SA woman found guilty of defensive homicide in Oz

Eileen Creamer, a 52-year-old former South African, has become the first woman in the state of Victoria, Australia, to be convicted of defensive homicide.

Creamer had been charged in the Victoria Supreme Court of murdering her husband, David Creamer, and did not dispute that she had stabbed him in the stomach and beaten him over the head with a knobkerrie.

Her case has attracted headlines in Australia not only because of the claims of sex and scandal but through interest in the charge of defensive homicide, which had been introduced in November 2005 to assist battered women.

Creamer has been remanded in custody until her sentencing, which can be as much as 20 years.

The incident
It occurred in the Victorian city of Moe on February 2 2008.

Having spent the night with her lover, Creamer returned home to find David in an ugly mood and demanding to know where she had been.

She said that she had come under attack as soon as she walked through the door.

She said that her husband was speaking to two men at the back door and when he intimated that she would be having sex with them that evening she told him that there was no ways that she was going to do it.

He then began insulting her calling her “a half-caste white bastard” after which she snapped and lost all self-control.

She told the court: “I was scared. David was so angry. When he said he was going to finish me off, I was scared for my life.”

She told the court that David was always the one in control.

Creamer does not however dispute that she stabbed him and beat him over the head with a knobkerrie.

Background
David and Eileen were married in South Africa before moving to New Zealand and then Australia.

Creamer’s barrister, Jane Dixon SC, said that her client does not deny killing her husband but that jurors should consider the alternative verdicts to murder of defensive homicide and manslaughter.

In this regard Dixon told the court of a woman who had been constantly pestered by her husband to get involved in group sex and threesomes.

Justice Paul Coghlan heard how the deceased had contacted a website called Club Insatiable to get them involved in group sex and a gang-bang and even posted revealing photographs of her on the internet.

Some of the photographs did not even include her head.

She did however admit that she had contacted men through a local newspaper personals column but said that this was because she was lonely and stuck in the house while her husband visited other women.

The court also heard that Creamer sent a used condom to one of her husband’s lovers and sought the help of a psychic to try and help win him back.

According to prosecutor Tom Gyorffy, the couple had an open marriage and that they had both had a number of lovers they had met through the internet.

He said the reason why she killed her husband was that she realised he planned to return to his first wife in South Africa.

Gyorffy urged jurors to find Creamer guilty of murder pointing out the important differences between the versions she gave of the killing to psychologists and what she had told the court.

“So what the prosecution submits to you is that the alternative view to domestic violence is the motive that we put forward, that Eileen Creamer was so obsessed with keeping David Creamer, her husband, that if she could not have him nobody else could.”

The Supreme Court jury acquitted her of murder but found her guilty of defensive homicide.

Previously all of the 13 people convicted of the crime have been men, which is interesting because the charge was introduced primarily to assist battered women.

Defensive homicide
As a result of recommendations by the Law Reform Commission for Victoria, the Victorian legislature introduced new laws regarding self-defence.

Among them, a new offence of defensive homicide was created where the accused’s belief in the need for the force applied in self-defence was unreasonable, s/he may be convicted of an offence less serious than murder.

It carries a penalty of up to 20 years’ imprisonment.

It was introduced by the Crimes Homicide Bill Of 2005 which amended the Crimes Act of 1958.

“Section 9AD. Defensive homicide
A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) and liable to level-3 imprisonment (20 years maximum) if he or she did not have reasonable grounds for the belief referred to in that section.”

Section 9AH sets out the reasonable grounds for the belief in circumstances where family violence is alleged.

It is unusual because in the ordinary course most legal systems require the following for self-defence: the attack must be commenced or imminent, against a legally recognised interest and unlawful while the defence must be necessary to avert the attack, reasonable in terms of the amount of force used and directed against the attacker.

It is a ground of justification for the act making what would otherwise have been unlawful, lawful in those circumstances ie a complete defence: if regard is had to defensive homicide many of the requirements of self-defence are absent and replaced with separate criteria that will not gain the accused an acquittal but rather conviction on a lesser charge, which may still carry a stiff sentence.

It is however certainly worthwhile monitoring and authorities in Victoria should be given credit for offering a charge that offers a bridge between murder and manslaughter in circumstances where compelling grounds for a lesser sentence exists but the act complained of would ordinarily constitute murder.

South Africa
In South Africa — without this option — Creamer would most likely have been found guilty of murder.

I say this for the following reasons: the charge of defensive homicide does not exist in our law and the difference between murder and culpable homicide lies in the intention of the perpetrator. In this case there is no question of a negligent killing.

Could she have raised other defences? Certainly, but not self-defence, which — as set out above — does not appear applicable to this case. Not only are certain elements missing but the Australian court also had this option available to it.

There is no mention of an imminent attack to which she responded.

Her South African legal team would probably go for the fact that she was lacking the requisite mens rea (excludes intention) for murder rather than a grounds of justification eg self-defence (excludes unlawfulness).

In this instance most likely that she was suffering from temporary insanity at the time the incident took place.

It is a complete defence in South African law but carries an enormous burden for the accused during the trial.