Is a partial defence justified?
A specific homicide offence
10.96At present in New Zealand, culpable homicide is either murder or manslaughter unless it is infanticide, which is New Zealand’s single specific homicide offence. A more contemporary example of a specific homicide offence is Victoria’s now-repealed defensive homicide.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. 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.
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:
- the defendant killed in circumstances that would otherwise constitute murder; but
- the defendant was not guilty of murder because he or she believed his or her conduct to be necessary to defend himself or herself against the infliction of death or really serious injury; and
- the defendant did not have reasonable grounds for that belief.
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. 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.
10.101The other advantages of a specific offence identified in Victoria were that:
- a separate homicide offence provides juries and sentencing judges with more options, in a self-defence case than the “all or nothing” choice between murder and acquittal;
- a new offence would involve fewer complexities than a partial defence and be easier for a judge to explain to a jury and for a jury to apply; and
- a separate offence means that data on excessive self-defence is easily identifiable, thereby enabling a more effective evaluation of its operation.
10.102Defensive homicide proved problematic in practice, however, and for the reasons outlined in Chapter 4, it was repealed in 2014.
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”. Specific offences should only be recommended if there is a compelling rationale. 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:
- they broaden prosecutorial discretion and can result in inconsistent charging practice;
- they single out one aggravating or mitigating factor among the many possible factors that may be present in any given case, giving rise to arbitrary disparities across different offending; and
- the overuse of specific offences could result in a patchwork of offences without logical or coherent structure.
10.104The Legislation Advisory Committee Guidelines provide that a new offence can only be justified if it can be shown that:
- it will successfully address the policy objectives; and
- those objectives cannot be achieved equally or better by other mechanisms.
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.
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. 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.