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Crimes Amendment (Abolition of
Defensive Homicide) Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are--
· to amend the Crimes Act 1958 to--
· abolish the offence of defensive homicide;
· provide for self-defence, duress, sudden or
extraordinary emergency and intoxication in
relation to all offences; and
· reform the law in relation to complicity; and
· 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
· 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
· to make consequential and other amendments.
571344 1 BILL LC INTRODUCTION 25/6/2014
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that Part 1 comes into operation on the
day after the day on which the Bill receives the Royal Assent.
Subclause (2) provides that clause 7(17) comes into operation on
the later of the day on which clause 6 comes into operation or the
day on which section 5 of the Sentencing Amendment (Baseline
Sentences) Act 2014 comes into operation.
Subclause (3) provides that the remaining provisions of the Bill
come into operation on a day or days to be proclaimed.
Subclause (4) provides that if a provision referred to in subclause
(3) does not come into operation before 1 July 2015, it comes
into operation on that day.
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Division 1--Self-defence, duress, sudden or extraordinary
emergency and intoxication and abolition of defensive homicide
Clause 3 amends the Crimes Act 1958 to abolish the offence of defensive
homicide and repeal Subdivision (1AA) of Division 1 of Part I
(exceptions to homicide offences).
The offence of defensive homicide is currently contained in
section 9AD of the Crimes Act 1958. Under section 9AD, a
person is guilty of defensive homicide if that person kills another
person in circumstances that would otherwise amount to murder
while believing his or her conduct to be necessary to defend
himself or herself or another person from the infliction of death
or really serious injury, where that person does not have
reasonable grounds for that belief.
Subclause (1) repeals section 4 of the Crimes Act 1958, which
currently provides that, on a trial for murder, a jury may acquit
the accused of murder and find him or her guilty of the offence of
defensive homicide. Together with subclause (3), which repeals
section 9AD, these amendments mean that defensive homicide
will no longer be available as an offence or an alternative verdict
to murder.
Subclause (2) makes consequential amendments to section 9 of
the Crimes Act 1958 in light of the abolition of defensive
homicide.
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Subclause (3) repeals Subdivision (1AA) of Division 1 of Part I
of the Crimes Act 1958. This Subdivision currently contains the
offence of defensive homicide (section 9AD) and other
"exceptions to homicide offences" introduced by the Crimes
(Homicide) Act 2005. These relate to self-defence, duress,
family violence, sudden or extraordinary emergency and
intoxication. New provisions based on these exceptions
(not including defensive homicide) are contained in new Part IC
(see clause 4).
Subclause (4) and subclause (5) make consequential amendments
to section 464P(2)(a) and 464ZGA(2)(a) of the Crimes Act 1958
respectively in light of the abolition of defensive homicide.
Clause 4 inserts a new Part IC into the Crimes Act 1958. Part IC will
replace provisions contained in Subdivision (1AA) of Division 1
of Part I of the Crimes Act 1958 with new provisions on self-
defence, duress, family violence, sudden or extraordinary
emergency and intoxication that will apply to all offences.
This will simplify the current law, under which statutory tests
apply to fatal offences and the common law applies to non-fatal
offences.
New Division 1--General
New section 322G - Application of Part
New section 322G provides that Part IC applies to any offence,
whether the offence is against any enactment or at common law.
This will ensure that there is only one self-defence test applicable
to all offences.
New section 322H - Definitions
New section 322H defines really serious injury to include
serious sexual assault. This term is used in new section 322K
(self-defence), new section 322O (duress) and new section 322R
(sudden or extraordinary emergency). 'Serious sexual assault' is
not defined (e.g. by reference to specific sexual offences such as
rape). Whether or not a sexual assault is serious will be a matter
for the jury (or court) to determine on a case by case basis.
New section 322H also provides that evidence of family violence
has the meaning given in new section 322J. This term is used in
new section 322M (family violence and self-defence) and new
section 322P (family violence and duress).
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New section 322I - Onus of proof
For the avoidance of doubt, new section 322I provides for the
onus of proof applicable to self-defence, duress and sudden or
extraordinary emergency.
New section 322I(1) provides that the accused bears the
evidential onus of raising self-defence, duress or sudden or
extraordinary emergency (as the case may be).
New section 322I(2) provides that, if the accused satisfies the
evidential onus, the prosecution bears the legal onus of
disproving self-defence, duress or sudden or extraordinary
emergency (as the case may be).
This provision is consistent with general common law principles
and adopts recommendations made by the Victorian Law Reform
Commission in its Final Report on Defences to Homicide.
