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Crimes (Homicide) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets 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.
The Bill 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 2 provides that the Act comes into operation on the day after the
day on which it receives the Royal Assent.
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551338 BILL LA INTRODUCTION 4/10/2005
PART 2--AMENDMENT OF THE CRIMES ACT 1958 AND
CONSEQUENTIAL AMENDMENT OF OTHER ACTS
Clause 3 inserts 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 4 inserts 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 5 substitutes 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 6 inserts 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
section 9AJ) 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.
As a 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).
If a 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 1958 inserted by
section 4 of this Act.
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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
(section 9AC) 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
person A is acting lawfully for the purposes of this section.
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If person 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.
New section 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
Victorian law 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.
The word "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
at paragraph 172 and R v. Portelli [2004] VSCA 178 at
paragraph 19) 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".
The definition of "family member" is based in part on the
definition in section 3 of the Crimes (Family Violence) Act
1987.
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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 7 provides for the transitional effect of the changes to the Crimes
Act 1958 made 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 8 amends a series of legislative provisions to add references to the
new offence of "defensive homicide" created by section 9AD in
clause 6.
Clause 9 deletes obsolete references to offences specified in three sections
of the Crimes Act 1958 that have been repealed.
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PART 3--AMENDMENT OF THE CRIMES (MENTAL
IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997
Clause 10 amends 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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