CRIMES AMENDMENT (ABOLITION OF DEFENSIVE HOMICIDE) BILL 2014

Ms GARRETT (Brunswick) — I am pleased  to rise on behalf of  my electorate to make  a contribution on  the Crimes Amendment (Abolition  of Defensive Homicide) Bill 2014. As previous speakers have stated, Labor does not oppose this bill. As the house is aware, the offence of defensive homicide was introduced in Victoria by the  Crimes  (Homicide) Act 2005  as  a result  of  recommendations following comprehensive analysis by the Victorian Law Reform Commission.

That  act  was  designed to deal  with  the  issue of women  who  feel  they are compelled to act in self-defence when they kill domestic abusers. That situation was not adequately dealt with in the law at the time, and this was an attempt to acknowledge the traumatic and difficult circumstances that sadly many women  and children in this state find themselves in.

Unfortunately,  as   sometimes  happens  when   lawyers  become   involved  with legislation  and the  law, a review of this offence by the Department of Justice showed that the vast  majority of convictions for defensive homicide in Victoria were against  men, many  of whom  did not  have a  family relationship with  the victim, and that it had been used to invoke a lesser  charge for  those individuals. Clearly the legislative framework was not properly addressing the ill it was intended to cure. However, as  the  member  for  Macedon  pointed out — very eloquently and clearly, I thought — the law reform process  is a  journey. The important thing is that proper law reform committees and commissions are in place — and I  note with some disappointment that this  government  abolished  the parliamentary Law Reform  Committee — and  that these institutions  are  available to assess  and analyse and that reviews are undertaken of  how laws are implemented, argued and dealt with through the court system to ensure  that  the intention of Parliament is reflected in practice.

This bill addresses  some of those  issues by abolishing defensive  homicide and removing references to it  from the Crimes Act 1958.  As I said, Labor  does not oppose this approach.

Of note  and import  is that  the bill  defines the  term  ‘family violence’  to include  physical, sexual and  psychological abuse against  a  family member. We know  that  insidious   abuse  can  come  in  many  different  forms   and  that psychological  and sexual abuse  can be just  as  terrifying and distressing  as other  forms of abuse and can in a very serious  manner diminish the capacity of women  and children  to live  their lives  to  the  full,  so  we  applaud  that definition.

Of note  is that  self-defence will  be introduced into the act  as a  statutory defence and that the common-law defence will be  abolished.  It is worth quoting new section 322M, which provides:

  …  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,
  (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.

I  am  sure  the Parliament will keep a  close  eye  on how this new defence  is interpreted and argued and on  the results it delivers to ensure once again that the  intention of  the Parliament and the will  of the  people are  reflected in practice.

The  bill  also  introduces duress  as  a statutory  defence  and  abolishes the common-law defence of duress. New section 322P provides:

  …  evidence of family  violence  may be  relevant  in determining whether  a  person has carried out conduct under duress.

There are  a range  of provisions in the bill that relate to issues  surrounding sudden and extraordinary emergencies. New section 322R provides:

  A person is not guilty of an offence in respect of conduct that is carried out  in circumstances of sudden or extraordinary emergency.

That applies if there is reasonable belief  and the  like in  relation to those. Although  it is  not defined  further in the  act, it  is applicable  in similar circumstances to the  common-law  defence  of  necessity, which this effectively replaces.

The bill  contains  provisions  relating  to intoxication, reasonable belief and reasonable response,  and it introduces  new laws around  complicity in criminal offences  relating  to  intentionally assisting,  encouraging  or directing  the commission of an offence or intentionally  assisting,  encouraging  or directing 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. There are a range of provisions relating to entering into agreements for the commission of offences.

The bill adds general  discretion  that will allow the court to exclude evidence where the court believes the probative  value  of that evidence is outweighed by the likelihood that  it  will unnecessarily demean  the  deceased in a  criminal proceeding for  a  homicide  offence,  and  Labor  thinks that  is  particularly important.  The bill creates new  jury directions in  criminal proceedings where there is self-defence or duress in situations of family violence.

The judge may, at his or her discretion, bring certain facts about that violence to the jury’s attention.

It  is clear that family  violence  is a huge issue  in Victoria; it is claiming lives on  a weekly basis. It is destroying the  health, wellbeing  and sense  of security of thousands upon thousands of women and children in the inner city, in the outer suburbs, in the regions, in every  socio-economic  band  and  in every walk  of  life.  In  a national emergency such as this, we as  parliamentarians, being charged with a very  serious  and solemn responsibility, must respond in a manner that befits the scale of the problem.

If we  are successful in November, the commitment of Labor and the Leader of the Opposition to implementing  a royal commission into  family violence to  look at all facets  of how we have previously dealt with this growing  epidemic —  from our  law  reform  responses,  to  service delivery,  to  police  resourcing  and responses, to community engagement and the like — is absolutely critical. We note  that groups that represent those who have suffered family violence have been calling for this and  that piecemeal approaches, doing what  has always been done,  bandaiding issues and driving them underground have not worked and are not working because the problem is growing and the number  of victims is growing.

It is completely unacceptable that on any given day  or night such a large group of Victorians do not feel that their home is in any way a sanctuary. They do not feel safe  in  their homes; in fact they feel quite  the opposite. The home is a place of terror, of torture and of fear. As for the innocent  children involved, one  can only stand here in horror at the thought of those small people going to bed every night in such horrific circumstances.

Labor does not oppose this legislation.

We welcome the law evolving and we welcome Parliament responding to  issues that have  arisen, but we do note that this issue requires a comprehensive  approach, not just a legislative  approach. It requires  a  resource approach, a  cultural change approach and a law enforcement  approach  that addresses the heart of the issue — not just window-dressing.

Hansard, 3 September 2014