New section 322J - Evidence of family violence
New section 322J provides for a range of evidence that may be
relevant where family violence is alleged. This evidence may be
relevant in determining whether a person acted in self-defence
(new section 322M) or under duress (new section 322P).
This section replicates current section 9AH(3) to (5) of the
Crimes Act 1958.
New section 322J(1) sets out the type of family violence
evidence that may be adduced when an accused is the victim of
prior abuse. This includes--
· the history of the relationship between the person and a
family member;
· the cumulative effect, including psychological effect, on
the person or a family member of that violence;
· social, cultural or economic factors that impact on the
person or a family member who has been affected by
family violence;
· the general nature and dynamics of relationships
affected by family violence, including the possible
consequences of separation from the abuser;
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· the psychological effect of violence on people who are
or have been in a relationship affected by family
violence;
· social or economic factors that impact on people who
are or have been in a relationship affected by family
violence.
The matters in paragraphs (a) to (c) relate to the particular
accused. Such evidence may be given by, for instance--
· the accused
· others who have witnessed the violence or the effects of
it, or
· psychiatrists or psychologists who have undertaken a
psychological assessment of the accused.
In contrast, the matters in paragraphs (d) to (f) concern the
general nature and dynamics of family violence, and factors that
impact on victims of family violence. Such evidence may be
given by people with expertise in family violence, such as social
workers, counsellors and family violence workers or researchers.
New section 322J(2) defines family violence and other
expressions used in the definition of family violence such as
family member and violence. The definition of family violence
is broad and includes physical abuse, sexual abuse and
psychological abuse (which includes intimidation, harassment
and allowing a child to see or hear abuse of others).
This definition of family violence is referred to in new Part 7 of
the Jury Directions Act 2013 which contains new directions on
family violence where self-defence in the context of family
violence is in issue.
New section 322J(3) makes clear that a single act can amount to
abuse for the purposes of the definition of family violence, and
that a number of acts forming a pattern of behaviour may amount
to abuse, even though, when viewed in isolation, those acts may
appear to be minor or trivial.
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New Division 2 - Self-defence
New section 322K - Self-defence
New section 322K provides a new statutory test for self-defence.
Currently, self-defence to murder and manslaughter is contained
in sections 9AC and 9AE of the Crimes Act 1958. In Babic v
The Queen (2010) 28 VR 297, the Court of Appeal held that
these provisions abolished common law self-defence in relation
to murder and manslaughter. Common law self-defence applies
to non-fatal offences (such as causing injury offences).
This means that if an accused is charged with both fatal and non-
fatal offences, the trial judge must give directions on both self-
defence tests, which can be confusing and complex.
To simplify the law, the new statutory test of self-defence will
apply to fatal and non-fatal offences alike. Having only one test
for self-defence will make it easier for judges to explain self-
defence to a jury, and assist the jury in understanding and
applying self-defence.
New section 322K(1) provides that a person is not guilty of an
offence if the person carries out the conduct constituting the
offence in self-defence.
Under new section 322K(2), a person carries out conduct in
self-defence if--
· the person believes that the conduct is necessary in
self-defence; and
· the person's conduct is a reasonable response in the
circumstances as the person perceives them.
The first limb of the new statutory test is based on the language
used by Wilson, Dawson and Toohey JJ in Zecevic v DPP (Vic)
(1987) 162 CLR 645 and captures the broad way in which
common law self-defence works.
The second limb of the new statutory test is based on laws in
other Australian jurisdictions (see, for example, section 418(2)
of the Crimes Act 1900 (NSW)), and was recommended by the
Victorian Law Reform Commission in its Defences to Homicide:
Final Report (2004). This limb differs from the common law,
which focuses on whether the person had "reasonable grounds"
for his or her belief that it was necessary to act in self-defence.
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The common law test for self-defence focuses on whether it is
necessary to act in self-defence, rather than having specific
categories of circumstances in which self-defence may or may
not be raised. 'Self-defence' is a general description that is, in
fact, not limited to the defence of one's self. For example, a
person may act to defend another person from harm, or a person
may take action to stop the unlawful deprivation of their liberty
or even to protect property.
For simplicity, the statutory test does not set out these
circumstances, except in relation to the offence of murder.
Subclause (3) limits self-defence in the case of murder by
requiring a belief by the person that his or her conduct is
necessary to defend the person or another person from the
infliction of death or really serious injury. The purpose of this
limitation (which currently appears in section 9AC of the Crimes
Act 1958) is to ensure that self-defence to murder is only
available in appropriate circumstances.
