Legal minds with expertise across criminal law and practice, domestic and family violence (DFV) research and homicide law reform helped launch the Queensland Law Reform Commission’s (QLRC) criminal defences review last week.
Queensland and New Zealand criminal law barrister Saul Holt KC, Queensland Director of Public Prosecutions Todd Fuller KC, indigenous barrister Melia Benn and legal scholar Professor Kate Fitz-Gibbon formed a panel at the review launch at the Commission office in Brisbane on Thursday.
The panel was chaired by Commission Deputy-Chair Judge Anthony Rafter, who said issues to be considered by the review included whether the defences could be made clearer and simpler to understand and apply, and whether the current defences remained fit for purpose and met community expectations.
The review, which began on 15 November last year, requires the QLRC to examine and make recommendations about particular defences in the Criminal Code Act 1899 (Qld):
- self-defence in ss 271 and 272
- provocation as a defence to assault in ss 268 and 269
- provocation as a partial defence to murder in s 304
- the partial defence to murder of killing for preservation in an abusive domestic relationship in s 304B, and
- domestic discipline in s 280.
The QLRC will also recommend if any changes are needed to reform the law, practice or procedure concerning those defences, including whether the mandatory penalty of life imprisonment for murder should be removed.
The panel was introduced by retired Queensland Court of Appeal President Margaret McMurdo, who chaired the Women’s Safety and Justice Taskforce.
She said the review was a critical opportunity to properly consider how the defences could best deliver the outcomes the community expected.
“It will involve successfully navigating the difficult tensions between the rights of victim-survivors of domestic and family violence and the rights of accused persons through the application of sound legal principles regarding criminal responsibility, the value to be placed on human life, contemporary community standards, and the need to ensure just outcomes,” she said.
“It is big-picture stuff. We have to get this right so as to maintain public confidence in our criminal justice system and ultimately, in our democracy.”
Todd spoke about the use of the provocation defence in the 2021 DFV case of R v Peniamina.
Kate spoke of the gendered ways in which defences had been applied in DFV cases, and pointed to the knowledge that now existed about women’s experiences with DFV.
“The opportunity of this review is to ask how that knowledge can now be applied to better understand the operation of these criminal defences, how can we better account in criminal law for the circumstances within which women are killed, and kill, in the context of domestic and family violence, because we haven’t yet been able to account for that successfully in the criminal law,” she said.
“We need to ask bigger questions around the ways in which these defences work and who they work for and who they punish.”
Saul spoke of how the defences did not cater to the nuanced nature of DFV.
“I know it’s sacrilegious to say that there are problems with the Code but it is now a really long time ago since it was drafted and I think it’s probably okay to think about what self-defence actually should look like in the modern world, and to trust juries with it,” he said.
Melia, as one of only two practising indigenous women barristers in Queensland, spoke of how courts were not a culturally safe place for indigenous women to present their stories of DFV.
A review consultation paper will be published in late 2024. The QLRC’s final report and draft legislation are to be handed to the government by 1 December 2025.
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