Under defensive homicide in the crimes act (2005), 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 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.
Explain the law of self defence in relation to homicide cases The law of self defence in relation to homicide case are that a person is not guilty of murder if he or she carries out the conduct that would otherwise 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.
In regard to an Alternative verdict of defensive homicide on charge for murder, If on the trial of a person for murder the jury are not satisfied that he or she is guilty of 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 to punishment accordingly.
The reasons why the defence of provocation was abolished in Victoria in 2005. The reason as to why the defense of provocation was abolished in Victoria in 2005 was because it was a recommendation by the Victorian Law Reform Commission in a review of defenses to homicide. Reasons as to why it was in review in the first place was because it promoted a culture of blaming the victim and had no place in a modern society, also it had served to excuse male violence against women.
Provocation was abolished because the Victorian legislature believed it was outdated and no longer reflected the norms of modern society. Specifically, it was no longer appropriate for the criminal law to have a defense available that for all intents and purposes condoned male violence against women and blamed the female victim for her own fate. Other reason as why it was abolished was that it shouldn’t be used for an individual loss of self-control is an inappropriate basis for a partial efence—people should be able to control their impulses, even when angry, gender biased, privileges a loss of self-control as a basis for a defence, the test for provocation is conceptually confused, complex and difficult for juries to understand and apply, is an anomaly—it is not a defence to any crime other than murder and is an anachronism—as we no longer have a mandatory sentence for murder, provocation should be taken into account at sentencing as it is for all other offences.
Do you believe the objectives of the Government when it introduced this crime have been subsequently achieved in court cases? Fact: the majority of men convicted of defensive homicide have been males killing other men). Refer to TWO (2) Victorian cases which have applied the offence of defensive homicide. I do not believe that the objectives of the government when it introduced this crime haven been subsequently achieved in court cases. The government introduce this law with the intention to be a reform of the law when someone had a genuine motivation of self-defence but the change to the law has failed to work as intended and instead appears to be being used by offenders to escape full responsibility where they deserve to be convicted of murder.
The law of Defensive homicide is intended to be applied in cases where people kill to defend themselves or others – such as victims of prolonged domestic violence. Instead males are killing other males and are using the defence homicide charge to get a lower sentence. One case is R v Smith  VSC 87 (1 April 2008), the victim and the offender had a conflict at a party that they both attended, the victim left then returned in aggressive state. A Fight ensued and the offender stabbed the victim.
The Victim was also using a knife against the offender. Mr Smith pleaded guilty to defensive homicide and was sentenced to 7 years imprisonment and non-parole of 5 years. The other case is R v Edwards  VSC 297 (13 August 2008), the victim initially threatened to hit the offender with a table leg. The offender grabbed the table leg and hit the victim in the head also used glass bottles as well. The Attack continued after victim was unconscious and occurred in presence of offender’s son and victim’s partner.
Mr Edwards pleaded guilty to defensive homicide and was sentenced to 9. 5 years imprisonment and non-parole of 7. 5 years. Describe some criticisms that have been made of defensive homicide. Some criticisms that could be made against defensive homicide could be that defensive homicide is being misused on the basis that it has been used almost exclusively by men who kill other men, and not for those for whom it was intended. Defensive homicide was introduced as a ‘safety net’ for women who kill their violent abusers once provocation was abolished.
The law is meant to protect battered women being abused by brutal men. Defensive homicide applies when an accused believed – although unreasonably – that they needed to defend themselves or another person using force, and this resulted in the victim’s death. The offence may therefore be proved when a victim has behaved in a way, such as committing or threatening to commit an act of violence, which led the offender to unreasonably believe that lethal violence was necessary to defend themselves.
However, in six of the 16 guilty plea convictions, it appears there was no prior violent exchange (physical or verbal) between the victim and offender. So they are using this defense but in the outline of defensive homicide it states that when a person kills another while believing the conduct was necessary to defend themselves or another from death or really serious injury where they did not have reasonable grounds for this belief, but they aren’t having to show that they were in fright of their life.
Also not having to go to court and pleading out the case is another criticism, so for an accused to plead guilty to defensive homicide, the prosecution must agree to withdraw any other homicide-related charges, including murder. The decision to enter and accept a guilty plea has been made by the prosecution and the accused only. As a consequence, the public is left to trust that these parties have upheld the same judicial principles that would apply to a conviction after trial.
Your reflections on whether or not defensive homicide should be abolished and whether you believe further reform is needed in this area I don’t believe that defensive homicide should be abolished because if it was to be abolished would the law adapt and deal with cases that have a long term family violence which this law was attended to apply to. Maybe defensive homicide should only be limited to serious family violence. The law is there for a safety net for women who kill violent partners who have been violently abusing their spouse for an extend period of time and not for males to kill other males.
One in five Victorian women report being physically or sexually abused by an intimate partner at some time in their life and if the law was to be abolished maybe the victims would feel as if no one understands what they are going thru or care to. And by doing that more women might stay in a violent relationship and more women might end up dying. The law of defensive homicide needs to be reform if it is to be kept because it has become a blur so to speak, it has failed to realise its intended purpose.
Courtney from Study Moose
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