Crimes Amendment (Abolition of Defensive Homicide) Act 2014
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Crimes Amendment (Abolition of Defensive
Homicide) Act 2014
No. 63 of 2014
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
PART 2—AMENDMENT OF THE CRIMES ACT 1958 3
Division 1—Self-defence, duress, sudden or extraordinary
emergency and intoxication and abolition of defensive homicide 3
3 Abolition of offence of defensive homicide and repeal of
exceptions to homicide offences 3
4 New Part IC inserted 3
PART IC—SELF-DEFENCE, DURESS, SUDDEN
OR EXTRAORDINARY EMERGENCY AND
INTOXICATION 3
Division 1—General 3
322G Application of Part 3
322H Definitions 4
322I Onus of proof 4
322J Evidence of family violence 4
Division 2—Self-defence 7
322K Self-defence 7
322L Self-defence does not apply to a response to lawful
conduct 8
322M Family violence and self-defence 8
322N Abolition of self-defence at common law 9
Division 3—Duress 9
322O Duress 9
322P Family violence and duress 10
322Q Abolition of duress at common law 10
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Division 4—Sudden or extraordinary emergency 10
322R Sudden or extraordinary emergency 10
322S Abolition of necessity at common law 11
Division 5—Intoxication 11
322T Intoxication 11
5 Amendment of other Acts consequential on repeal of offence
of defensive homicide 12
Division 2—Complicity reform 13
6 New Subdivision (1) of Division 1 of Part II inserted 13
(1) Complicity in commission of offences 13
323 Interpretation 13
324 Person involved in commission of offence taken to
have committed the offence 14
324A Other offenders need not be prosecuted or found
guilty 15
324B Offender's role need not be determined 15
324C Abolition of certain aspects of complicity at common
law 15
7 Amendments consequential on reform of law of complicity 16
Division 3—Transitional provision 19
8 New section 623 inserted 19
623 Transitional provision—Crimes Amendment
(Abolition of Defensive Homicide) Act 2014 19
PART 3—AMENDMENT OF THE EVIDENCE ACT 2008 20
9 General discretion to exclude evidence 20
10 New Part 5 inserted in Schedule 2 to the Evidence Act 2008 20
PART 5—TRANSITIONAL PROVISION FOR CRIMES
AMENDMENT (ABOLITION OF DEFENSIVE
HOMICIDE) ACT 2014 20
22 Transitional—Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 20
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Section Page
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PART 4—AMENDMENT OF THE JURY DIRECTIONS
ACT 2013 22
11 Part 7 substituted 22
PART 7—SELF-DEFENCE OR DURESS IN THE
CONTEXT OF FAMILY VIOLENCE 22
29 Application of Part 22
30 Part 3 does not apply 22
31 Definition 22
32 Direction on family violence 22
PART 8—TRANSITIONAL PROVISIONS 25
33 Transitional provisions 25
12 Schedule amended 25
2 Crimes Amendment (Abolition of Defensive
Homicide) Act 2014 25
PART 5—REPEAL OF AMENDING ACT 27
13 Repeal of amending Act 27
═══════════════
ENDNOTES 28
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 †
No. 63 of 2014
[Assented to 9 September 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The purposes of this Act are—
(a) to amend the Crimes Act 1958—
(i) to abolish the offence of defensive
homicide and to provide for self-
defence, duress, sudden or
extraordinary emergency and
Victoria
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Part 1—Preliminary
Crimes Amendment (Abolition of Defensive Homicide) Act 2014
No. 63 of 2014
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intoxication in relation to all offences;
and
(ii) to reform the law in relation to
complicity; and
(b) 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
(c) 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
(d) to make consequential and other
amendments.
2 Commencement
(1) This Part comes into operation on the day after the
day on which this Act receives the Royal Assent.
(2) Section 7(17) comes into operation on the later
of—
(a) the day on which section 6 comes into
operation; or
(b) the day on which section 5 of the Sentencing
Amendment (Baseline Sentences) Act 2014
comes into operation.
(3) Subject to subsection (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(4) If a provision referred to in subsection (3) does
not come into operation before 1 July 2015, it
comes into operation on that day.
