Saturday, 13 February 2010

Queensland : new DV defence to murder

Queensland has now enacted changes to its Criminal Code so that victims of domestic violence who kill their perpetrators have a partial defence- .ie. - murder reduced to manslaughter, and will not have such a burden to show Battered Wives' Syndrome. This reflects moves in other states, some of which have total defences.

The most famous victim of domestic violence in Queensland is Robyn Kina. Ms Kina was convicted of the murder of her partner following her having stabbed him. No evidence was led by her at the trial. Her case became a cause celebre, as she had been subjected to extensive domestic violence. In addition, a clear issue in the case was that her lawyers had not been trained in obtaining instructions from Aboriginal clients, with the result that there had been a clear breakdown in communication between Ms Kina and her trial lawyers.

A subsequent appeal was upheld. Rather than put her on trial again, the then Attorney-General discontinued charges on the basis that she had suffered enough.

The changes had bipartisan support. I have set out below the second reading speech of the Attorney-General, Cameron Dick, and the learned response of his shdow, Lawrence Springborg.

The Attorney's first and second reading speeches

CRIMINAL CODE (ABUSIVE DOMESTIC RELATIONSHIP DEFENCE AND


ANOTHER MATTER) AMENDMENT BILL

First Reading

Criminal Code (Abusive Domestic R’ship Defence & Another Matter) Amendment Bill

Hon. CR DICK (Greenslopes—ALP) (Attorney-General and Minister for Industrial Relations)

(11.38 am): I present a bill for an act to make particular amendments to the Criminal Code to provide for

a manslaughter conviction in relation to killing in an abusive domestic relationship and to prohibit

possession of equipment in relation to an offence of obtaining or dealing with identification information. I

present the explanatory notes, and I move—

That the bill be now read a first time.

Question put—That the bill be now read a first time.

Motion agreed to.

Bill read a first time.

Tabled paper: Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill [1507].

Tabled paper: Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill, explanatory notes

[1508].

Second Reading

Hon. CR DICK (Greenslopes—ALP) (Attorney-General and Minister for Industrial Relations)

(11.38 am): I move—

That the bill be now read a second time.

The bill amends the Criminal Code to insert a new partial defence to murder of ‘killing in an

abusive domestic relationship’ and to insert a new offence for unlawfully possessing equipment used to

obtain or make identification information. The new partial defence to murder will apply to victims of

seriously abusive relationships who kill their abusers. The defence will be the first of its kind in the

country and will operate to provide legal protection for victims in this category of offending. The

development of a separate defence for these victims has evolved from detailed consideration and

examination of the topic by my department, the Queensland Law Reform Commission and academics.

The Queensland Law Reform Commission recommended that consideration be given to the

development of a separate defence of battered persons. In furtherance of this recommendation, the

Department of Justice and Attorney-General retained Professors Geraldine Mackenzie and Eric Colvin

from Bond University to consider this matter further. Professors Mackenzie and Colvin’s examination

involved consultation with key stakeholders including the judiciary, legal profession stakeholders,

community stakeholders and other academics. Their examination also involved a thorough review of

relevant case law, legislation and a body of research on the actions of victims of abuse who kill their

abusers. The examinations undertaken by the Queensland Law Reform Commission and Bond

University demonstrate that victims of seriously abusive relationships often offend in circumstances that

fall outside the operation of existing defences like self-defence and provocation because of their

experiences within the seriously abusive relationships.

While it is important to maintain the mandatory life imprisonment penalty for those who are

convicted of murder, victims of seriously abusive relationships warrant special consideration within our

criminal justice system. The new partial defence reflects this. Where no other existing defence or

excuse operates to assist these victims, those who kill in the circumstances outlined in the defence will

be convicted of manslaughter instead of murder and therefore allow a court to exercise a broader

sentencing discretion.

3670 Criminal Organisation Bill 26 Nov 2009

The defence will only be available where the accused has killed a person; the person killed was in

an abusive domestic relationship with the accused and had committed acts of serious domestic violence

against the accused in the course of that relationship; at the time of the killing the accused believed his

or her acts were necessary for the person’s preservation from death or grievous bodily harm; there were

reasonable grounds for this belief, having regard to the abusive relationship and all the circumstances of

the case.

