Plea Bargaining and Defensive Homicide: A Discussion
Dr Kate Fitz-Gibbon and Dr Asher Flynn
by Asher Flynn and Kate Fitz-Gibbon
In November 2005, the Victorian government introduced a new offence – defensive homicide – which was suggested as providing women who killed after experiencing prolonged family violence with a half-way outcome between murder and (the sometimes inaccessible) self-defence. The offence was introduced mainly in response to perceived failings of cases involving self-defence (i.e. Heather Osland) and the partial defence of provocation (i.e. James Ramage). Despite the former Government’s best intentions, defensive homicide has been used in ways significantly different to those anticipated, due largely to plea bargaining.
Plea bargaining involves a private discussion between the prosecution and defence on the charges, the facts of the case and/or the Crown’s sentencing submission. For example, reducing murder to defensive homicide, or withdrawing one charge to allow a guilty plea to fewer charges. Its primary aim is to arrive at a mutually acceptable agreement between the prosecution and defence, according to which the accused pleads guilty. This process is often justified for its potential efficiency benefits, as it offers a mechanism to save court costs and resources, while simultaneously sparing the parties involved from prolonged proceedings. But, the hidden nature of plea bargaining – not being recognised in or controlled by legislation, and no data kept on when or why plea bargaining occurs – limits our understanding of the process and can raise doubts over the legitimacy of the deals.
For an accused to plead guilty to defensive homicide, the prosecution must agree to withdraw any other homicide-related charges, including murder. When a trial occurs, after all the evidence is played out, the jury decide whether and on what homicide-related charge to convict. From 1 November 2005 until 26 July 2012, 16 of the 22 convictions of defensive homicide have involved a guilty plea. Therefore, in almost three-quarters of defensive homicide convictions, the decision to enter and accept a guilty plea has been made by the prosecution and the accused only. As a consequence, the public is left to trust that these parties have upheld the same judicial principles that would apply to a conviction after trial.
Defensive homicide applies when an accused believed – although unreasonably – that they needed to defend themselves or another person using force, and this resulted in the victim’s death. The offence may therefore be proved when a victim has behaved in a way, such as committing or threatening to commit an act of violence, which led the offender to unreasonably believe that lethal violence was necessary to defend themselves. However, in six of the 16 guilty plea convictions, it appears there was no prior violent exchange (physical or verbal) between the victim and offender.
Because these matters were resolved by guilty plea, the full circumstances surrounding the offence are not publicly available. This is concerning, because it means in at least six cases, it is impossible to tell if a more or less serious conviction may have been appropriate. This raises the risk that offenders’ convictions may not match their culpability, and that the public cannot then determine if these offenders were convicted and sentenced appropriately. We are also concerned because the private nature of plea bargaining makes it extremely difficult to understand how or why prosecution decisions are made, or to examine in any significant manner, whether the offence is working effectively and as intended.
Plea bargaining is an essential component of contemporary criminal justice systems, and its potential efficiency benefits indeed justify and necessitate its use. However because plea bargaining is not transparent to those outside the Victorian Department of Public Prosecutions (DPP), these deals involving the most serious form of criminal misconduct are shrouded in secrecy.
While we recognise that the DPP have some internal policies and provisions in place to ensure the appropriateness of any deals made, we ask whether, within the context of Victoria’s public and open justice system, these internal mechanisms are sufficient to compensate for the absence of any external transparency or data on plea deals.
If the DPP are satisfied their internal processes are sufficient and all plea deals are appropriate, then we ask, why not implement an external recording process to register when deals are made (in a similar way to the records kept detailing the number of guilty pleas entered annually)? Access to such statistics would allow us to examine how often and in which cases plea deals occur, and using this information, whether more accountability is needed in the decision-making process.
We welcome the Government’s review into defensive homicide, and hope this will provide a greater understanding of whether the law is, or can be altered, to operate in line with its original intentions. In accordance with the view of The Age editorial (27 June 2012), we are supportive of the review proceeding with caution and being “wary of throwing the baby out with the bathwater”. We hope that the review also leads to some consideration of the concerns surrounding the absence of transparency in plea bargaining which have been demonstrated in the operation of the offence. Indeed, we strongly believe that consideration should be given to creating a register of plea deals, to keep a transparent, external record of when deals are made. We look forward to reviewing the outcome of the review.
For a further discussion of defensive homicide and plea bargaining in Victoria, see: Asher Flynn and Kate Fitz-Gibbon ‘Bargaining with Justice’, Melbourne University Law Review, vol 35, no 3.
Dr Asher Flynn is a lecturer in the Department of Criminology at Monash University.
Dr Kate Fitz-Gibbon is a lecturer from the School of Humanities and Social Sciences at Deakin University.