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An argument for abolition


Cite as: May 2011 85(5) LIJ, p.28

Removing the law of defensive homicide would better serve the delivery of justice in Victoria.

This article speaks directly to the 2010 review of the offence of defensive homicide recently commenced by the Department of Justice (DoJ).

In response to questions posed in the review’s discussion paper,1I will advance an argument for the abolition of defensive homicide, while considering how its abolition would impact on homicides occurring in the context of family violence and concerns relating to current sentencing practices for the offence.

In the first five years of the offence’s operation there was limited case law to examine, given the significant number of guilty pleas obtained for this offence. As such, my arguments are based on the case information available and the preliminary trends that have begun to emerge.

Key arguments for the abolition of defensive homicide relate to the success of the family violence evidence reforms, the use of the offence in one-off violent confrontations between males, and the problematic over-complication of homicide law since the 2005 reforms.

It is essential to consider whether the seriousness and culpability of these homicides are adequately recognised and addressed through a conviction of defensive homicide.

Given the presence of an intent to kill or cause serious injury in these homicides, it is unclear why these cases warrant a conviction less than murder. As was the case with the previous partial defence of provocation, it becomes important to recognise where a killing has occurred with intent to kill. The varied levels of culpability can then be adequately addressed at sentencing, as is the current model for considering mitigation due to provocation.

While the offence was implemented to provide a safety net for battered women who kill, arguably this is not the appropriate categorisation for this type of killing. It suggests that the offender did not have reasonable grounds for believing that they were defending themselves or another from death or really serious injury.

Homicides occurring in self-defence within the context of family violence do meet the reasonable belief requirement and thus should be adequately dealt with under self-defence laws. A conviction of defensive homicide in these cases sends a problematic message to the community that the actions of such persons were not reasonable.

As reported in the DoJ discussion paper, the new family violence evidence provisions have allowed for evidence of family violence to be better heard within the courts, leading to a greater understanding of family violence by the courts, specifically judge and jury.

Additionally, the legislated removal of the “immediate” requirement in self-defence should increase access to this complete defence for people who commit homicide in this context.

If these amended provisions are adequately and strictly implemented, then genuine cases of self-defence should receive a complete acquittal, and not require a “halfway house” alternative such as defensive homicide.

Also of note are concerns that defensive homicide has over-complicated the law of homicide beyond comprehension for members of the justice system, particularly jury members.

While it is recognised that the Court of Appeal decision in Babic2 has begun to clarify self-defence law, it is recommended that any reform to defensive homicide should prioritise simplifying homicide law.

Without simplification of the law, it is unclear whether juries can adequately comprehend the nuances of this offence and thus whether a jury verdict is based on the elements of the offence as set out by the law or a tendency to compromise to a lesser offence.

Of final concern are current sentencing practices for defensive homicide, which carries a maximum penalty of 20 years imprisonment. Thus far, the head sentences imposed have ranged from 7 to 12 years, arguably not reflective of the maximum penalty available.

This is particularly problematic considering cases have been described at sentencing as a “serious example”3 of the offence and as “near the worst of its type”.4 The head sentences imposed in these cases were nine years and 9.5 years respectively, suggesting that the current sentencing practices are not in line with the maximum penalty for the offence.

If defensive homicide is to be retained, it is essential that future sentencing practices reflect the severity of the offence committed and are more in line with the maximum penalty available.

KATE FITZ-GIBBON is a PhD candidate at Monash University’s Department of Criminology.

1. Department of Justice, Defensive Homicide: Review of the offence of defensive homicide: Discussion paper, 2010, Department of Justice, Victoria.

2. R v Babic [2010] VSCA 198.

3. R v Taiba [2008] VSC 589, per Coghlan J.

4. R v Edwards [2008] VSC 297, per Whelan J.


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