The use of the term ‘serious’ within the provision in relation to the level of domestic violence is

used as a matter of emphasis to place the nature of the domestic violence in the Supreme Court murder

trial in context. It is recognised that domestic violence of any description is a serious issue for our

community and we should treat each incident accordingly. All domestic violence must be condemned

not only by government but in all our communities and in all our homes. However, the use of the term

‘serious’ in this bill acts to create an appropriate threshold for the application of this partial defence to a

charge of murder.

The operation of the defence will require the evidential burden to lie with the accused but with the

ultimate onus of proof remaining with the prosecution—that is, it will be a matter for the accused to

ensure there is sufficient evidence before a jury, whether introduced by the prosecution or defence, to

raise the defence. Once the evidence in a case raises the defence, the onus will be on the prosecution

to negative the defence beyond reasonable doubt. This burden mechanism is similar to that which

operates in relation to existing defences of self-defence and honest and reasonable mistake of fact.

The defence is framed in a way that will ensure it is reserved for genuine victims and not abused

by unmeritorious individuals—for example, the primary perpetrators of the violence in the relationship.

The defence represents an effective balance between necessarily punishing those who would otherwise

be guilty of murder and providing some legal protections for victims of serious abuse.

The bill also amends section 408D of the Criminal Code by inserting a new offence of possessing

equipment for the purpose of obtaining or dealing with identification information. Currently, it is an

offence to obtain or deal with identification information with intent to commit an indictable offence. For

example, it is an offence to obtain or use another person’s credit card details by skimming an ATM or

EFTPOS machine.

However, the law does not provide adequate protection where a person possesses a skimming

device but has not yet used it. Equipment that can be used to obtain identification information includes

common use items, such as mobile phones with cameras or bluetooth technology and laptop

computers. To prevent the mere possession of common items becoming unlawful, the offence requires

proof of an unlawful purpose—that is, the prosecution must prove that the defendant possessed the

items for the purposes of committing an identity theft offence. The introduction of this offence represents

a further step to protect the community from identity theft, which is a highly intrusive and costly form of

crime. I commend the bill to the House.

Lawrence Springborg's Response
 
Mr SPRINGBORG (Southern Downs—LNP) (Deputy Leader of the Opposition) (3.18 pm): At the


outset I can indicate that the LNP will be supporting the bill before the House. However, there are some

issues of reservation which we do raise. We will be wanting an explanation or some further clarification

from the Attorney with regard to the substantive application of this amendment—the major amendment

we are talking about here—and that relates to the Criminal Code with regard to the defence of people

who have been involved in an abusive domestic relationship if they have killed another person in that

relationship.

At the outset I refer to the discussion paper by Bond University that notes—

Victims of seriously abusive relationships (often called ‘battered persons’) who respond with violence against their abusers are

widely considered to deserve at the very least some mitigation of punishment to reflect reduced culpability. In cases where they

acted for reasons of self-preservation with a genuine belief in the necessity of the action, mitigation might be thought deserved

even if the perception of the danger or of the options for escaping it was wrong.

The discussion paper further canvassed the issue by stating—

If a victim of abuse kills the abuser in fear and desperation but the conditions for a defence of self-defence are not justified, a

conviction of murder might still be unjust. A conviction of some lesser offence such as manslaughter might more appropriately

reflect the degree of culpability.

The review found this argument could be made on the basis of the stigma attached to the offence

of murder regardless of its penal liability. It could be suggested that a murder conviction would be a

particularly grave injustice in jurisdictions such as Queensland where such an offence carries a

mandatory sentence of life imprisonment. I would indicate that neither the government nor the LNP

would have any intention of changing that particular section as it applies at the moment, which is

minimum mandatory life for the crime of murder. However, I think it is very important that we do point out

that within legal circles and academia, and probably also privately in the judiciary, there is concern about

the lack of sentencing discretion which limits their capacity to take on board the extraordinary

circumstances of a particular case and the potential disproportionate application of a particular penalty

for the crime of murder when, in the minds of some people, there may be serious circumstances of

mitigation.