While self-defence may be relied upon to protect another person
from death or really serious injury, where the person believes that
their conduct is necessary in self-defence, what may be necessary
is limited to defence of one's self or another person, for the
offence of murder.
New section 322L - Self-defence does not apply to a response to
lawful conduct
New section 322L provides that self-defence does not apply if the
person is responding to lawful conduct which the accused person
knows is lawful conduct.
This provision replicates section 9AF of the Crimes Act 1958.
Section 322M - Family violence and self-defence
New section 322M sets out how family violence may be relevant
to self-defence.
New section 322M(1) provides that, without limiting new
section 322K, where self-defence in the context of family
violence is in issue, an accused may be acting in self-defence
even if--
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· he or she is responding to harm that is not immediate; or
· the response involves the use of force in excess of the
force involved in the harm or threatened harm.
This provision is based on current section 9AH(1) of the Crimes
Act 1958, and recognises how family violence may affect how a
person acts in self-defence. For example, a person may act in
self-defence in response to an ongoing threat of violence, rather
than an immediate attack, or when their physically stronger
partner has their guard down.
New section 322M(2) provides that evidence of family violence
may be relevant to determining whether a person has acted in
self-defence. This provision is based on section 9AH(2) of the
Crimes Act 1958. The range of family violence evidence that
may be relevant is set out in new section 322J.
Unlike current section 9AH (which is limited to fatal offences),
new section 322M will apply to any claim of self-defence
(regardless of whether the offence charged is a fatal or non-fatal
offence). For instance, this provision may be relevant if an
accused is charged with a causing injury offence, and claims to
have acted in self-defence in response to family violence.
New section 322N - Abolition of self-defence at common law
New section 322N abolishes self-defence at common law.
This will ensure that there is only one test for self-defence.
This provision avoids the uncertainty which arose about whether
common law self-defence for murder and manslaughter had been
abolished following the introduction of defensive homicide
where no such abolition was expressly provided. This issue was
resolved in Babic v The Queen (2010) 28 VR 297, which held
that common law self-defence in those circumstances had been
abolished.
New Division 3--Duress
New section 322O - Duress
New section 322O provides a new statutory test for duress that
applies to all offences.
New section 322O(1) provides that a person is not guilty of an
offence in respect of conduct carried out under duress.
8
New section 322O(2) provides that a person carries out conduct
in duress if--
· the person reasonably believes that--
· subject to subclause (3), a threat of harm has
been made that will be carried out unless an
offence is committed; and
· carrying out the conduct is the only reasonable
way that the threatened harm can be avoided; and
· the conduct is a reasonable response to the threat.
New section 322O(3) provides that duress will not apply where a
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. This provision is designed to ensure duress cannot be
relied upon by people voluntarily involved in criminal activities.
New section 322O(4) provides that, in the case of murder, new
section 322O requires that the person believe that the relevant
threat is to inflict death or really serious injury. Really serious
injury is defined in new section 322H to include serious sexual
assault. The purpose of this limitation is to ensure that duress is
only relied upon in appropriate circumstances.
New section 322O replicates the substance of current
section 9AG of the Crimes Act 1958, but applies to all offences
(unlike section 9AG which is limited to fatal offences).
However, in contrast to section 9AG, new section 322O makes
clear that the third element of duress (whether the accused's
conduct is a reasonable response to the threat) is objective.
Requiring an accused's conduct to have been an objectively
reasonable response in the circumstances is designed to ensure
that the defence only applies in appropriate cases (i.e. where
there are objectively appropriate reasons to excuse such conduct).
New section 322P - Family violence and duress
New section 322P provides that evidence of family violence
may be relevant to whether a person acted under duress.
This provision is based on current section 9AH(2) of the Crimes
Act 1958.
The range of family violence evidence that may be relevant is set
out in new section 322J.
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New section 322Q - Abolition of duress at common law
New section 322Q abolishes the defence of duress at common
law. This ensures that there is only one test for duress.
New Division 4--Sudden or extraordinary emergency
New section 322R - Sudden or extraordinary emergency
New section 322R provides a new statutory test for sudden or
extraordinary emergency that applies to all offences.
New section 322R(1) provides that a person is not guilty of an
offence in respect of conduct carried out in circumstances of
sudden or extraordinary emergency.
New section 322R(2) provides that the section applies if--
· the person reasonably believes that--
· circumstances of sudden or extraordinary
emergency exist; and
· the conduct is the only reasonable way to deal
with the emergency; and
· the conduct is a reasonable response to the emergency.