__________________
s. 2
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PART 2—AMENDMENT OF THE CRIMES ACT 1958
Division 1—Self-defence, duress, sudden or extraordinary
emergency and intoxication and abolition of defensive
homicide
3 Abolition of offence of defensive homicide and
repeal of exceptions to homicide offences
(1) Section 4 of the Crimes Act 1958 and the note at
the foot of that section are repealed.
(2) In section 9 of the Crimes Act 1958—
(a) omit "or of defensive homicide";
(b) omit "or defensive homicide".
(3) Subdivision (1AA) of Division 1 of Part I of the
Crimes Act 1958 is repealed.
(4) In section 464P(2)(a) of the Crimes Act 1958, for
"manslaughter, child homicide or defensive
homicide" substitute "manslaughter or child
homicide".
(5) In section 464ZGA(2)(a) of the Crimes Act 1958,
for "manslaughter, child homicide or defensive
homicide" substitute "manslaughter or child
homicide".
4 New Part IC inserted
After Part IB of the Crimes Act 1958 insert—
"PART IC—SELF-DEFENCE, DURESS, SUDDEN
OR EXTRAORDINARY EMERGENCY AND
INTOXICATION
Division 1—General
322G Application of Part
This Part applies to any offence, whether
against any enactment or at common law.
s. 3
See:
Act No.
6231.
Reprint No. 24
as at
1 July 2013
and
amending
Act Nos
16/2004,
27/2011,
20/2013,
60/2013,
70/2013,
72/2013,
77/2013,
7/2014, 8/2014,
17/2014,
25/2014,
26/2014,
36/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
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322H Definitions
In this Part—
evidence of family violence has the meaning
given in section 322J;
really serious injury includes serious sexual
assault.
322I Onus of proof
(1) The accused has the evidential onus of
raising self-defence, duress or sudden or
extraordinary emergency by presenting or
pointing to evidence that suggests a
reasonable possibility of the existence of
facts that, if they existed, would establish
self-defence, duress or sudden or
extraordinary emergency (as the case may
be).
(2) If the accused satisfies the evidential onus
referred to in subsection (1), the prosecution
has the legal onus of proving beyond
reasonable doubt that the accused did not
carry out the conduct in self-defence, under
duress or in circumstances of sudden or
extraordinary emergency (as the case may
be).
322J Evidence of family violence
(1) Evidence of family violence, in relation to a
person, includes evidence of any of the
following—
(a) the history of the relationship between
the person and a family member,
including violence by the family
member towards the person or by the
person towards the family member or
by the family member or the person in
relation to any other family member;
s. 4
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(b) the cumulative effect, including
psychological effect, on the person or a
family member of that violence;
(c) social, cultural or economic factors that
impact on the person or a family
member who has been affected by
family violence;
(d) the general nature and dynamics of
relationships affected by family
violence, including the possible
consequences of separation from the
abuser;
(e) the psychological effect of violence on
people who are or have been in a
relationship affected by family
violence;
(f) social or economic factors that impact
on people who are or have been in a
relationship affected by family
violence.
(2) In this section—
child means a person who is under the age of
18 years;
family member, in relation to a person,
includes—
(a) a person who is or has been
married to the person; or
(b) a person who has or has had an
intimate personal relationship with
the person; or
(c) a person who is or has been the
father, mother, step-father or step-
mother of the person; or
s. 4
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(d) a child who normally or regularly
resides with the person; or
(e) a guardian of the person; or
(f) another person who is or has been
ordinarily a member of the
household of the person;
family violence, in relation to a person,
means violence against that person by a
family member;
violence means—
(a) physical abuse; or
(b) sexual abuse; or
(c) psychological abuse (which need
not involve actual or threatened
physical or sexual abuse),
including but not limited to the
following—
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse,
sexual abuse or
psychological abuse;
(v) in relation to a child—
(A) causing or allowing the
child to see or hear the
physical, sexual or
psychological abuse of
a person by a family
member; or
s. 4
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(B) putting the child, or
allowing the child to be
put, at real risk of
seeing or hearing that
abuse occurring.
(3) Without limiting the definition of violence in
subsection (2)—
(a) a single act may amount to abuse for
the purposes of that definition; and
(b) a number of acts that form part of a
pattern of behaviour may amount to
abuse for that purpose, even though
some or all of those acts, when viewed
in isolation, may appear to be minor or
trivial.
Division 2—Self-defence
322K Self-defence
(1) A person is not guilty of an offence if the
person carries out the conduct constituting
the offence in self-defence.
