: Defensive homicide benefits family violence victims

Defensive homicide benefits family violence victims

Jake Collom

In 2005 defensive homicide was added to the Crimes Act 1958 (Vic) as an alternative verdict to murder. This new offence was intended to be applied predominantly in cases of family violence motivated killing where the accused believed, unreasonably, that the killing was necessary in self defence.

For early advocates of the new offence, the special provision had apparently failed to realise its intended purpose (Sarah Capper and Mary Crooks, executive director of the Victorian Women's Trust, 'New homicide laws have proved indefensible', The Age, 23 May 2010). Family violence victims, typically women, did not appear to be benefiting whereas, paradoxically, the offence provided an alternative to murder for male victims of male violence. The Department of Justice Review of Defensive Homicide 2010 found that only two of the 13 cases relying on defensive homicide involved family violence. Only one of those two cases involved a woman, R v Middendorp [2010] VSC 202. This led to suggestions that defensive homicide be abolished ('Young male killers using defence law', The Age, 8 August 2010).

However, the recent case of R v Creamer [2011] 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 [2011] 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.

(2011) 36(3) AltLJ 212
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