Requiring an accused's conduct to have been an objectively
reasonable response in the circumstances is designed to ensure
that the defence only applies in appropriate cases.
New section 322R(3) provides that, in the case of murder, the
section only applies if the person believes that the relevant
emergency involves a risk of death or really serious injury.
Really serious injury is defined in new section 322H to include
serious sexual assault. The purpose of this limitation is to ensure
that sudden or extraordinary emergency is only relied upon in
extreme circumstances.
This provision replicates current section 9AI of the Crimes Act
1958, but will apply to all offences (unlike section 9AI which is
limited to fatal offences). However, in contrast to section 9AI,
new section 322R makes clear that the third element of sudden
or extraordinary emergency (whether the accused's conduct is a
reasonable response to the emergency) is objective. Requiring an
accused's conduct to have been an objectively reasonable
response in the circumstances is designed to ensure that the
10
defence only applies in appropriate cases (where there are
objectively appropriate reasons to excuse such conduct).
New section 322S - Abolition of necessity at common law
New section 322S abolishes the common law defence of
necessity. This will ensure there is only one test for sudden or
extraordinary emergency.
New Division 5--Intoxication
New section 322T - Intoxication
New section 322T sets out how, if at all, a person's intoxication
may be taken into account when assessing "reasonable belief"
and "reasonable response". It distinguishes between intoxication
that is self-induced and intoxication that is not self-induced.
This section is based on current section 9AJ of the Crimes Act
1958.
New section 322T(1) defines defence, for the purpose of new
section 322T, to include self-defence, duress and sudden or
extraordinary emergency. Intoxication is defined to mean
intoxication because of the influence of alcohol, a drug or any
other substance.
New section 322T(2) and (3) provide that if any part of a defence
relies on reasonable belief or reasonable response, in determining
whether a reasonable belief or response (as the case may be)
existed, regard must be had to the standard of a reasonable person
who is not intoxicated.
New section 322T(4) provides that, if intoxication is not self-
induced, in determining whether any part of a defence relying on
reasonable belief or reasonable response exists, regard must be
had to the standard of a reasonable person who is intoxicated to
the same extent as the person concerned.
New section 322T(5) sets out the circumstances in which
intoxication is not self-induced.
New section 322T(6) provides that if a person using a 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,
his or her intoxication is taken to be self-induced.
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New section 322T is limited to assessing reasonableness of belief
and response in a defence (as defined). The common law on
intoxication will continue to apply in relation to other issues,
such as voluntariness and intention.
Clause 5 consequentially amends other Acts by removing references to
defensive homicide (which is abolished by clause 3 of this Bill).
Division 2--Complicity reform
Clause 6 inserts a new Subdivision (1) in Division 1 of Part II of the
Crimes Act 1958, entitled "Complicity in commission of
offences".
This Subdivision will improve the substantive law of complicity
by introducing simpler, internally consistent laws and abolishing
problematic common law rules. These amendments will
facilitate simpler, more understandable jury directions on
complicity. These issues were comprehensively examined in the
"Simplification of Jury Directions Project" report produced by a
team lead by the Honourable Justice Mark Weinberg in August
2012. The Bill draws extensively from the recommendations in
that report to reform the law of complicity.
New section 323(1) provides that a person is involved in the
commission of an offence if the person--
· intentionally assists, encourages or directs the
commission of the offence; or
· 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
· enters into an agreement, arrangement or understanding
with another person to commit the offence; or
· 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.
The concept of "being involved in the commission of an offence"
is used throughout the new Subdivision.
12
New section 323(1)(a) covers the behaviour that would be
covered by aiding, abetting, counselling and procuring at
common law. The reference to "intentionally" is consistent
with the fault element required by Giorgianni v R (1985) 156
CLR 473. That is, the person must have intended to assist etc.
another to commit a particular offence.
New section 323(1)(c) covers group activity that would be
covered by the common law doctrines of acting in concert, joint
criminal enterprise and common purpose.
New section 323(1)(b) and (d) extend paragraphs (a) and (c) by
a form of recklessness. An accused may be liable where the
offence committed differs from the offence that the accused
originally encouraged etc., if the accused foresaw the probability
that the offence would be committed in the course of carrying out
the original offence.
For example, a person (A) will be involved in the commission of
murder if A--
· intentionally encourages another person (B) to commit
murder; or
· intentionally encourages B to break into another
person's (C's) home and assault C, if A is aware that it
was probable that B would murder C when B broke into
C's home to assault C.
