Self-defence and the reasonable woman: equality before the new Victorian law.

• Jurisdiction: Australia
• Date: 01 April 2012
• Author: Toole, Kellie

[The Crimes Act 1958 (Vic) was amended in 2005 to codify self-defence to murder and introduce the offence of defensive homicide. The changes aimed to improve legal protection for women who kill abusive family members. Four such women have faced murder charges since the new provisions were enacted. Two of the cases did not proceed beyond the committal stage, and two resulted in defensive homicide convictions. The lack of understanding of the dynamics of family violence that limited the way in which common law self-defence applied to abused women is now affecting the application of the new provisions. Of the two convictions for defensive homicide, one complete acquittal and one conviction for murder appear to be more appropriate outcomes.]

CONTENTS I Introduction II Background to the Law Reform A Women and Self-Defence to Murder B Background to the New Provisions--Heather Osland C Transition to the New Provisions--Claire MacDonald III The Law Reform A Codification of Self-Defence B Excessive Self-Defence/Defensive Homicide C Evidence of Family Violence D Application of the New Provisions IV Discontinued and Dismissed Cases: 'SB' and Dimitrovski A 'SB' B Freda Dimitrovski C Impact of the New Provisions V Convictions: Black and Creamer A Karen Black 1 History of Violence 2 Pleas to Manslaughter 3 Black's Background 4 Reasonableness B Eileen Creamer 1 Prosecution Case 2 Defence Case 3 Creamer's Credibility 4 History of Violence 5 Attitudes to Family Violence VI Conclusion I INTRODUCTION

The Victorian Parliament made sweeping reforms to defences to homicide in November 2005. The Crimes (Homicide) Act 2005 (Vic) amended the Crimes Act 1958 (Vic) ('Crimes Act') to codify self-defence to murder (1) and recognise excessive self-defence as a partial defence to murder through the offence/alternative verdict of defensive homicide, (2) These amendments were supported by the introduction of a provision allowing the admission of evidence of prior family violence where a defendant is on trial for killing a family member. (3) The primary aim of the reforms was to expand the scope of self-defence to apply more effectively to women who kill their abusive partners. The then Attorney-General described ss 9AC, 9AD and 9AH ('the new provisions') as

removing entrenched bias and misogynist assumptions from the law to make sure that women who kill while genuinely believing it is the only way to protect themselves or their children are not condemned as murderers. (4) Jurisdictions across the world struggle to provide legal protection for women who kill violent partners in circumstances where self-defence is not made out, (5) but where, according to community standards, they do not deserve to be stigmatised as murderers. (6) This issue is so well documented that one commentator suggests it is 'trite' to point it out. (7) The law of self-defence is capable of accommodating the experiences of women who kill abusive partners. The problem is that sections of the community and the legal profession do not adequately understand the dynamics of family violence, and so the law of self-defence is not always applied to the experiences of abused women. Where the law of self-defence does not accommodate their experiences, abused women are not equal before the law. (8)

Victoria's reforms were preceded by several years of research by the Victorian Law Reform Commission ('VLRC'). Its research analysed extensive data on the social and psychological dynamics of violent relationships and involved consultations with academics, police officers, members of the legal and medical professions, domestic violence workers and victim advocates. (9) If the reforms prove to be fairer to both abused women and to the broader community than the common law and statutory provisions in other jurisdictions, they have the potential to make a significant international impact by providing a model to address a human rights issue that has confounded western courts and legislatures for decades.

There is a small but significant body of case material relating to the introduction of the new provisions, as four women have been charged with killing abusive family members since 2005. (10) Prosecutions against 'SB' and Freda Dimitrovski did not proceed beyond committal proceedings, (11) and prosecutions against Karen Black and Eileen Creamer resulted in convictions for defensive homicide. (12) The material from these four cases provides a basis to analyse whether the reforms of the Crimes Act have affected, either positively or negatively, the legal position of women who kill abusive partners.