As has been reported previously by the Australian Institute of Criminology, contrary to public

perceptions that we are most at risk of being murdered by a stranger, homicides in Australia and

elsewhere are most likely to involve persons who are known to each other such as friends,

acquaintances and family members. The AIC also reported that, over the 13-year period covered by the

analysis, on average there were 77 intimate partner homicides each year. The majority involved males

killing female intimate partners—that is, 75 per cent. Females comprised only 20 per cent of offenders of

intimate partner homicide, confirming prior research that males are more likely than females to kill their

intimate partner.

58 Criminal Code (Abusive Domestic R’ship Defence & Anor Matter) A’ment Bill 09 Feb 2010

Research suggests that intimate partner homicide is at the extreme end of a continuum of

domestic violence. Most domestic violence usually occurs within the privacy of the home. Intimate

partner homicide is no different. Accordingly, four out of five intimate partner homicides occurred in a

private dwelling with almost two in five—that is, 39 per cent—occurring between partners with a known

history of domestic violence. Seventy per cent took place during the evening or early morning—that is,

between 6 pm and 6 am—and on a weekday. When the motive for intimate partner homicide is

examined, more than 53 per cent stem from a domestic altercation between the victim and the offender.

Slightly less than three in 10—that is, 29 per cent—were believed to stem from jealousy, desertion or

termination of the relationship, actual or pending.

Killing the Beloved is a review of domestic homicide. In the section focusing on sentencing

women who killed their male partners, self-defence was not mentioned in any of the 10 cases reviewed.

Yet it is noted in the review that, if tried in the United States, at least some of the women who killed in the

sample probably would have been acquitted on the grounds of self-defence. If defined in traditional

terms, none of those cases met the criteria for self-defence. However, the US courts have

acknowledged that in many cases, due to both psychological and socialisation differences, a female

simply cannot defend herself in the same manner as a male and, even more specifically, that living with

constant battering for an extended period impacts on the individual’s ability to act according to the way

that a reasonable man would behave.

In many trials self-defence has been shown by introducing evidence about battered woman

syndrome. According to Patricia Weiser Easteal, battered woman syndrome is a term that refers both to

a certain pattern of violence and the psychological consequences upon the recipient of the violence.

BWS is considered to be a subtype of post-traumatic stress syndrome, which has been identified as a

consequence of enduring years as a hostage or in other high-stress environments such as

concentration camp internment. The syndrome is the culmination of three stages that can recur in the

domestic violence situation. The first phase of tension building may lead to the second stage of severe

bashing, which is followed by a third phase, which is a time period exemplified by the batterer’s

contrition, promises and temporary cessation of violence. The latter acts to keep the woman in the

relationship, believing the nightmare is over when, in fact, most often it has just begun. The cycle

continues with stage 2 violence increasing in type over time. These stages do not proceed at any set

pace and vary over time within a relationship and among different couples.

In many senses this bill could be seen as a failure in existing domestic violence protection

legislation and associated services offered by government. If we have come to the point where women

feel they can no longer leave violent and abusive relationships because existing support services and

protection legislation is so inadequate that they feel the only way out is to murder their partner, then

clearly the question is: has the state failed and should the state be doing more?

Since the Domestic and Family Violence Protection Act was introduced, we have seen a steady

growth in the number of orders taken out to protect aggrieved persons. Between 2006 and 2009 there

were 25,828 breaches of domestic violence. The Queensland Police Service’s report on domestic

violence states—

There are three important elements to be aware of with domestic and family violence:

Domestic and family violence does not discriminate—it is not limited to a specific age, income, race or sexual preference.

Indeed, I would add the sex of the person, even though we all know that in the majority of cases it is

male against female. It continues—

Domestic and family violence is complex—it includes emotional abuse, physical acts of violence, sexual abuse, in addition to

social isolation and financial deprivation.

Domestic and family violence is difficult to accurately measure—due to the complex cyclic and private nature of domestic and

family violence, it is difficult to accurately measure how many Queensland families are affected. It is not until the threat of violence

escalates to actual physical or sexual violence, that the hidden nature of domestic and family violence may be revealed.

Now I want to put on record some of the stakeholder views on the issues canvassed in this bill.