New section 323(1)(b) extends liability in relation to aiding,
abetting, counselling and procuring at common law. Currently,
these forms of complicity do not extend to where the accused
foresaw the probability of another offence being committed.
This extension is consistent with general principles of criminal
law liability, and with new section 323(1)(d).
New section 323(1)(d), in conjunction with new section 324C(2),
narrows the current common law. New section 324C(2)
abolishes a number of common law doctrines, including extended
common purpose. Extended common purpose extends liability
for group activity to where the accused foresaw the possibility
that the charged offence would be committed in the course of
carrying out the offence originally planned or contemplated.
Consistent with general principles of criminal law liability, new
section 323(1)(d) extends liability for group activity to where the
13
accused foresees the probability (but not the possibility) that
another offence will be committed.
New section 323(2) provides that in determining whether a
person has encouraged an offence, it is irrelevant whether or not
the person who committed the offence was in fact encouraged to
commit the offence. The absence of a causation requirement will
significantly simplify jury directions in this area.
New section 323(3) provides that a person may be involved in the
commission of an offence, by act or omission, even if the person
is not physically present when the offence, or an element of the
offence, is committed. This is clearer and more consistent than
the common law, which may require physical presence for some
types of complicity but not others.
New section 323(3) also provides, for the avoidance of doubt,
that a person may be involved in the commission of an offence,
by act or omission, whether or not the person realises that the
facts constitute an offence.
New section 324(1) provides that if an offence is committed, a
person involved in the commission of the offence is taken to have
committed the offence. This applies to both summary and
indictable offences. A person who is involved in the commission
of an offence will be liable to the maximum penalty applicable to
the offence the person is taken to have committed.
It is clear that liability is derivative, as an offence has to have
been committed for a person to be complicit in that offence.
However, this does not require any other person to be prosecuted
for, or found guilty of, the offence--see new section 324A.
The common law recognises that a person may, in certain
circumstances, take steps to effectively withdraw from the
commission of an offence. Withdrawing from an offence
involves effectively undoing, or removing the effect of, the
person's prior contribution to the commission of an offence.
For example, a person may effectively countermand his or her
earlier encouragement, or a person may call the police to foil the
commission of an offence.
The common law test may apply differently depending upon
whether a person has aided and abetted, counselled or procured,
or been involved in a joint common enterprise. The greater a
person's involvement in an offence, the more the person will need
14
to do to effectively withdraw from that offence. While new
section 324C abolishes the common law concerning the ways
in which a person may be held to have been complicit in the
commission of an offence, that section does not abolish the
common law concerning withdrawal from an offence.
New section 324(2) recognises that in certain circumstances, a
person who would otherwise be taken to have been involved in
the commission of an offence, may withdraw their involvement
from that offence. The common law will continue to apply to
determine what constitutes an effective withdrawal.
New section 324(3) provides that this section does not impose
liability on a person for an offence that is intended to benefit or
protect that person. This provision is based on terminology used
in section 11.5(4)(b) of the Commonwealth Criminal Code and
recommended by the New South Wales Law Reform
Commission in Complicity (Report No 129) 56. While it is
unlikely that such a person would be prosecuted for an offence,
this exception is appropriate as a matter of policy.
New section 324A provides that 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. As required by new section 324(1), the
prosecution would still have to prove that an offence was in fact
committed.
New section 324B provides that a person may be found guilty of
an offence by virtue of new section 324 if the trier of fact is
satisfied of their guilt 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. This provision is
modelled on section 11.2(7) of the Commonwealth Criminal
Code and the draft provision suggested by the New South Wales
Law Reform Commission in Complicity (Report No 129) 56-7.
New section 324C abolishes certain aspects of complicity at
common law. In particular, it abolishes the common law in
relation to aiding, abetting, counselling or procuring the
commission of an offence, and the doctrines of acting in concert,
joint criminal enterprise and common purpose.
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The note to new section 324C makes clear that this section does
not abolish the common law in relation to the circumstances in
which a person may withdraw from an offence in which the
person would otherwise be complicit.
Clause 7 makes consequential amendments in relation to the reform of the
law of complicity in new Subdivision (1) of Division 1 of Part II
of the Crimes Act 1958.
Subclauses (1) and (2) make consequential amendments to
section 4(4)(c) of the Bail Act 1977 as a result of new
Subdivision (1) of Division 1 of Part II of the Crimes Act 1958.
The amendment replaces the reference to "any person acting in
concert with the accused" with a reference to "any person who is
involved in the commission of the offence", and inserts a note
referring to the new Subdivision.