(2) A person carries out conduct in self-defence
if—
(a) the person believes that the conduct is
necessary in self-defence; and
(b) the conduct is a reasonable response in
the circumstances as the person
perceives them.
(3) This section only applies in the case of
murder if the person believes that the
conduct is necessary to defend the person or
another person from the infliction of death or
really serious injury.
s. 4
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Notes
1 See section 322M as to belief in circumstances where
family violence is alleged.
2 The circumstances in which a person may carry out
conduct in self-defence include—
• the defence of the person or another person;
• the prevention or termination of the unlawful
deprivation of the liberty of the person or another
person;
• the protection of property.
322L Self-defence does not apply to a response
to lawful conduct
Section 322K does not apply if—
(a) the person is responding to lawful
conduct; and
(b) at the time of the person's response, the
person knows that the conduct is
lawful.
322M Family violence and self-defence
(1) Without limiting section 322K, for the
purposes of an offence in circumstances
where self-defence in the context of family
violence is in issue, 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, even if—
(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.
s. 4
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(2) Without limiting the evidence that may be
adduced, in circumstances where self-
defence in the context of family violence is
in issue, evidence of family violence may be
relevant in determining whether—
(a) a person has carried out conduct while
believing it to be necessary in self-
defence; or
(b) the conduct is a reasonable response in
the circumstances as a person perceives
them.
322N Abolition of self-defence at common law
Self-defence at common law is abolished.
Division 3—Duress
322O Duress
(1) A person is not guilty of an offence in
respect of conduct carried out by the person
under duress.
(2) A person carries out conduct under duress
if—
(a) the person reasonably believes that—
(i) subject to subsection (3), a threat
of harm has been made that will
be carried out unless an offence is
committed; and
(ii) carrying out the conduct is the
only reasonable way that the
threatened harm can be avoided;
and
(b) the conduct is a reasonable response to
the threat.
s. 4
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(3) A person does not carry out conduct under
duress if the 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.
(4) This section only applies in the case of
murder if the person believes that the threat
is to inflict death or really serious injury.
322P Family violence and duress
Without limiting the evidence that may be
adduced, in circumstances where duress in
the context of family violence is in issue,
evidence of family violence may be relevant
in determining whether a person has carried
out conduct under duress.
322Q Abolition of duress at common law
The defence at common law of duress is
abolished.
Division 4—Sudden or extraordinary
emergency
322R Sudden or extraordinary emergency
(1) A person is not guilty of an offence in
respect of conduct that is carried out in
circumstances of sudden or extraordinary
emergency.
(2) This section applies if—
(a) the person reasonably believes that—
(i) circumstances of sudden or
extraordinary emergency exist;
and
(ii) the conduct is the only reasonable
way to deal with the emergency;
and
s. 4
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(b) the conduct is a reasonable response to
the emergency.
(3) This section only applies in the case of
murder if the person believes that the
emergency involves a risk of death or really
serious injury.
322S Abolition of necessity at common law
The defence at common law of necessity is
abolished.
Division 5—Intoxication
322T Intoxication
(1) In this section—
defence includes self-defence, duress and
sudden or extraordinary emergency;
intoxication means intoxication because of
the influence of alcohol, a drug or any
other substance.
(2) If any part of a defence to an offence relies
on reasonable belief, in determining whether
that reasonable belief existed, regard must be
had to the standard of a reasonable person
who is not intoxicated.
(3) If any part of a defence to an offence relies
on reasonable response, in determining
whether that response was reasonable, regard
must be had to the standard of a reasonable
person who is not intoxicated.
(4) If a person's intoxication is not self-induced,
in determining whether any part of a defence
to an offence relying on reasonable belief or
reasonable response exists, regard must be
had to the standard of a reasonable person
intoxicated to the same extent as the person
concerned.
s. 4
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(5) For the purposes of this section, intoxication
is self-induced unless it came about—
(a) involuntarily; or
(b) because of fraud, sudden or
extraordinary emergency, accident,
reasonable mistake, duress or force; or
(c) from the use of a drug for which a
prescription is required and that was
used in accordance with the directions
of the person who prescribed it; or
(d) from the use of a drug for which no
prescription is required and that was
used for a purpose, and in accordance
with the dosage level, recommended by
the manufacturer.
