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Bond academics help frame `battered persons defence'

A team of Bond University academics has helped drive a new state criminal code defence for victims of violent relationships who kill their abusers.

Queensland’s Department of Justice and Attorney General approached Bond University’s Dean of Law Professor Geraldine Mackenzie and Professor Eric Colvin earlier this year to write a report on this issue – a rare opportunity offered to academe to shape criminal law.

The Bond academics were asked to investigate a new possible defence for victims of violent relationships, after a Queensland Law Reform Commission report written last year showed ‘self-defence’ was only available in limited circumstances.

‘Self-defence’ does not necessarily encompass the actions of victims of repeated domestic violence who act out and kill their abuser in a pre-determined fashion.

The research has convinced the Queensland Government to draft a new ‘battered persons defence’, which will allow juries to bring down a verdict of manslaughter instead of murder in applicable cases.

With the assistance of Bond Associate Professor Jodie Leary, professors Mackenzie and Colvin’s research paper examined whether the existing ‘self-defence’ argument should be amended, or whether a new defence should be drafted that acknowledges desperate people will act out and kill their abuser to end sustained violence.

Community legal services, indigenous services groups, and domestic violence support groups were consulted by the Bond team for the research project. 

“If we haven’t experienced it, it can be difficult for us to understand why a person exposed to persistent violence, whether it be physical, sexual or emotional, does not simply leave their abusive situation,’’ said Professor Mackenzie, also a practising barrister.

“But these relationships can be dominated by years and years of horrific violence, intimidation and control.

“Our research has found victims are often deterred from trying to leave the relationship because they feel isolated and fear for the safety of themselves and their family.

“Through our research we examined previous legal cases and also consulted with victims support groups and found some people – it’s not exclusive to women – feel so trapped and afraid, they find the only way out is the most extreme of all crimes.’’

The Gold Coast Domestic Violence Prevention Centre Inc was one service group consulted by the academics.

Centre Director Donna Justo said domestic violence was not predisposed to socio-economic or cultural lines.

“Domestic violence is a critical issue, and it can end in death,’’ said Mrs Justo.

Professor Mackenzie said the research project did not advocate homicide. Instead, the research was undertaken so the judicial system better assessed the actions of people who chose to fight back against continued abuse.

The Queensland Law Reform Commission report, The Excuse of Accident and the Defence of Provocation, included case studies on judicial decisions on domestic killings cases, and the circumstances behind the cases.

The Queensland Government said the proposed new defence will apply only in cases where the accused has unlawfully killed another in the following circumstances:

  • The accused has suffered domestic violence in an abusive domestic relationship;
     
  • The person has committed acts of serious domestic violence against the accused in the course of that relationship;
     
  • At the time of the killing the accused believes the acts are necessary for the person's preservation from death or grievous bodily harm;

      and

  • There are reasonable grounds for this belief, having regard to the abusive relationship and all the circumstances of the case.

The Government said a draft of the Criminal Code Amendment Bill 2009 will soon be released for public consultation with relevant stakeholders.
 

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