Bargaining with Defensive Homicide: Examining Victoria's Secretive Plea Bargaining System Post-Law Reform
Flynn, Asher, Fitz-Gibbon, Kate, Melbourne University Law Review
[In November 2005, the Victorian government introduced a series of homicide law reforms, central to which was the implementation of a new offence of defensive homicide. The reforms followed from significant debate surrounding the use of the partial defence of provocation, particularly in relation to male-perpetrated intimate homicides. Since the new offence was implemented in 2005, a pattern of plea deals to defensive homicide has emerged, which, due to the private nature of plea bargaining in Victoria, has created difficulties in understanding how the offence is operating in practice. Informed by 63 interviews conducted with Victorian legal professionals, this article argues that greater transparency and scrutiny of plea bargaining is needed in Victoria in order to increase public confidence in the administration of justice, and to enable an informed understanding of why these cases are perceived and ultimately treated by the Crown as a less serious form of homicide.]
CONTENTS I Introduction II Research Design III Homicide Law Reform in Victoria IV Plea Bargaining in Victoria V Problems with Plea Bargaining in Victoria VI Advantages and Disadvantages of Plea Bargains in the Defensive Homicide Context VII Lack of Transparency in Defensive Homicide Cases A The Need for Transparency B Analysis of Defensive Homicide Cases VIII Achieving Transparency IX Conclusion
The offence of defensive homicide was introduced in Victoria in November 2005 (1) as part of a wider package of homicide law reforms recommended by the Victorian Law Reform Commission ('VLRC'). (2) The reforms sought to provide clarity to the partial defences to murder, and to respond to growing concerns that homicide law was operating in a gender-biased way. In particular, the operation of homicide law in Victoria was seen to disadvantage women who killed their male abusers, while simultaneously excusing the use of lethal violence committed by men against their female intimate partners. (3)
To date, (4) there have been only five cases in which an accused person has been found guilty of the offence of defensive homicide following a contested trial. (5) In the remaining 16 cases, the matter has been finalised by the Crown accepting a guilty plea from the accused. (6) Given that a guilty plea to defensive homicide can only be entered upon the Crown agreeing to withdraw any additional homicide-related charges, it is likely that many of these cases involved plea bargaining. While the pragmatic, emotion-based and financial benefits of obtaining a guilty plea are well established, (7) the use of plea bargaining to resolve defensive homicide cases raises concern because it limits the ability to effectively evaluate the practical application of this new offence, including its impact on gender bias in the operation of homicide law. This inability is primarily due to the hidden nature of plea bargaining in Victoria, which arises from the fact that the process is not recognised in, or controlled by, any statute. Additionally, no administrative data is kept outlining when or why a plea bargain has been made, which serves to further limit current understandings of the operation of defensive homicide. In particular, this absence of transparency hinders understanding of how decisions are being made in relation to what constitutes defensive homicide, and why the circumstances surrounding these cases allow for them to be categorised by the Crown as a less serious form of homicide.
Informed by 63 interviews conducted with Victorian legal professionals, this article provides a unique insight into the problems associated with the unscrutinised decision-making powers of prosecutors in plea bargaining, specifically in relation to the operation of defensive homicide in Victoria since 2005. In drawing from the experiences of those charged with the daily implementation of the law, this article contends that it is not the existence of prosecutorial discretion that is the key problem in evaluating the effectiveness of the offence, but rather that it is the potentially idiosyncratic nature of these discretionary decisions that creates difficulties. …