‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill

Wake, Nicola (2015) ‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill. Northern Ireland Legal Quarterly, 66 (2). pp. 149-175. ISSN 0029-3105

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Abstract

This article provides an in-depth analysis of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 which had the effect of repealing Victoria’s only general ‘partial defence’ of defensive homicide, and replaced the existing statutory self-defence in murder/manslaughter provisions and general common law self- defence rules with a single test. The abolition of defensive homicide means there is now no general ‘partial defence’ to accommodate cases falling short of self-defence. The change is likely to mean that some primary victims will find themselves bereft of a defence. This is the experience in New Zealand where the Family Violence Death Review Committee recently recommended the reintroduction of a partial defence, post-abolition of provocation in 2009. Primary victims in New Zealand are being convicted of murder and sentences are double those issued pre-2009. An entirely new defence predicated on a fear of serious violence and several threshold filter mechanisms designed to accommodate the circumstances of primary victims is advanced. The proposed framework draws upon earlier recommendations of the Law Commission for England and Wale, and a comprehensive review of the operation of ss 54 and 55 of the Coroners and Justice Act 2009, but the novel framework rejects the paradoxical loss of self-control requirement and sexed normative standard operating within that jurisdiction. The recommendations are complemented by social framework evidence and mandatory jury directions, modelled on the law in Victoria. A novel interlocutory appeal procedure designed to prevent unnecessary appellate court litigation is also outlined. This bespoke model provides an appropriate via media and optimal solution to the problems faced by primary victims in Victoria and New Zealand.

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