(6) Despite subsection (5), intoxication is self-
induced in the circumstances referred to in
subsection (5)(c) or (d) if the person using
the 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.
__________________".
5 Amendment of other Acts consequential on repeal of
offence of defensive homicide
(1) In the Children, Youth and Families Act 2005—
(a) in section 356(1) omit ", defensive
homicide";
(b) in section 356(2)(a) omit ", defensive
homicide";
(c) in section 356(3) omit ", defensive
homicide";
(d) in section 356(4) omit ", defensive
homicide";
s. 5
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(e) in section 516(1)(b) omit ", defensive
homicide";
(f) in section 516A(1)(b)(ii) omit ", defensive
homicide".
(2) In section 25(3)(b)(ii) of the Magistrates' Court
Act 1989 omit ", defensive homicide".
(3) In the Sentencing Act 1991—
(a) in section 3(1), in the definition of serious
offence, paragraph (ba) is repealed;
(b) in clause 2 of Schedule 1, paragraph (ba) is
repealed.
Division 2—Complicity reform
6 New Subdivision (1) of Division 1 of Part II inserted
For Subdivisions (1) and (2) of Division 1 of
Part II of the Crimes Act 1958 substitute—
"(1) Complicity in commission of offences
323 Interpretation
(1) For the purposes of this Subdivision, a
person is involved in the commission of an
offence if the person—
(a) intentionally assists, encourages or
directs the commission of the offence;
or
(b) 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
s. 6
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(c) enters into an agreement, arrangement
or understanding with another person to
commit the offence; or
(d) 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.
(2) In determining whether a person has
encouraged the commission of an offence, it
is irrelevant whether or not the person who
committed the offence in fact was
encouraged to commit the offence.
Note
A person who committed an offence may include 2 or
more persons who entered into an agreement,
arrangement or understanding to commit the offence.
(3) A person may be involved in the commission
of an offence, by act or omission—
(a) even if the person is not physically
present when the offence, or an element
of the offence, is committed; and
(b) whether or not the person realises that
the facts constitute an offence.
324 Person involved in commission of offence
taken to have committed the offence
(1) Subject to subsection (3), if an offence
(whether indictable or summary) is
committed, a person who is involved in the
commission of the offence is taken to have
committed the offence and is liable to the
maximum penalty for that offence.
s. 6
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(2) Despite subsection (1), a person is not taken
to have committed an offence if the person
withdraws from the offence.
Note
The common law recognises that in certain
circumstances a person may withdraw from an
offence in which the person would otherwise be
complicit: for example, White v Ridley [1978] HCA
38; (1978) 140 CLR 342; R v Tietie, Tulele and
Bolamatu (1988) 34 A Crim R 438; R v Jensen and
Ward [1980] VicRp 24; [1980] VR 194.
(3) Nothing in this section imposes liability on a
person for an offence that, as a matter of
policy, is intended to benefit or protect that
person.
324A Other offenders need not be prosecuted or
found guilty
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.
324B Offender's role need not be determined
A person may be found guilty of an offence
by virtue of section 324 if the trier of fact is
satisfied that the person is guilty 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.
324C Abolition of certain aspects of complicity
at common law
(1) The law of complicity at common law in
relation to aiding, abetting, counselling or
procuring the commission of an offence is
abolished.
s. 6
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(2) The doctrines at common law of acting in
concert, joint criminal enterprise and
common purpose (including extended
common purpose) are abolished.
Note
The common law concerning the circumstances in which a
person may withdraw from an offence in which the person
would otherwise be complicit is not abolished by this
section.".
7 Amendments consequential on reform of law of
complicity
(1) In section 4(4)(c) of the Bail Act 1977, for
"any person acting in concert with the accused"
substitute "any person who is involved in the
commission of the offence".
(2) At the foot of section 4(4)(c) of the Bail Act 1977
insert—
"Note
Subdivision (1) of Division 1 of Part II of the Crimes Act
1958 deals with complicity in commission of offences.".
(3) For section 15A(2)(c) of the Crimes Act 1958
substitute—
"(c) the offender entered into an agreement,
arrangement or understanding with 2 or more
other persons to cause a serious injury;
Note
See Subdivision (1) (Complicity in commission of
offences) of Division 1 of Part II.".
