R v Robbins

In this case the Court of Appeal considered the proper construction of s 304B Criminal Code 1899, which is a partial defence of killing for preservation in an abusive domestic relationship (the “partial defence”). The appellant was convicted of murder. Whilst the trial judge instructed the jury about self-defence, compulsion and provocation, her Honour declined to leave the partial defence open to the jury having ruled that it did not fairly arise on the evidence. The appellant appealed against his conviction on the basis that this ruling was erroneous. Justice Bond (with whom Morrison JA and Callaghan J agreed) held that the partial defence did not fairly arise on the evidence. There was no miscarriage of justice. The appeal was dismissed.

Morrison and Bond JJA and Callaghan J

17 February 2023

Background

The appellant was convicted of murdering his brother (the “deceased”). [2]. The deceased had been stabbed seven times with a knife during a physical confrontation. [2], [15]–[17]. The jury was instructed on defences including self-defence, compulsion and provocation. [18]. The appellant’s counsel applied for the jury to be directed on killing for preservation in an abusive domestic relationship, a partial defence available under the Criminal Code Act 1899 Sch 1 (the “Criminal Code”) s 304B. [5]. The partial defence, relevantly, provides as follows:

“304BKilling for preservation in an abusive domestic relationship

(1)A person who unlawfully kills another (the deceased) under circumstances that, but for the provisions of this section, would constitute murder, is guilty of manslaughter only, if—

(a)the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship; and

(b)the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death; and

(c)the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.

(2)An abusive domestic relationship is a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other.” [4].

The appellant had given an account about his relationship with the deceased in two respects: a version of events captured on police body warn camera shortly after the incident; and during his own evidence in the trial. [19]–[26]. The trial judge ruled that there was no evidence of an “abusive domestic relationship” between the appellant and the deceased, and as such, declined to instruct the jury about the partial defence. [5]. The appellant appealed against his conviction on the basis that this ruling was erroneous. [3].

Whether the partial defence of killing for preservation in an abusive domestic relationship fairly arose on the evidence

It was common ground that the relationship between the appellant and the deceased was a domestic relationship: see Criminal Code s 1 (definition of “domestic relationship”). [28]. The appeal turned on whether the evidence fairly raised a case that the relationship was one that there was a “history of acts of serious domestic violence committed be either of them against the other”. [28]. The text and context of subsection (2) which defines an “abusive domestic relationship” suggests that there must be evidence before the tribunal of fact which shows a previous tendency by either to engage in acts of serious domestic violence repeatedly or habitually against the other. [29]–[32].

Justice Bond (with whom Morrison JA and Callaghan J agreed) held that there was no error in the trial judge’s ruling. [32]. Whilst it was apparent that the appellant had a “low opinion” of the deceased having expressed a number of conclusions about his character and his tendency towards violence, there was no evidence before the tribunal of fact which established a basis for those conclusions. [35]. The appellant gave evidence about some specific examples of the deceased assaulting their father; however, it could not be regarded as behaviour towards the appellant in the circumstances of this case: see s 8(1) Domestic and Family Violence Protection Act 2012 (definition of “domestic violence”). [37].

The evidence was limited to the proposition that the deceased was verbally abusive to their father, to the appellant and to their other brother. [37]. Justice Bond (with whom Morrison JA and Callaghan J agreed) observed that whilst in some circumstances verbal abuse can amount to emotional or psychological abuse, threatening behaviour or coercive control, the bare statement that there was verbal abuse is insufficient. [39]. There must be an evidential foundation for that conclusion. [39]. Such a bare statement also does not put the tribunal of fact in a position to assess whether the verbal abuse could be characterised as “serious domestic violence” (emphasis added). [40].

Disposition

In the result, the appeal was dismissed. [1], [42]–[43].

D Kerr