Victorian Numbered Acts Victorian Numbered ActsAfter Subdivision (1) of Division 1 of Part I of the Crimes Act 1958 insert —
(1) In this Subdivision—
"intoxication" means intoxication because of the influence of alcohol, a drug or any other substance;
"relevant offence" means murder, manslaughter or defensive homicide.
(2) Without taking away from the law relating to any other offences and except as otherwise expressly provided by this Subdivision, this Subdivision applies only to relevant offences.
A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury.
Note 1: See section 4 for alternative verdict of defensive homicide where the accused had no reasonable grounds for the belief.
Note 2: This section does not apply where the response is to lawful conduct—see section 9AF.
Note 3: See section 9AH as to belief in circumstances where family violence is alleged.
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level 3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.
Note: See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.
A person is not guilty of manslaughter if he or she carries out the conduct that would otherwise constitute manslaughter while believing the conduct to be necessary—
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person—
and he or she had reasonable grounds for that belief.
Note 1: See section 9AH as to reasonable grounds for the belief in circumstances where family violence is alleged.
Note 2: This section does not apply where the response is to lawful conduct—see section 9AF.
Sections 9AC and 9AE do not apply if—
(a) the person is responding to lawful conduct; and
(b) at the time of his or her response, the person knows that the conduct is lawful.
(1) A person is
not guilty of a relevant offence in respect of conduct carried out by him or
her under duress.
s. 6
(2) A person carries out conduct under duress if and only if the person reasonably believes that—
(a) subject to sub-section (3), a threat has been made that will be carried out unless an offence is committed; and
(b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(c) the conduct is a reasonable response to the threat.
(3) However, a person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.
(4) This section only applies in the case of murder if the threat is to inflict death or really serious injury.
Note: See section 9AH for evidentiary provisions where family violence is alleged.
(1) Without limiting section 9AC, 9AD or 9AE, for the purposes of murder, defensive homicide or manslaughter, in circumstances where family violence is alleged a person may believe, and may have reasonable grounds for believing, that his or her conduct is necessary—
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person—
even if—
(c) he or she is responding to a harm that is not immediate; or
(d) his or her response involves the use of force in excess of the force involved in the harm or threatened harm.
(2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in sub-section (3) may be relevant in determining whether—
(a) a person has carried out conduct while believing it to be necessary for a purpose referred to in sub-section (1)(a) or (b); or
(b) a person had reasonable grounds for a belief held by him or her that conduct is necessary for a purpose referred to in sub-section (1)(a) or (b); or
(c) a person has carried out conduct under duress.
(3) Evidence of—
(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.
(4) In this section—
"child" means a person who is under the age of 18 years;
"family member" , in relation to a person, includes—
(a) a person who is or has been married to the person; or
(b) a person who has or has had an intimate personal relationship with the person; or
(c) a person who is or has been the father, mother, step-father or step-mother of the person; or
(d) a child who normally or regularly resides with the person; or
(e) a guardian of the person; or
(f) another person who is or has been ordinarily a member of the household of the person;
"family violence" , in relation to a person, means violence against that person by a family member;
"violence" means—
(a) physical abuse;
(b) sexual abuse;
(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to—
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse or psychological abuse;
(v) in relation to a child—
(A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or
(B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.
(5) Without limiting the definition of "violence" in sub-section (4)—
(a) a single act may amount to abuse for the purposes of that definition;
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
(1) A person is not guilty of a relevant offence in respect of conduct carried out by him or her in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that—
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
(3) This section only applies in the case of murder if the emergency involves a risk of death or really serious injury.
(1) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
(2) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on a person having reasonable grounds for a belief, in determining whether those reasonable grounds existed, regard must be had to the standard of a reasonable person who is not intoxicated.
(3) If any part of an element of a relevant offence, or of a defence to a relevant offence, relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.
(4) If a person's intoxication is not self-induced, in determining whether any part of an element of a relevant offence, or of a defence to a relevant offence, relying on reasonable belief, having reasonable grounds for a belief or reasonable response exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.
(5) For the purposes of this section, intoxication is self-induced unless it came about—
(a) involuntarily; or
(b) because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
(c) from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
(d) from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
(6) Despite sub-section (5), intoxication is self-induced in the circumstances referred to in sub-section (5)(c) or (d) if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person's judgment or control.'.