(4) For section 15B(2)(c) of the Crimes Act 1958
substitute—
"(c) the offender entered into an agreement,
arrangement or understanding with 2 or more
other persons to cause a serious injury;
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Note
See Subdivision (1) (Complicity in commission of
offences) of Division 1 of Part II.".
(5) Section 317(5) of the Crimes Act 1958 is
repealed.
(6) For section 321R(2)(a) of the Crimes Act 1958
substitute—
"(a) to be involved in the commission of an
indictable offence; or".
(7) Section 479B(a) of the Crimes Act 1958 is
repealed.
(8) Insert the following heading to section 80 of the
Drugs, Poisons and Controlled Substances Act
1981—
"Inciting etc.".
(9) In section 80(1) and (2) of the Drugs, Poisons
and Controlled Substances Act 1981 omit "aids,
abets, counsels, procures, solicits or".
(10) At the foot of section 80(2) of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"Note
Subdivision (1) of Division 1 of Part II of the Crimes Act
1958 deals with complicity in commission of offences.".
(11) In section 80(5) of the Drugs, Poisons and
Controlled Substances Act 1981, after "section"
insert "or of being involved in the commission of
an offence against any provision referred to in this
section".
(12) In section 57(2) of the Evidence Act 2008, after
"conspiracy" insert "or as part of involvement in
the commission of an offence".
s. 7
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(13) In section 125 of the Family Violence Protection
Act 2008—
(a) omit "and section 52 of the Magistrates'
Court Act 1989";
(b) for "does not aid, abet, counsel or procure"
substitute "is not involved in".
(14) Section 52 of the Magistrates' Court Act 1989 is
repealed.
(15) In section 133(7) of the Magistrates' Court Act
1989, for "acting in concert" substitute "involved
in the commission of an offence".
(16) At the foot of section 133(7) of the Magistrates'
Court Act 1989 insert—
"Note
Subdivision (1) of Division 1 of Part II of the Crimes Act
1958 deals with complicity in commission of offences.".
(17) In section 5A(6) of the Sentencing Act 1991, for
"an offence of aiding, abetting, counselling or
procuring" substitute "being involved in".
(18) For section 10(2)(a) of the Sentencing Act 1991
substitute—
"(a) a person who is involved in the commission
of the offence within the meaning of section
323(1)(a) or (b) of the Crimes Act 1958;
or".
(19) The note at the foot of section 10(2)(a) of the
Sentencing Act 1991 is repealed.
s. 7
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Division 3—Transitional provision
8 New section 623 inserted
At the end of Part 7 of the Crimes Act 1958
insert—
"623 Transitional provision—Crimes
Amendment (Abolition of Defensive
Homicide) Act 2014
(1) This Act as amended by sections 3 and 4 of
the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 applies to
offences alleged to have been committed on
or after the commencement of sections 3
and 4 of that Act.
(2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between 2 dates, one before and one after the
commencement of sections 3 and 4 of the
Crimes Amendment (Abolition of
Defensive Homicide) Act 2014, the offence
is alleged to have been committed before that
commencement.
(3) This Act as amended by section 6 of the
Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 applies to
offences alleged to have been committed on
or after the commencement of section 6 of
that Act.
(4) For the purposes of subsection (3), if an
offence is alleged to have been committed
between 2 dates, one before and one after the
commencement of section 6 of the Crimes
Amendment (Abolition of Defensive
Homicide) Act 2014, the offence is alleged
to have been committed before that
commencement.".
__________________
s. 8
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PART 3—AMENDMENT OF THE EVIDENCE ACT 2008
9 General discretion to exclude evidence
(1) In section 135 of the Evidence Act 2008—
(a) in paragraph (c), for "time." substitute
"time; or";
(b) after paragraph (c) insert—
"(d) unnecessarily demean the deceased in a
criminal proceeding for a homicide
offence.".
(2) At the foot of section 135 of the Evidence Act
2008 insert—
"Note
This section does not limit evidence of family violence
that may be adduced under Part IC of the Crimes Act
1958.".
10 New Part 5 inserted in Schedule 2 to the Evidence
Act 2008
At the end of Schedule 2 to the Evidence Act
2008 insert—
"PART 5—TRANSITIONAL PROVISION FOR
CRIMES AMENDMENT (ABOLITION OF
DEFENSIVE HOMICIDE) ACT 2014
22 Transitional—Crimes Amendment
(Abolition of Defensive Homicide)
Act 2014
This Act as amended by Part 3 of the Crimes
Amendment (Abolition of Defensive
Homicide) Act 2014 applies to a trial that
commences (within the meaning of
section 210 of the Criminal Procedure Act
2009) on or after the day on which Part 3 of
the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 comes into
s. 9
See:
Act No.
