Victorian Government proposal to abolish defensive homicide will remove stain on the legal system

Deakin University Criminologist, Dr Kate Fitz-Gibbon, has commended the State Government on the release overnight of their Defensive Homicide Consultation Paper which proposes major reforms to the Victorian law of homicide, including the abolition of defensive homicide.

"The Government's proposals for reform represent an important, and much needed, step forward for the Victorian law of homicide," she said.

"The abolition of defensive homicide will ensure that this unjust avenue away from murder is removed from our legal system."

Dr Fitz-Gibbon, who contributed to the department's review of the offence, said her research had exposed the problematic and unintended operation of defensive homicide from the perspectives of those engaged in the daily operation of the Victorian law of homicide.

As part of her research Dr Fitz-Gibbon examined all cases where defensive homicide has been raised since it was introduced in November 2005 and conducted extensive interviews with members of the Victorian judiciary, Victorian Defence bar and Office of Public Prosecutions to examine legal practitioner's experiences with the offence.

"The offence of defensive homicide was implemented in November 2005 alongside the former government's abolition of the partial defence of provocation," she said.

"Prior to its abolition, the provocation defence allowed a conviction for manslaughter in cases where a defendant successfully raised that a person's provocative behaviour had caused them to loss their self-control and respond with lethal violence..

"Defensive homicide differs to the former law of provocation, in that it provides a lesser category of homicide than murder for people who kill with the belief that their act was necessary to defend themselves, or another person, but where they have no reasonable grounds for that belief.

"It was intended that the offence would be a valuable 'midway' category between murder and self-defence for persons who kill in response to prolonged family violence."

Dr Fitz-Gibbon said while defensive homicide was not intended as a replacement for provocation, her research highlighted it had operated in similar concerning ways by providing an avenue away from murder for men who used lethal violence and blamed their victims, male or female, for their own deaths.

"What the cases and interview data on defensive homicide showed is that while the offence was implemented to provide a 'halfway house' for women who kill an abusive partner, it has been used in the vast majority of cases to the benefit of male defendants who have killed a male victim," she said.

"In these cases, a conviction for defensive homicide serves to partially legitimise the use of lethal violence and, in many cases, locate blame with the deceased victim.

"The government's proposals for reform thankfully direct this issue and will ensure that our justice system no longer acts to blame deceased victims for the lethal violence inflicted upon them."

Dr Fitz-Gibbon said there had quite rightly been public concern surrounding the operation of the offence since the controversial 2010 trial and sentencing of Luke Middendorp who became the first man to be convicted of defensive homicide having killed a female intimate partner.

"What the Middendorp case showed, and what is highly problematic, is that the offence can be manipulated and successfully raised by abusive male partners who kill in the context of relationship separation," she said.

"In this case we saw all the hallmarks of the provocation defence.

"While this is only one case, it is a welcome relief that the Government has proposed abolishing defensive homicide as an excuse for murder before anymore cases mirroring these circumstances are able to exploit this law further".

Dr Fitz-Gibbon maintains that through the complete defence of self-defence as well as a flexible sentencing structure for murder, the Victorian criminal justice system will be able to respond justly to persons who kill in the context of family violence without the need for the offence of defensive homicide.

"The Government's proposals are important in terms of bringing the law in line with community values and expectations of justice," she said.

"The criminal law has an important role to play in terms of appropriately labelling and responding to lethal violence and it is hoped that the government will act quickly in implementing these proposals."