Victorian Numbered Acts Victorian Numbered ActsAfter Part IB of the Crimes Act 1958 insert —
This Part applies to any offence, whether against any enactment or at common law.
In this Part—
evidence of family violence has the meaning given in section 322J;
"really serious injury" includes serious sexual assault.
(1) The accused has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish self-defence, duress or sudden or extraordinary emergency (as the case may be).
(2) If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct in self-defence, under duress or in circumstances of sudden or extraordinary emergency (as the case may be).
(1) Evidence of family violence, in relation to a person, includes evidence of any of the following—
(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.
(2) 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; or
(b) sexual abuse; or
(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to the following—
(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.
(3) Without limiting the definition of violence in subsection (2)—
(a) a single act may amount to abuse for the purposes of that definition; and
(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 an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if—
(a) the person believes that the conduct is necessary in self-defence; and
(b) the conduct is a reasonable response in the circumstances as the person perceives them.
(3) This section only applies in the case of murder if the person believes that the conduct is necessary to defend the person or another person from the infliction of death or really serious injury.
Notes
1 See section 322M as to belief in circumstances where family violence is alleged.
2 The circumstances in which a person may carry out conduct in self-defence include—
• the defence of the person or another person;
• the prevention or termination of the unlawful deprivation of the liberty of the person or another person;
• the protection of property.
Section 322K does not apply if—
(a) the person is responding to lawful conduct; and
(b) at the time of the person's response, the person knows that the conduct is lawful.
(1) Without limiting section 322K, for the purposes of an offence in circumstances where self-defence in the context of family violence is in issue, a person may believe that the person's conduct is necessary in self-defence, and the conduct may be a reasonable response in the circumstances as the person perceives them, even if—
(a) the person is responding to a harm that is not immediate; or
(b) the 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 self-defence in the context of family violence is in issue, evidence of family violence may be relevant in determining whether—
(a) a person has carried out conduct while believing it to be necessary in self-defence; or
(b) the conduct is a reasonable response in the circumstances as a person perceives them.
Self-defence at common law is abolished.
(1) A person is not guilty of an offence in respect of conduct carried out by the person under duress.
(2) A person carries out conduct under duress if—
(a) the person reasonably believes that—
(i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
(ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(b) the conduct is a reasonable response to the threat.
(3) 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 person believes that the threat is to inflict death or really serious injury.
Without limiting the evidence that may be adduced, in circumstances where duress in the context of family violence is in issue, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress.
The defence at common law of duress is abolished.
(1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency.
(2) This section applies if—
(a) the person reasonably believes that—
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) the conduct is the only reasonable way to deal with the emergency; and
(b) the conduct is a reasonable response to the emergency.
(3) This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury.
The defence at common law of necessity is abolished.
(1) In this section—
"defence" includes self-defence, duress and sudden or extraordinary emergency;
"intoxication" means intoxication because of the influence of alcohol, a drug or any other substance.
(2) If any part of a defence to an 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.
(3) If any part of a defence to an 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 a defence to an offence relying on reasonable 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 subsection (5), intoxication is self-induced in the circumstances referred to in subsection (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.
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