However, before I do that, it is important that I point out that the government has not adopted all of the

recommendations of the review committee. There has been some topping and tailing of the

recommendations, and variations to some of them have been made. The Central Queensland

University’s Queensland Centre for Domestic and Family Violence Research Centre states—

The Bill provides specific recognition of the special circumstances surrounding victims of serious domestic violence who kill their

abusers and, for this, it is commendable. However, it is disappointing that victims of serious domestic violence will have,

specifically, only a partial defence when they are deemed to have reasonably acted for self-preservation in taking the life of their

abuser. They will need to rely on the general laws of self-defence for a complete defence to murder.

In several ways, Queensland’s laws of self-defence are of limited value to victims of serious domestic violence. In general, these

limitations arise because of the gendered nature of domestic violence and responses to it for self-preservation. For example, the

defence of self-defence requires that an assault has

occurred or is imminent, whereas a defensive response to serious domestic violence is more typically in anticipation of an attack,

or in response to a series of prior attacks. This is because such defensive action usually involves a woman defending herself

against a man, with disparity in physical stature and strength and in circumstances where simply leaving is not sufficient for

selfpreservation; in fact leaving may increase the risk to the victim’s life. Gender differences are also relevant to the use of force

09 Feb 2010 Criminal Code (Abusive Domestic R’ship Defence & Anor Matter) A’ment Bill 59

that exceeds the force involved in the abuse and which, in the absence of a gendered perspective, may be considered

unreasonable.

While the proposed new defence is a step in the right direction, it seems there will still be gender bias in Queensland law regarding

defences against murder when a defendant is deemed to have reasonably acted for self-preservation.

I am not sure that I agree with all of the assertions contained in that paper. However, these are

concerns which have been raised by a significant organisation that has a very great interest in this. I

think there is a difficulty if you seek to correct a perceived or real gender imbalance in the criminal law

because I suppose one never really knows where that will end up. Legal Aid Queensland wrote in a

lengthy submission—

... the following observations made by Legal Aid Queensland reflect general agreement with the comments of the joint working

group, but do not purport to address all of the issues raised in the discussion paper.

Given the complexity of the issues and the potential for unintended consequences to arise within our criminal justice system

should reforms be enacted, we would urge that more consideration be given to these matters, and more time allowed for informed

comment and consultation. The complexity and detail of the relevant issues would, in our respectful view, be an appropriate matter

for a further reference and report of the Queensland Law Reform Commission.

...

We do not support the introduction of a new/separate complete defence, either confined only to circumstances where an alleged

abuser is killed, or more broadly available on any charge involving an element of personal violence.

Rather, our preferred option would be for introduction of an appropriate sentencing discretion for murder. We appreciate that the

Government has adopted a position which excludes the option of introducing discretion into murder sentencing. Nevertheless, in

our view that would be the most appropriate mechanism for addressing the perceived difficulties driving the current law reform

proposals. The sentencing guidelines under s 9 of the Penalties and Sentences Act 1992 would accommodate a considered

judicial examination of all relevant factors surrounding the context of the act leading to the killing of an abuser, and lead to the

imposition of a sentence that was appropriate in all the circumstances.

Many abusive relationships involve complex dynamics, with possibly reciprocal abuse between partners and impacts on other

parties such as children. A discretionary sentencing regime would make available the full range of sentencing options, including

those community-based options that may, in such cases, best ensure the defendant is not likely to re-offend by requiring the

defendant to complete programs or attend counselling.

Legal Aid also noted in its submission—

We do not necessarily accept the observation at paragraph 1.7 of the paper that “exercise of a sentencing discretion may not be

answer in all cases. Victims of seriously abusive relationships who respond with violence against their abusers are sometimes

thought to merit a complete defence against criminal liability, at least where there were reasonable grounds for fear and

desperation.” Clearly, a killing founded on “reasonable grounds of fear and desperation” may attract the operation of a complete

defence of self-defence where there is a reasonable apprehension of death or grievous bodily harm. Indeed, we are aware of

several cases where accused persons have successfully used the current law of self-defence to secure an acquittal in murder and

attempted murder cases, based on evidence about the existence of a seriously abusive relationship, and its impact on the

accused.

...

We have noted the joint working group’s comments about a possible partial defence modelled on a revised version of s 270 of the

Criminal Code, in effect a partial defence of prevention of repetition of abuse.

