The impact of domestic and family violence (DFV) was front and centre in the Queensland Law Reform Commission’s (QLRC) findings from its community survey on criminal defences.
In Monday’s webinar Community Attitudes to Defences in Homicide and Assault Cases and the Penalty for Murder in Queensland – Survey Findings, QLRC Deputy Chair and District Court Judge Anthony Rafter explained the commission’s review of the defences, which was prompted by the findings of the Women’s Safety and Justice Taskforce.
Judge Anthony Rafter
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.
During the webinar, DFV researchers Dr Hayley Boxall, Professor Kate Fitz-Gibbon and Professor Lorana Bartels, with First Nations policy researcher Rebekah Ruddy, spoke about how 2485 adult Queenslanders responded to fictional scenarios.
Kate spoke about the application of defences for victims of domestic and family violence who kill, in particular the complete defence of self-defence, and the partial defences of killing in self-preservation and provocation.
“There has been significant community debate around the use of partial and complete defences and how they are accessible for victim survivors of domestic and family violence who kill an abusive partner, particularly where those actions occur in the context of fear,” she said
She said many survey participants used their lived experience to understand the mindset of the victims in the scenarios.
“In particular we found a lot of participants spoke about the entrapment of victim survivors with coercive controlling relationships and we’ve spoken in the report about the importance of domestic and family violence-informed jury directions and expert evidence in cases involving a history of abuse by the deceased, so that jury members who are making these decisions can understand the nature and impact of violence including social entrapment,” she said.
Lorana spoke about mandatory sentencing for murder, and the significant division among participants towards it.
“Some participants espoused the view of ‘a life for a life’ in cases of murder,” she said.
“Notably for many of these participants, their support for mandatory sentencing was linked to their concern about judicial officers’ ability to apply discretion appropriately in cases of homicides.
“And those concerns were mainly raised in relation to cases involving domestic and family violence where they questioned the court’s ability to understand the dynamics and impact of such violence and how perpetrators of abuse may weaponise the criminal justice system to reduce their sentences.”
She said a mandatory sentence for murder in legislation was viewed as a protection against such potential miscarriages of justice.
“Conversely, for some, because of their lack of faith in judicial officers to get it right, they were not supportive of mandatory sentences because they could imagine someone killing their partner in what was actually self-defence being charged and convicted of murder and then being sentenced to life in prison,” she said.
Hayley spoke about attitudes to provocation, including that such a defence could be seen to devalue a victim’s safety or their life, or carry a message that a defendant was not responsible for controlling their behaviour.
“What we see here are these ideal victimhood narratives coming through about who is a more deserving victim and when those defences of provocation should be able to be accessed,” she said.
“What we found as well is that the community does not support provocation as a defence to assault if there is a risk of significant injury to the victim.”
Rebekah spoke about how perceptions of culpability varied across the community according to gender, age, victimisation history, attitudes toward domestic and family violence, and indigenous status.
“Indigenous participants were more likely to empathise with defendants responding to public provocation, reflecting lived experiences of systemic racism and harassment,” she said.
“Other options for de-escalation, such as calling security, were often viewed as less legitimate or safe due to distrust in authority stemming from historical and systemic discrimination.”
The final report is due to be tabled in Parliament. For information on the review and the report, visit the QLRC website.
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