Part II of this article provides the background to the reforms of the Victorian law by outlining the law of self-defence and the problems with its application to women who kill abusive partners. It includes a discussion of the cases of Heather Osland (13) and Claire MacDonald, (14) which were heard before the 2005 reforms were introduced. Although Osland was convicted and MacDonald was acquitted, both cases illustrate the difficulties abused women face in arguing common law self-defence. Widespread criticism of both cases directly contributed to the changes to the Crimes Act.

Part III discusses the provisions that codify self-defence (s 9AC), enact defensive homicide (s 9AD), and permit the evidence of family violence to be admitted in trials for domestic homicides (s 9AH).

Part IV considers the cases of 'SB' and Dimitrovski to assess how the new provisions have affected the exercise of prosecutorial discretion and judicial decision-making. While the lessons are inconclusive, because both cases involve traditional self-defence situations, the effect of the new provisions was evident in the committal proceedings and decisions not to proceed with the prosecutions.

Part V considers the convictions in R v Black ('Black') (15) and R v Creamer ('Creamer'). (16) Both of these cases are firmly within the ambit of the law reform, as the reasonableness of the defendants' belief in the need for lethal violence was the live issue. The cases enable the evaluation of the impact of the new provisions on prosecutorial conduct, defence strategy and judicial attitudes.

Part VI concludes that the new provisions do offer assistance to abused women in certain circumstances, but that they have neither seriously challenged pre-existing attitudes toward family violence dynamics nor delivered outcomes wholly satisfactory to either abused women or to the broader community. Black's conviction for defensive homicide rests on the same assumptions about the nature of domestic violence and women's responses to it that the new laws were intended to abolish or ameliorate. These attitudes may have denied her the complete acquittal that was open on the facts of her case. Creamer's conviction rests on the same assumptions, and yet the new provisions may have directly contributed to her avoiding the conviction for murder that was open on the facts.

II BACKGROUND TO THE LAW REFORM

A Women and Self-Defence to Murder

In Victoria, murder is a common law offence. (17) A person is guilty of murder if they cause the death of another person, intending to cause death or grievous bodily harm, or acting knowing that death or grievous bodily harm will probably result. (18) Self-defence is a complete defence, including to a charge of murder. Until 2005, it too was covered in Victoria by the common law, through a two-limb test that required, first, that the defendant had a subjective belief in the need for lethal conduct and, secondly, that the defendant's belief in the need for the lethal conduct was objectively reasonable given their perception of the circumstances. The High Court articulated this test in Zecevic v Director of Public Prosecutions (Vic) by stating that the success of self-defence depended on

whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. (19) The test applied to all offences and did not define the type of threat that might make a person believe they needed to take defensive action, even where that defensive action proved to be lethal.

According to the most recent analyses of the Australian Institute of Criminology's National Homicide Monitoring Program, in 2007-08 there were 260 homicide incidents in Australia, involving 308 offenders. (20) Of the offenders, 268 were male and 39 were female. (21) Since the collection of these statistics began in 1989-90, men have accounted for approximately 80 per cent of homicide offenders each year. (22) This profile is typical of offending across the world. (23) Due to the high proportion of male homicide offenders, self-defence was developed, and has been consistently applied, in the context of 'confrontational homicides' between men. (24) Additionally, much of the development of self-defence occurred at a time when domestic violence against women was 'a legally tolerated and accepted activity'. (25)

Where men kill other men in self-defence, they usually respond with 'immediacy' during the original threat, and in a manner 'proportionate' to that original threat. (26) While neither characteristic is a formal requirement of the common law of self-defence, both have become closely associated with the defence. (27) This has serious consequences for women homicide offenders, who have most commonly killed within an intimate relationship. (28) A succession of Australian studies has found that a high proportion of women who kill an intimate partner are responding to long-term violence by the partner. (29) In these situations, women typically do not respond during a violent attack, (30) and as they are often smaller and less experienced in physical combat than their victims, frequently use a weapon when retaliating. (31) The actions of abused women, therefore, often...