We have seen but have not had an opportunity to consider in detail the proposed draft new self-defence provision provided

recently by Professor McKenzie during consultations about the paper.

I would also like to thank Professor McKenzie for taking the time to brief me on this particular

issue, about the work which that working group did, and for giving me an explanation of the reasoning

and the rationale behind their recommendations and also for giving me a better understanding of the

legislative changes which we are debating in the parliament today. The Legal Aid submission

continues—

There is one specific issue we wanted to raise about partial defences. There is considerable discussion in the paper about the

psychological state of victims of seriously abusive relationships and their motivations in killing, and noting of the potential

application of the existing concept of diminished responsibility under s 304A of the Code.

These are the evidentiary issues which have been outlined by Legal Aid Queensland. In

addressing evidentiary provisions, a joint working group position which Legal Aid, Queensland Law

Society and Bar Association formed is that special rules of evidence should not be developed for any

proposed new defence, given the likelihood of unintended consequences arising. However, Legal Aid

wrote in its submission—

In principle, we would support witnesses such as domestic violence workers—including social workers, being able to give

evidence in appropriate cases (if that evidence of course met the primary tests of being relevant and probative). NESB women

also will have barriers and cultural reports may assist in relevant cases. There would naturally be limits to the evidence such

witnesses could give, and issues of the appropriate weight to be given to reports such as those based on the clinical work

conducted by a social worker in the area of domestic violence.

...

... the team holds a strong concern that women who live in regional areas have limited access to experts to provide reports for

consideration in any judicial proceedings.

I think that is very important to remember. Legal Aid Queensland and its team held concerns that

women in regional areas of Queensland were at a significant disadvantage to access the evidentiary

60 Criminal Code (Abusive Domestic R’ship Defence & Anor Matter) A’ment Bill 09 Feb 2010

provisions or to be able to provide that particular defence in a court. Over the years we have heard

about the issues of violence that happen in isolation and the issues of violence that happen in some of

our more remote Indigenous communities. So people far away from assistance who are forced into this

circumstance and who take this sort of tragic mortal action against their abuser may not necessarily

have had access in the lead-up to that particular act to the services which may have been able to

provide some benefit to them in terms of evidence if they sought to use this new section of the Criminal

Code. Furthermore—

... consideration also should be given to the position of women who did not speak English as their first language, when trying to

gather evidence of their experiences of domestic violence. Evidence gathering can be particularly problematic for situations

involving NESB women who may be charged with offences arising from seriously abusive relationships.

The bill proposes several elements to the defence that will have to be met by the defence and

then disproved by the prosecution for it to be able to be relied upon. These elements include: the

accused has suffered serious domestic violence in an abusive domestic relationship; the deceased had

committed acts of serious domestic violence against the accused in the course of the relationship; the

accused believed at the time of the killing that their action was necessary to avert her or his own death

or grievous bodily harm; and, having regard to the abusive relationship and in all the circumstances,

there are reasonable grounds for this belief. The problem is that, despite attempts to make this an

objective test, the ultimate test remains subjective and can vary from court to court, judge to judge and

case to case.

A concern with the bill is that it looks like self-defence is a complete defence, and yet it is only a

partial defence. In the Queensland Criminal Code, self-defence requires that a person believes on

reasonable grounds that it is necessary to respond with lethal force. The problem over time has been a

reluctance of juries to accept that a battered woman may believe on reasonable grounds that her life is

in danger as a result of a history of domestic violence.

Has the government considered that this bill has the potential for misuse by those for whom it was

not intended? Some academics have highlighted that in Victoria, where the crime of defensive homicide

has been introduced, the successful prosecutions have all related to men killing other men. So the

provision seems to have provided another alternative way for men to reduce their criminal culpability,

although provocation has also been abolished in that state.

As these proposed amendments are only a partial defence in situations where the defendant has

been subjected to serious domestic abuse, I pose the question: has the government considered the risk

that the jury will choose this option in preference to self-defence where, in some cases of serious

domestic violence, the response is, in reality, a response of self-defence? A woman seriously abused is

sometimes acting to save her own life.