Subclauses (3) and (4) make consequential amendments to
sections 15A(2)(c) and 15B(2)(c) of the Crimes Act 1958
consistent with the reforms to the law of complicity. The
amendments replace the reference to "joint criminal enterprise"
with references to "entering into an agreement, arrangement or
understanding", and insert notes referring to the new Subdivision.
Subclause (5) repeals section 317(5) of the Crimes Act 1958.
This subsection is replaced by the general complicity provisions
in the new Subdivision.
Subclause (6) amends section 321R(2)(a) of the Crimes Act
1958 to replace the reference to "aid, abet, counsel or procure"
with "be involved in the commission of an offence", consistent
with the general complicity provisions in the new Subdivision.
Subclause (7) repeals section 479B(a) of the Crimes Act 1958.
This paragraph is replaced by the general complicity provisions
to be inserted in the new Subdivision.
Subclauses (8) to (11) amend section 80 of the Drugs, Poisons
and Controlled Substances Act 1981, which deals with aiding,
abetting, counselling, procuring, soliciting or inciting offences
under that Act. The amendments will remove references to
"aiding, abetting, counselling, procuring or soliciting" to the
extent that they are covered by the general complicity provisions
to be inserted in the new Subdivision. The new provisions do not
apply to incitement, and the references to inciting in section 80
are not amended by this Bill.
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Subclause (8) changes the heading to section 80 of the Drugs,
Poisons and Controlled Substances Act 1981 to "Inciting etc.".
Subclause (9) omits the reference in section 80(1) and (2) of the
Drugs, Poisons and Controlled Substances Act 1981 to "aids,
abets, counsels, procures, solicits". These activities will be
covered by new section 323(1)(a) of the Crimes Act 1958.
Section 80(1) and (2), as amended, will only cover inciting
specified offences under the Drugs, Poisons and Controlled
Substances Act 1981. Subclause (10) inserts a note after section
80(2) referring to the new Subdivision.
Section 80(3)(b) of the Drugs, Poisons and Controlled
Substances Act 1981 which relates to a person in Victoria
aiding, abetting, counselling or procuring an offence outside of
Victoria, will not be amended. The general complicity provisions
to be inserted in the Crimes Act 1958 do not apply to persons in
Victoria involved in offences outside Victoria. Section 80(3) will
continue as a stand-alone complicity provision that is not tied to
the general complicity provisions in the new Subdivision.
Subclause (11) inserts in section 80(5) of the Drugs, Poisons and
Controlled Substances Act 1981 a reference to being involved
in the commission of an offence against a provision referred to in
section 80. This ensures that section 80(5) applies where the
person might be considered to be involved in the commission of
the offence under the general complicity provisions in the new
Subdivision.
Subclause (12) makes a consequential amendment to section
57(2) of the Evidence Act 2008 to reflect the complicity
provisions in new Subdivision (1) of Division 1 of Part II of the
Crimes Act 1958. Section 57(2) uses "common purpose"
broadly to include the doctrine of common purpose.
This amendment refers to the new concept of involvement in
the commission of an offence to make it clear that complicity
continues to be included in the broad meaning of "common
purpose" despite new Subdivision (1) of Division 1 of Part II of
the Crimes Act 1958 abolishing the doctrine of common
purpose.
Subclause (13) amends section 125 of the Family Violence
Protection Act 2008 to omit the reference to section 52 of the
Magistrates' Court Act 1989 (which will be repealed by
subclause (14)) and replace the reference to "aid, abet, counsel or
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procure" with a reference to being involved in the commission of
the offence, consistent with the general complicity provisions in
the new Subdivision.
Subclauses (14) to (16) make consequential amendments to the
Magistrates' Court Act 1989 as a result of the new Subdivision.
Subclause (14) repeals section 52 of the Magistrates' Court Act
1989 because it is covered by the new complicity provisions
which will apply to summary and indictable offences.
Subclauses (15) and (16) replace the reference to "acting in
concert" in section 133(7) of the Magistrates' Court Act 1989
with a reference to being involved in the commission of an
offence, and insert a note referring to the new Subdivision
dealing with complicity.
Subclause (17) amends section 5A(6) of the Sentencing Act
1991 by replacing the reference to "an offence of aiding, abetting,
counselling or procuring" the commission of a baseline offence
with "being involved in" the commission of a baseline offence.
