Is a partial defence justified?
Arguments against a partial defence
10.35In assessing the arguments in favour of partial defences we have, necessarily, addressed many of the counter-arguments already, but there are four stand-alone arguments against partial defences that warrant mention.
Partial defences tend to be co-extensive with mandatory sentencing
10.36As highlighted throughout this part, with few exceptions, partial defences go hand in hand with mandatory sentencing for murder. Law reform bodies here and overseas have noted the mandatory penalty’s historical co-extensiveness with partial defences, and jurisdictions where mandatory sentencing has been abolished have, in the main, found that to point against partial defences. Two law reform bodies to have recommended against abolition of partial defences, the Law Commission of England and Wales and the Queensland Law Reform Commission, were working on the basis that the mandatory sentence for murder was not open for reform, and that was highly relevant to their recommendations.
Partial defences are anomalousTop
10.37For other crimes, if the elements of an offence are proved, that is sufficient to convict, and differences in the seriousness of particular cases are addressed at sentencing. Culpable homicide is the only kind of crime where, despite proof of the elements of murder, a person may still be convicted of another less serious offence (manslaughter or, in relevant cases, infanticide) if a partial defence applies. These are cases where the defendant intentionally caused death but extenuating circumstances are seen to justify a description of culpability or sentencing consequences other than those that follow a murder conviction. Thus, the Law Commission of England and Wales has described the idea of a partial defence as “something of a misnomer”, better understood as “the way that the law has created space for discretion in sentencing in murder cases”. Despite this, some suggest a partial defence model could be applied beyond homicide, while others resist the idea partial defences are anomalous just because they are unique to the law of homicide.
Partial defences are not well suited to taking account of mitigating circumstancesTop
10.38A compelling argument, which has considerable practical significance and was reviewed at length by this Commission in 2007, is that partial defences are a second-best way to take account of mitigating circumstances.
10.39One reason for this is that a wide range of circumstances may mitigate a defendant’s culpability, and unless it is suggested there should be a partial defence for every such circumstance, there will inevitably be arbitrariness in which mitigating factors are singled out for recognition via a partial defence.
10.40Partial defences also reduce complex issues to binary inquiries. They require a jury to decide whether a defendant fits the criteria for mitigation as a “yes or no” question. This may mean mitigating circumstances are excluded from consideration at sentencing, if a jury considers the defendant does not quite come within the partial defence, or that “undesirable constraints” are placed on the presentation of evidence at trial, partly because trials are adversarial and set up to “generate a ‘winner’ and a ‘loser’”. Issues that turn on matters of degree are therefore not well served, and there is a strong argument that it is preferable for evidence of mitigating circumstances to be dealt with through the more inquisitorial and holistic sentencing process. As the Law Commission of England and Wales has said:
By making evidence of diminished responsibility relevant to verdict, when (as in cases of second degree murder) it could simply be made relevant to sentence, one would needlessly force experts to distort the relevance of their evidence. Likewise, by making evidence of provocation relevant to verdict, one forces the jury to work with only a partial picture of the context in which the provocation was alleged to have been given, a partial picture largely provided (usually uncontested) by D. These drawbacks may be something that we must live with when the verdict would otherwise entail the passing of an inappropriate mandatory sentence but they should not be tolerated outside that context.
Partial defences can have undesirable or perverse effectsTop
10.41In addition to the risk of artificially rigid presentation of evidence, partial defences can have other undesirable effects. One, which we have noted, is the risk of compromise pleas and verdicts. Another is complexity for juries, which, in homicide cases, must in any event grapple with difficult concepts and evidence.
10.42In the present context, two additional potential perversities should be noted. First, partial defences can undermine the operation of self-defence. This was noted by the Victorian Department of Justice when it reviewed the operation, and recommended repeal, of defensive homicide in that jurisdiction. The risk has also been acknowledged by other law reform bodies. Second, partial defences can lead to unintended consequences, particularly the excusing of conduct by “undeserving” defendants. Victoria’s defensive homicide is a clear example of this in practice – it was primarily used by violent men.