I want briefly to turn to the second part of the bill, which focuses on possessing identity fraud

equipment. Identity fraud is a serious crime that undermines the very fabric of how we now live our lives

in this technology age. This is why such offences as those which are being proposed in this bill are

important to act as a real deterrent and give comfort to the Queensland community. The identity fraud

criminals and those who contribute to such offences will be, and should be, treated harshly. We as a

community need to have confidence that when we share our personal information with third parties the

laws for breaches of the use of such information will be dealt with seriously. This amendment goes

some way towards achieving that, despite the maximum penalty being relatively low and despite the

threat being posed by identity fraud.

Make no mistake: this bill is no substitute for better resources and support for victims of domestic

violence, which are very important. We need to ensure these people have the support of the state, and

they know that people will be there to help them out of their situation. I know some people would ask

how they continue to live in that situation. I suppose clinically sitting back in isolation it might seem very

easy to get out of such relationships, but they have dismissed the fact that people are often trapped

because children are involved and threats have been made that something might happen to the

children. It is the only thing that they know and so they get into this cycle. While some people might

assert that it is very easy to get out of these situations, it is not necessarily because of the particular

state that person has been in and because they have lived in that state over such a long period of time.

In conclusion, there is another point I want to make regarding domestic abuse situations. People

have asked me whether this applies to a spousal situation—the intimate relationship between a male

and a female who have been engaged in a relationship. Some might be of a spousal nature and some

might be a formative relationship between two people. As I understand it—and I would like some

clarification from the Attorney—this will apply to all domestic and family relationships as is spelt out or

defined in the Domestic and Family Violence Protection Act that we have in Queensland. I understand

that this legislation extends to family situations. It may be a child against an adult. It may be an adult

against a child. So it extends right across to those family abuse situations and intimate relationships.

I suppose that is the only real way that you can do it. I understand there were some

recommendations from the joint working group which indicated there should be a defence along those

lines for a third party. In some cases—as we have found, I understand, in Victoria—there will be a

09 Feb 2010 Criminal Code (Abusive Domestic R’ship Defence & Anor Matter) A’ment Bill 61

situation where a son, for example, will step in to protect the mother who is being abused by the father

and then somebody gets killed. It may be the father who gets killed, and the son may end up on a

murder charge. While they may not have been victims of domestic abuse, they have stepped in to assist

their mother or someone else in the family. That issue was raised during the consultation phase. I am

not sure whether that is covered in this legislation.

One of my concerns is the interpretation and application of the law. Whilst it is there to make sure

that predominantly women are protected, there will be some men, because I think in about 20 per cent

of cases men are the recipients of domestic violence. In some cases it is physical domestic violence and

in many cases it is verbal domestic violence where someone reacts and somebody loses their life. Keep

in mind also that there does not need to be any demonstration of physical violence. It can be sustained

verbal abuse which a person can lead in their defence. This deals with domestic violence, whether it is

physical or verbal.

I hope that this provision is not abused. I believe that it will not be generally abused, because I

think in the majority of cases it will be of enormous benefit to those people who deserve serious

recognition of the action that they have taken out of desperation. However, there may very well be

people who will try to construct a defence, probably with not a lot of evidence because there may not

necessarily have been witnesses. But they will be taking expert advice from a counsellor or a

psychologist. They may be the only source of expert advice or expert witness in a court. There may be

difficulty in proving anything beyond that, but I suppose that is up to the court process. Hopefully people

will do the right thing with this. This is an essential amendment. There probably should have been some

further consideration given to recommendations of the joint working party, but it is the right of the

incumbent government of the day to apply the recommendations as it sees fit based on its philosophy,

or its policy, or other advice that it may have received from time to time.

I would like to hear the Attorney’s further explanation and clarification of its application broadly

across a range of domestic situations—obviously nonspousal. I think the Attorney nodded in agreement

with regard to that as well. He might be able to explain some of those other clauses. I know there is a

clause in the bill—and I will probably come to it during the consideration in detail stage—which indicates

that the violence or the concern that a person might have may seem trivial at the time but should not be

considered in isolation. People are concerned to ensure there is a very strong foundation to this defence

which can see the charge of murder being substituted with manslaughter. Generally, the LNP supports

the bill. It is a worthwhile initiative. Like anything, we need to watch its practical application and ensure

that it assists those people we are trying to assist by its passage through the parliament.

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