47/2008.
Reprint No. 1
as at
1 January
2011
and
amending
Act Nos
29/2011,
52/2012,
67/2013 and
17/2014.
LawToday:
www.
legislation.
vic.gov.au
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operation, irrespective of when the offence is
alleged to have been committed.".
__________________
s. 10
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Part 4—Amendment of the Jury Directions Act 2013
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22
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PART 4—AMENDMENT OF THE JURY DIRECTIONS
ACT 2013
11 Part 7 substituted
For Part 7 of the Jury Directions Act 2013
substitute—
"PART 7—SELF-DEFENCE OR DURESS IN THE
CONTEXT OF FAMILY VIOLENCE
29 Application of Part
This Part applies to a criminal proceeding in
which self-defence or duress in the context
of family violence is in issue.
30 Part 3 does not apply
Part 3 does not apply to this Part.
31 Definition
In this Part—
family violence has the same meaning as in
section 322J(2) of the Crimes Act
1958.
32 Direction on family violence
(1) 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).
(2) The trial judge must give the jury a requested
direction on family violence unless there are
good reasons for not doing so.
(3) If the accused is unrepresented and does not
request a direction on family violence, the
trial judge may give the direction in
accordance with this section if the trial judge
s. 11
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considers that it is in the interests of justice
to do so.
(4) The trial judge—
(a) must give the direction as soon as
practicable after the request is made;
and
(b) may give the direction before any
evidence is adduced in the trial.
(5) The trial judge may repeat a direction under
this section at any time in the trial.
(6) In giving a direction under this section, the
trial judge must inform the jury that—
(a) self-defence or duress (as the case
requires) is, or is likely to be, in issue in
the trial; and
(b) 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
(c) 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
(d) 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.
(7) If defence counsel requests that the direction
include any of the following matters, the trial
judge, subject to subsection (2), must include
those requested matters in the direction—
s. 11
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(a) that family violence—
(i) is not limited to physical abuse
and may include sexual abuse and
psychological abuse;
(ii) may involve intimidation,
harassment and threats of abuse;
(iii) may consist of a single act;
(iv) 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;
(b) if relevant, that experience shows
that—
(i) people may react differently to
family violence and there is no
typical, proper or normal response
to family violence;
(ii) it is not uncommon for a person
who has been subjected to family
violence—
(A) to stay with an abusive
partner after the onset of
family violence, or to leave
and then return to the
partner;
(B) not to report family violence
to police or seek assistance
to stop family violence;
(iii) decisions made by a person
subjected to family violence about
how to address, respond to or
avoid family violence may be
influenced by—
s. 11
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(A) family violence itself;
(B) cultural, social, economic
and personal factors;
(c) 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) in relation to the offence
charged.
(8) If the accused is unrepresented, the trial
judge may include in the direction any of the
matters referred to in subsection (7)(a), (b)
or (c).
(9) This section does not limit any direction that
the trial judge may give the jury in relation to
evidence given by an expert witness.
__________________
PART 8—TRANSITIONAL PROVISIONS
33 Transitional provisions
The Schedule continues to have effect.
__________________".
12 Schedule amended
In the Schedule to the Jury Directions Act 2013,
after clause 1 insert—
"2 Crimes Amendment (Abolition of
Defensive Homicide) Act 2014
This Act as amended by Part 4 of the Crimes
Amendment (Abolition of Defensive
Homicide) Act 2014 applies to a trial that
commences (within the meaning of
section 210 of the Criminal Procedure Act
2009) on or after the day on which Part 4 of
s. 12
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the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014 comes into
operation.".
__________________
s. 12
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PART 5—REPEAL OF AMENDING ACT
13 Repeal of amending Act
This Act is repealed on 1 July 2016.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
s. 13
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ENDNOTES
† Minister's second reading speech—
Legislative Council: 25 June 2014
Legislative Assembly: 20 August 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the
Crimes Act 1958, the Evidence Act 2008 and the Jury Directions Act
2013 to abolish the offence of defensive homicide and to reform the law
of complicity and for other purposes."
Endnotes
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