Chapter 10
Is a partial defence justified?

A specific homicide offence

10.96At present in New Zealand, culpable homicide is either murder or manslaughter931 unless it is infanticide, which is New Zealand’s single specific homicide offence.932 A more contemporary example of a specific homicide offence is Victoria’s now-repealed defensive homicide.
10.97Creation of a new specific homicide offence may be an alternative way for the law to recognise reduced culpability for homicide. Such an offence could include any of the elements intended for a partial defence and reflect reduced culpability by setting a lower maximum penalty than applies to murder.933 Like manslaughter, a specific offence could also operate as an alternative verdict so that a defendant charged with murder might instead be convicted of the specific offence; as might a defendant charged with manslaughter, if the maximum penalty was lower. As partial defences and specific offences both operate to recognise reduced culpability, the merits and drawbacks canvassed above would largely apply also to a separate homicide offence.

Defensive homicide

10.98The offence of defensive homicide was introduced in Victoria in 2005 in response to the VLRC’s recommendation for a partial defence of excessive self-defence. To have found a person guilty of defensive homicide a jury must have been satisfied beyond reasonable doubt that:934

10.99The offence carried the same maximum penalty as manslaughter in Victoria: 20 years’ imprisonment.

10.100Victoria decided to introduce defensive homicide rather than a partial defence to murder, because a separate offence would make it clear to the sentencing judge on what basis a verdict was reached, thus enabling imposition of a sentence that accurately reflected the crime.935 If a partial defence were introduced, the basis for the jury’s verdict would not be clear, and it would be up to the judge to decide the basis on which to sentence.936

10.101The other advantages of a specific offence identified in Victoria were that:

10.102Defensive homicide proved problematic in practice, however, and for the reasons outlined in Chapter 4, it was repealed in 2014.940

Is a separate offence warranted in New Zealand?Top

10.103As a general principle, offences should be general rather than context or victim-specific. New Zealand’s Crimes Act largely reflects this approach. In a review of crimes against the person, the Law Commission noted the need to guard against the “risk of ad hoc specific offences being randomly inserted on to the statute book, every time an issue arises that causes political or public concern”.941 Specific offences should only be recommended if there is a compelling rationale.942 While context-specific offences can be helpful from a labelling perspective, the Commission has been sceptical of specific offences that capture conduct that could be adequately covered by generic offences, because:943
10.104The Legislation Advisory Committee Guidelines provide that a new offence can only be justified if it can be shown that:944
10.105Accordingly, the Commission’s approach is to recommend a specific offence only where the case is sufficiently strong to overcome these issues, such as where there is a clear gap in the law.945
10.106Few submitters supported introduction of a specific offence. The small number who did noted a separate offence might achieve better labelling and enable more tailored penalties but would in practice function much like a partial defence and, therefore, achieve similar ends and pose similar problems.946 The Public Defence Service observed that the question of whether a separate offence is preferable is largely philosophical.
10.107While we can identify some practical advantages of a specific offence over a partial defence, we are unconvinced they are sufficiently compelling to recommend a specific homicide offence targeted at victims of family violence who kill abusers. We agree with the concern expressed by some that, where the policy objective is to recognise reduced culpability of offenders in certain circumstances, creation of a new offence may send a confusing message.947
931Crimes Act 1961, s 160(3).
932The law of infanticide in New Zealand has not been reviewed recently and infanticide is a controversial offence in the western world. See PJ Dean “Child Homicide and Infanticide in New Zealand” (2004) 27(4) Int J Law Psychiatry 339; and Eric Vallillee “Deconstructing Infanticide” (2015) 5(4) Western Journal of Legal Studies 1.
933We consider the impact of the three strikes law on sentencing for murder and manslaughter convictions in the following chapter. We note that if the three strikes law remains unchanged, a separate homicide offence with a maximum penalty less than life imprisonment could potentially lead to a significantly different result if a defendant is convicted of that offence rather than the offences of murder or manslaughter. However we consider it preferable to focus directly on problematic aspects of the three strikes law rather than to propose a specific homicide offence as a “work-around”.
934Crimes Act 1958 (Vic), s 9AD (repealed).
935See speech during second reading by Attorney-General Hulls: (6 October 2005) VicPD LA 1351. See also Kate Fitz-Gibbon Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective (Palgrave Macmillan, Hampshire, 2014) at 123.
936Victorian Department of Justice, above n 860, at 25.
937Victorian Department of Justice, above n 860, at 24; and Fitz-Gibbon, above n 935, at 122–123. Although, as we have noted, where a defendant is charged with murder, a jury already has the option of convicting of manslaughter even absent a partial defence or separate offence, and evidence that supports a claim of self-defence may also tend to support a claim of lack of intent, which may result in a conviction for manslaughter.
938Victorian Department of Justice, above n 860, at 26. Some commentators, however, argue, to the contrary, that creation of a separate offence would unduly complicate the law and trials by adding to the number of matters a jury must consider: Wasik, above n 800, at 526.
939Victorian Department of Justice, above n 860, at 41.
940Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic).
941Law Commission Review of Part 8 of the Crimes Act 1961 : Crimes Against the Person (NZLC R111, 2009).
942Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.17].
943Law Commission, above n 941, at 30–31.
944Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation (2014) at ch 1.
945For further discussion see Law Commission, above n 941, at 30–31; and Law Commission, above n 942, at [8.32]–[8.36].
946A specific offence might more reliably ensure sentences reflect reduced culpability. A manslaughter conviction leaves a person at least liable to a life sentence, even if that is unlikely to be imposed in sympathetic cases. This was noted in the 1991 Report of the Crimes Consultative Committee, which observed that abolition of infanticide “would significantly increase the potential penalty for this class of offender, although it is plain enough that a degree of leniency would continue to be extended in practice”: Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee (Crimes Consultative Committee, Wellington, 1991) at 54. See AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at 593.  
947Wasik, above n 800, at 526.