However, the recent case of R v Creamer  VSC 196 has demonstrated that a female offender may be able to rely on defensive homicide to reduce the seriousness of their offence.
In R v Middendorp the defendant, Luke Middendorp, had a history of instigating family violence against Jade Bowndes, his former partner. On 1 September 2008 the defendant stabbed the victim four times in the back in what he claimed was self defence. The defendant was charged with murder, but ultimately found guilty of defensive homicide. This verdict indicated that defensive homicide was 'leading to unjust outcomes' (then Shadow Attorney-General Robert Clarke, 'New calls for state to overhaul homicide laws', The Age, 20 May 2010) and appeared to replace provocation, an earlier partial defence abolished by defensive homicide.
In R v Creamer  VSC 196, Eileen Creamer, the defendant, was a 53-year-old Moe grandmother described as being involved in a 'largely, if not entirely, dysfunctional' relationship with her husband, David Creamer. Both parties had affairs and the husband often attempted to get his wife to engage in group sex, which she strongly resented. On returning home on Saturday 2 February 2008 the wife believed that the husband was attempting to arrange for her to have sex with other men in his presence. Events followed, and it was established that the wife bashed the husband, possibly with a knobkerrie (a South African club), and stabbed him in the abdomen. The husband subsequently died and the wife was charged with his murder. Ultimately the wife was the first woman to be convicted of defensive homicide. She was sentenced to 11 years imprisonment.
The decision in Creamer demonstrates the importance of the 'halfway house' provided by defensive homicide. By convincing the jury that she subjectively, although unreasonably, believed that the killing was necessary, the wife was acquitted of murder. Creamer indicates that defensive homicide can be used by women in a family violence context and therefore that, at present, the 'halfway house' of this provision should not be abolished. Close monitoring of defensive homicide cases should determine whether family violence victims are benefiting from the offence or whether further reform is required.
JAKE COLLOM is a law student at Monash University.