiting section 9AC, 9AD or 9AE,
for the purposes of murder, defensive
homicide or manslaughter, in circumstances
where family violence is alleged a person
5
may believe, and may have reasonable
grounds for believing, that his or her conduct
is necessary--
(a) to defend himself or herself or another
person; or
10
(b) to prevent or terminate the unlawful
deprivation of his or her liberty or the
liberty of another person--
even if--
(c) he or she is responding to a harm that is
15
not immediate; or
(d) his or her response involves the use of
force in excess of the force involved in
the harm or threatened harm.
(2) Without limiting the evidence that may be
20
adduced, in circumstances where family
violence is alleged evidence of a kind
referred to in sub-section (3) may be relevant
in determining whether--
(a) a person has carried out conduct while
25
believing it to be necessary for a
purpose referred to in sub-section (1)(a)
or (b); or
(b) a person had reasonable grounds for a
belief held by him or her that conduct is
30
necessary for a purpose referred to in
sub-section (1)(a) or (b); or
(c) a person has carried out conduct under
duress.
8
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Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
(3) Evidence of--
(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
5
person towards the family member or
by the family member or the person in
relation to any other family member;
(b) the cumulative effect, including
psychological effect, on the person or a
10
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;
15
(d) the general nature and dynamics of
relationships affected by family
violence, including the possible
consequences of separation from the
abuser;
20
(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
25
on people who are or have been in a
relationship affected by family
violence.
(4) In this section--
"child" means a person who is under the age
30
of 18 years;
"family member", in relation to a person,
includes--
(a) a person who is or has been
married to the person; or
35
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551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
(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-
5
mother of the person; or
(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
10
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;
15
"violence" means--
(a) physical abuse;
(b) sexual abuse;
(c) psychological abuse (which need
not involve actual or threatened
20
physical or sexual abuse),
including but not limited to--
(i) intimidation;
(ii) harassment;
(iii) damage to property;
25
(iv) threats of physical abuse,
sexual abuse or
psychological abuse;
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551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
(v) in relation to a child--
(A) causing or allowing the
child to see or hear the
physical, sexual or
psychological abuse of
5
a person by a family
member; or
(B) putting the child, or
allowing the child to be
put, at real risk of
10
seeing or hearing that
abuse occurring.
(5) Without limiting the definition of "violence"
in sub-section (4)--
(a) a single act may amount to abuse for
15
the purposes of that definition;
(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
20
in isolation, may appear to be minor or
trivial.
9AI. Sudden or extraordinary emergency
(1) A person is not guilty of a relevant offence in
respect of conduct carried out by him or her
25
in response to circumstances of sudden or
extraordinary emergency.
(2) This section applies if and only if the person
carrying out the conduct reasonably believes
that--
30
(a) circumstances of sudden or
extraordinary emergency exist; and
(b) committing the offence is the only
reasonable way to deal with the
emergency; and
35
11
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 6
of other Acts
(c) the conduct is a reasonable response to
the emergency.
(3) This section only applies in the case of
murder if the emergency involves a risk of
death or really serious injury.
5
9AJ. Intoxication
(1) If any part of an element of a relevant
offence, or of a defence to a relevant offence,
relies on reasonable belief, in determining
whether that reasonable belief existed, regard
10
must be had to the standard of a reasonable
person who is not intoxicated.
(2) If any part of an element of a relevant
offence, or of a defence to a relevant offence,
relies on a person having reasonable grounds
15
for a belief, in determining whether those
reasonable grounds existed, regard must be
had to the standard of a reasonable person
who is not intoxicated.
(3) If any part of an element of a relevant
20
offence, or of a defence to a relevant 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.
25
(4) If a person's intoxication is not self-induced,
in determining whether any part of an
element of a relevant offence, or of a defence
to a relevant offence, relying on reasonable
belief, having reasonable grounds for a belief
30
or reasonable response exists, regard must be
had to the standard of a reasonable person
intoxicated to the same extent as the person
concerned.
12
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Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 7
of other Acts
(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,
5
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
10
(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.
15
(6) Despite sub-section (5), intoxication is self-
induced in the circumstances referred to in
sub-section (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
20
would significantly impair the person's
judgment or control.'.