Subclauses (18) and (19) amend section 10 of the Sentencing
Act 1991. Subclause (18) replaces the reference to "aids, abets,
counsels or procures" in section 10(2)(a) of the Sentencing Act
1991 with a reference to being involved in the commission of the
offence within the meaning of new section 323(1)(a) or (b) of the
Crimes Act 1958. Subclause (19) repeals the note at the foot of
section 10(2)(a) of the Sentencing Act 1991, which is no longer
necessary given that the section will specifically refer to the
relevant Crimes Act 1958 provisions.
Division 3--Transitional provision
Clause 8 inserts a transitional provision for the changes to the Crimes Act
1958 made by the Bill.
New section 623(1) provides that the amendments made to the
Crimes Act 1958 by clauses 3 and 4 of the Bill only apply to
offences alleged to have been committed on or after the
commencement of those sections.
New section 623(2) provides that, where an offence is alleged to
have been committed between two dates, one before and one
after the commencement of clauses 3 and 4 of the Bill, the
offence is alleged to have been committed before that
commencement.
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New section 623(3) provides that the amendments made to the
Crimes Act 1958 by clause 6 of the Bill only apply to offences
alleged to have been committed on or after the commencement of
that section.
New section 623(4) provides that, where an offence is alleged to
have been committed between two dates, one before and one
after the commencement of clause 6 of the Bill, the offence is
alleged to have been committed before that commencement.
PART 3--AMENDMENT OF THE EVIDENCE ACT 2008
Clause 9 amends the general discretion to exclude evidence in section 135
of the Evidence Act 2008 to empower a court to refuse to admit
evidence where its probative value is substantially outweighed by
the danger that it may unnecessarily demean the deceased in a
criminal proceeding for a homicide offence.
In homicide cases, the absence of the deceased victim in court
makes it easier for attacks to be made about the character of the
deceased, which can lead to a distortion of other evidence
presented to the jury. This has led to "victim blaming" in
homicide trials, which can be highly distressing for the
deceased's family and friends.
This reform addresses this issue by allowing the exclusion of
unnecessarily demeaning evidence about a homicide victim. It is
not intended that evidence which may be demeaning to a
homicide victim be excluded where there is a legitimate forensic
reason for admitting that evidence. Accordingly, the reform will
not prevent an accused from conducting his or her defence by
adducing explanatory and/or contextual evidence.
For the avoidance of doubt, the new note to section 135 will
clarify that this reform is not intended to exclude evidence of
family violence adduced under new Part IC of the Crimes Act
1958.
Clause 10 inserts a transitional provision for the amendments to the
Evidence Act 2008 made by the Bill. The amendments will only
apply to a trial that commences on or after the day on which
Part 3 of the Bill comes into operation, irrespective of when the
offence is alleged to have been committed.
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PART 4--AMENDMENT OF THE JURY DIRECTIONS
ACT 2013
Clause 11 inserts a new Part 7 into the Jury Directions Act 2013 to
introduce new jury directions on family violence to be given
where self-defence or duress in the context of family violence is
in issue.
Research shows that the dynamics of family violence are not well
understood in the community. The new directions are designed
to proactively address any misconceptions jurors may have about
family violence at the start of a trial so that self-defence claims in
such cases can be fairly assessed in context.
New section 29 - Application of Part
New section 29 provides that new Part 7 applies to a criminal
proceeding in which self-defence or duress in the context of
family violence is in issue.
New section 30 - Part 3 does not apply
New section 30 provides that Part 3 does not apply to Part 7.
Part 3 of the Jury Directions Act 2013 provides a framework for
requests for directions after the close of all evidence. In contrast,
the new directions on family violence may be given early in the
trial, even before evidence is adduced. This will ensure any
misconceptions jurors may have in relation to family violence are
addressed at an early stage.
New section 31 - Definition
New section 31 defines family violence in accordance with new
section 322J(2) of the Crimes Act 1958 (see clause 4).
New section 32 - Direction on family violence
New section 32 sets out a framework for requesting and giving
jury directions on family violence.
New section 32(1) provides that 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).
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This provision allows defence counsel to tailor a request for
directions based on the matters in subsection (7) that are relevant
to the accused. Where matters in subsection (7) are not relevant
to an accused's case, the jury will not be assisted by such
information.
New section 32(2) requires the trial judge to give the jury a
requested direction on family violence unless there are good
reasons for not doing so. Like other Parts of the Jury Directions
Act 2013, this provision reflects that defence counsel is best
placed, in the first instance, to determine which directions are
relevant in the particular case. However, the trial judge has the
overriding responsibility for giving directions and if there are
good reasons for not giving the directions, the trial judge will not
do so.
