Intimate Family Violence and the Abolition of Defensive Homicide

In 2014, Victoria abolished the offence of defensive homicide following a “widely held perception that it was being abused by violent men”.

Despite having been abolished, defensive homicide made appearances in headlines throughout 2016 and 2017 in the case of Bonnie Sawyer-Thompson. In 2017, Ms Sawyer-Thompson applied for leave to appeal in a case that Justice Croucher had earlier remarked was “likely to be the last time a person will be prosecuted for defensive homicide”.

The offence

The offence of defensive homicide was found in the Crimes Act 1958 (Vic) (Act), s 9AD. It was an alternative verdict available where a jury was “not satisfied that [the accused] is guilty of murder, but are satisfied that he or she is guilty of an offence against section 9AD”. In such a circumstance, the jury could acquit the accused of murder and find them guilty of defensive homicide.

A defensive homicide occurred where a person believed that their conduct was necessary to defend themselves or another person from the infliction of death or injury (then s 9AC of the Act), but did so where they didn’t have reasonable grounds for that belief (then s 9AD of the Act).

In an intimate family violence context, this offence was meant to cover the circumstance where family violence “[was] not of such a nature that would suggest defence from the infliction of death or really serious injury was a reasonable belief”. It was also intended so that the accused avoided the pejorative label “murderer”, and to provide a better litigation strategy than pleading guilty to manslaughter or trying to make out the complete defence of self-defence.

The abolition

It didn’t quite work out as intended. In the period between 2005 and 2015, Ulbrick, Flynn and Tyson identified 33 accessible defensive homicide cases. Eighty-two per cent of those cases involved a male perpetrator and male victim, 15 per cent involved a female perpetrator and a male victim, and 3 per cent a male perpetrator and female victim.

In a submission to the Victorian Department of Justice, the Law Institute of Victoria argued that the fact that more men than women were convicted of defensive homicide didn’t diminish the “utility” of the offence and opposed its abolition.

In 2013, the Victorian Department of Justice found in its consultation paper that “there is no clear evidence that defensive homicide is working in the way intended to support women who kill in response to family violence”. Despite opposition from the Domestic Violence Resource Centre Victoria, Federation of Community Legal Centres, the Victorian Women’s Trust and the Victorian Aboriginal Legal Service, the Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 passed and became law.

Bonnie Sawyer-Thompson

On 20 June 2014, a 19-year old Ms Sawyer-Thompson took a mattock and a knife to Mr Nankervis, an associate of her intimate partner, Mr Mifsud, ultimately inflicting the injuries that would kill him. She did so under the direction and in fear of Mr Mifsud, who threatened to kill her family before he absconded from the scene. Initially, Ms Sawyer-Thompson was charged with murder and foreshadowed a defence of duress to be used at trial.

On the second day of her trial, Ms Sawyer-Thompson abandoned her defence of duress. Defence counsel indicated that both parties accepted that Ms Sawyer-Thompson intentionally killed Mr Nankervis in the belief “that it was necessary to do so to defend her immediate family from being killed, albeit that she had no reasonable grounds for that belief”.

The offence of defensive homicide was in force at the date of the killing of Mr Nankervis. It fell to Justice Croucher to sentence Ms Sawyer-Thompson upon her plea of guilty. While the decision may hold little precedential value because of the abolition of the offence, the circumstances of Ms Sawyer-Thompson’s case are an interesting exploration of legal history.

Justice Croucher wrote that the case “is unique because the threat did not emanate from the person killed but from another who, ultimately, was absent at the time of the killing”. Justice Croucher found on the balance of probabilities that “Mr Mifsud subjected [Ms Sawyer-Thompson] to cruel, humiliating and violent acts”. These acts included, on her evidence, the use of cigarettes to burn her, the injection of illicit drugs against her will, the sniffing of petrol, forcing her to swallow bullets, and punching and choking her.

In 2016, Ms Sawyer-Thompson was sentenced to 10 years imprisonment with a non-parole period of seven years for the defensive homicide of Mr Nankervis.

On appeal

In September 2017, Tate JA handed down her decision in Sawyer-Thompson v The Queen [2017] VSCA 234. Justice Tate decided that Ms Sawyer-Thompson’s application for leave to appeal should be determined by a bench of three judges at the same time as the hearing of the appeal.

Justice Tate wrote “there remains the question whether an error was made… given the finding that Sawyer-Thompson genuinely believed her family were at risk of being killed by Mifsud… and her vulnerability to Mifsud’s threats based upon her experience of his violence and psychological abuse”.

For practitioners working in this area of law in 2018, the self-defence provision of the Act now reads that “the conduct is a reasonable response in the circumstances as the person perceives them” (s 322K(2)(b)), and where family violence is in issue the harm need not be “immediate” (s 322M(1)(a)). Whether this adequately responds to the objections of the community and women’s groups opposed to the abolition of defensive homicide is an open question.

For Ms Sawyer-Thompson, her sentencing for the crime of defensive homicide will be considered by an appropriately composed three judge Court of Appeal. Almost four years after it was abolished, as women’s issues take centre stage in the media, the offence of defensive homicide remains as relevant and hotly contested as ever.

Alexander Ross is a Sydney-based lawyer working with the knowledge team at King & Wood Mallesons. Prior to KWM he worked for Thomson Reuters’ own Practical Law, as an associate in restructuring and insolvency at Squire Patton Boggs and at a NewLaw startup.

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