7. New section 603 inserted
After section 602 of the Crimes Act 1958
insert--
25
"603. Transitional provision--Crimes
(Homicide) Act 2005
(1) An amendment of this Act made by section
3, 4, 5 or 6 of the Crimes (Homicide) Act
2005 applies only to offences alleged to have
30
been committed on or after the
commencement of that Act.
13
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 8
of other Acts
(2) For the purposes of sub-section (1) if an
offence is alleged to have been committed
between two dates, one before and one after
the commencement of the Crimes
(Homicide) Act 2005, the offence is alleged
5
to have been committed before that
commencement.".
8. Amendments of Acts consequential on creation of
new offence of defensive homicide
(1) In the Children and Young Persons Act 1989--
10
(a) in section 16(1)(b), after "manslaughter,"
insert "defensive homicide,";
(b) in section 134(1), (2)(a), (3) and (4), after
"manslaughter," insert "defensive
homicide,".
15
(2) In section 17(3)(a)(i) of the Coroners Act 1985,
after "manslaughter," insert "defensive
homicide,".
(3) In the Crimes Act 1958--
(a) in section 9--
20
(i) after "of manslaughter" insert "or of
defensive homicide";
(ii) after "or manslaughter" insert
"or defensive homicide";
(b) in section 423, for "or manslaughter"
25
substitute ", manslaughter or defensive
homicide";
(c) in section 464P(2)(a), for "or manslaughter"
substitute ", manslaughter or defensive
homicide";
30
(d) in section 464ZGA(2)(a), for "or
manslaughter" substitute ", manslaughter or
defensive homicide";
14
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 2--Amendment of the Crimes Act 1958 and Consequential Amendment
s. 9
of other Acts
(e) in Schedule 8, after item 3 insert--
"3A. Defensive homicide.".
(4) In the Sentencing Act 1991--
(a) in section 3(1), in the definition of "serious
offence", after paragraph (b) insert--
5
"(ba) defensive homicide; or";
(b) in clause 2 of Schedule 1, after paragraph (b)
insert--
"(ba) defensive homicide;".
(5) In section 86(1) of the Transport Act 1983, in
10
paragraph (a) of the definition of "level 1
offence", after "(1)" insert ", (1AA)".
9. Statute law revision
In section 336(2) of the Crimes Act 1958, for ",
murder or an offence specified in section 4, 11 or
15
14 of this Act" substitute "or murder".
__________________
15
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
Crimes (Homicide) Act 2005
Act No.
Part 3--Amendment of the Crimes (Mental Impairment and Unfitness to be
s. 10
Tried) Act 1997
See:
PART 3--AMENDMENT OF THE CRIMES (MENTAL
Act No.
65/1997. IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997
Reprint No. 2
as at
10. When mental impairment is not in dispute
1 July 2002
and
(1) In section 21(2)(b) of the Crimes (Mental
amending
Act Nos
Impairment and Unfitness to be Tried)
5 44/2004,
Act 1997, after "(b)" insert "subject to sub-
108/2004,
10/2005 and
section (4),".
18/2005.
LawToday:
(2) After section 21(3) of the Crimes (Mental
www.dms.
dpc.vic. Impairment and Unfitness to be Tried) Act
gov.au
1997 insert--
10
"(4) If a person is charged with an indictable
offence and, before the empanelment of a
jury, the prosecution and the defence agree
that the proposed evidence establishes the
defence of mental impairment, the trial judge
15
may hear the evidence and--
(a) if the trial judge is satisfied that the
evidence establishes the defence of
mental impairment, may direct that a
verdict of not guilty because of mental
20
impairment be recorded; or
(b) if the trial judge is not so satisfied, must
direct that the charge for the offence be
tried by a jury.".
(3) In section 22(2) of the Crimes (Mental
25
Impairment and Unfitness to be Tried) Act
1997, after "impairment" (where first occurring)
insert "and a jury has been empanelled".
16
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Crimes (Homicide) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
17
551338B.I1-4/10/2005 BILL LA INTRODUCTION 4/10/2005
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