New section 32(3) applies where an accused is unrepresented and
does not request a direction on family violence. In such cases,
the trial judge may give the direction in accordance with this
section if the trial judge considers that it is in the interests of
justice to do so. This provision balances the right of an
unrepresented accused to conduct their own defence with
protections to ensure that the accused is not disadvantaged
because they are not aware that they may request directions on
family violence.
New section 32(4) requires the trial judge to give the requested
direction as soon as practicable after the request is made. For the
avoidance of doubt, this provision makes clear that the direction
may be given before any evidence is adduced in the trial.
This will ensure any misconceptions jurors may have in relation
to family violence are addressed at an early stage.
New section 32(5) provides that the trial judge may repeat a
direction under this section at any time in the trial.
New section 32(6) contains mandatory directions that must be
included in a family violence direction. The trial judge must
inform the jury that--
· self-defence or duress (as the case requires) is, or is
likely to be, in issue in the trial; and
· 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
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· 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
· 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.
New section 32(7) sets out a list of matters that the trial judge
must include in a direction if requested by defence counsel
(subject to subsection (2)).
New section 32(7)(a) provides that family violence--
· is not limited to physical abuse and may include sexual
abuse and psychological abuse;
· may involve intimidation, harassment and threats of
abuse;
· may consist of a single act; and
· 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.
These directions address common misconceptions about the
nature of family violence and reflect the definition of family
violence in new section 322J of the Crimes Act 1958.
New section 32(7)(b) will require the trial judge to direct, in
relevant cases, that experience shows that--
· people may react differently to family violence and
there is no typical, proper or normal response to family
violence;
· it is not uncommon for a person who has been subjected
to family violence--
· to stay with an abusive partner after the onset of
family violence, or to leave and then return to the
partner;
· not to report family violence to police or seek
assistance to stop family violence;
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· decisions made by a person subjected to family violence
about how to address, respond to or avoid family
violence may be influenced by--
· family violence itself;
· cultural, social, economic and personal factors;
Studies shows that many members of the community do not
understand how the dynamics of family violence may impact on
the behaviour of family violence victims, such as why victims of
family violence remain in abusive relationships. These victims
are often perceived to be irrational or unreasonable. However,
research shows that it is not uncommon for victims of family
violence to remain in abusive relationships for a variety of
reasons. These include fear of retaliatory violence, concern for
children, lack of finances, lack of alternative accommodation,
and love for their partner. These new directions are designed to
give jurors a better appreciation of the factors impacting victims
of family violence (see, for example, Victorian Health Promotion
Foundation, National Survey on Community Attitudes to Violence
Against Women 2009: Changing Cultures, Changing Attitudes -
Preventing Violence Against Women, 2010; M A Anderson et al,
' "Why Doesn't She Just Leave?": A Descriptive Study of Victim
Reported Impediments to Her Safety' (2003) 18 Journal of
Family Violence 151; S Meyer, 'Why Women Stay: A
Theoretical Examination of Rational Choice and Moral
Reasoning in the Context of Intimate Partner Violence' (2012) 45
Australian & New Zealand Journal of Criminology 179; O W
Barnett, 'Why Battered Women Do Not Leave, Part 1: External
Inhibiting Factors Within Society' (2000) Trauma, Violence &
Abuse 343).
New section 32(7)(c) provides 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). Whether the
accused was acting in self-defence or under duress must be
determined on a case by case basis.
New section 32(8) provides that if an accused is unrepresented,
the trial judge may include in the direction any of the matters
referred to in subsection (7)(a), (b) or (c). Like new section
32(3), this subsection balances the right of an unrepresented
accused to conduct their own defence with protections to ensure
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that the accused is not disadvantaged because they do not request
relevant directions on family violence.
For the avoidance of doubt, new section 32(9) provides that this
section does not limit any direction that the trial judge may give
the jury in relation to evidence given by an expert witness.
New Part 7 directions are general in nature and are designed to
address general misconceptions about family violence. They will
not prevent expert evidence from being called in relation to the
conduct of the accused in a particular case, or about the dynamics
of family violence generally.
Clause 11 also inserts a new Part 8 in the Jury Directions Act
2013 relating to the transitional provisions set out in the
Schedule.
Clause 12 inserts a transitional provision for the changes to the Jury
Directions Act 2013 made by the Bill. The amendments only
apply to trials that commence on or after the commencement of
Part 4 of the Bill.
PART 5--REPEAL OF AMENDING ACT
Clause 13 provides that the amending Act will be repealed on 1 July 2016.
This repeal does not affect the continuing operation of the
amendments made by the Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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