Chapter 10
Is a partial defence justified?

Arguments for a partial defence

10.11The arguments in favour of partial defences, while inter-related, generally fall into one of the following categories:

We assess these arguments, in turn, below.

Partial defences promote fair labelling

10.12In respect of homicide, this argument rests, at its most fundamental, on the premise that, for some intentional killings, “murder” is not the right ascription and the law should permit such killings to be categorised as manslaughter.783 This argument does not focus on the practical effects of a murder conviction but rather on how certain killings should be regarded and categorised.
10.13James Chalmers and Fiona Leverick have argued that labels applied by the law may be important both to describe and to differentiate criminal conduct.784 Some differentiations, like the distinction between murder and manslaughter, are themselves descriptive, but ideally descriptive labels should be “intelligible on a freestanding basis”.785 Labelling may be important in the interests of fairness to offenders and to communicate with offenders, victims, the public and agencies within and outside the criminal justice system.786
10.14Labelling is relevant across the criminal law, but it is often invoked in connection with homicide, perhaps because of the particular stigma and condemnation of a “murder” conviction. Andrew Ashworth has said that “the distinction between murder and manslaughter is significant in terms of its declaratory meaning and the stigma for the offender” and that partial defences may be warranted because juries and the public expect significant forms of mitigation to reflect that distinction.787 “Murder”, on this view, should be reserved for and applied to only the “most heinous” killings.788
10.15While labelling is important and fair labelling is in itself unobjectionable,789 what amounts to a fair label is complex. Any system of offence categorisation will involve competing considerations and some compromise,790 and the significance of labels may depend on the audience.791 In the context of homicide, it should not be presumed that the public necessarily looks more benignly on people convicted of manslaughter. The Law Commission said in 2007 that:792

… it is in fact arguable that the stigma attached to any given homicide varies depending on the circumstances of the case as much as the name of the crime. For example, a drunk driver who crashes and kills the occupants of another car will be convicted of manslaughter, which reflects lack of criminal intent, but not the public abhorrence of this kind of crime; whereas an elderly spouse who kills his failing partner, by consent or believing that it is in her best interests, is dubbed a murderer. We consider that the argument might plausibly be made that some murders (e.g. mercy killing) may be more sympathetically regarded by society than some instances of manslaughter that are widely regarded as particularly abhorrent.

10.16The way the public understands a sentence in a given case is likely to be more complex than the visceral connotations of the offence label viewed in isolation. We are not aware of any particular public outcry at the sentence imposed by the Court of Appeal in R v Wihongi, for example, even if the case was remarked on.793
10.17The complexity involved in analysing what is a fair label is readily apparent in the case of murder and manslaughter when the question of partial defences arises. Generally, murder describes intentional killings, and manslaughter describes unintentional killings.794 Partial defences carve out exceptions to that distinction based on mitigating circumstances and confer a generic manslaughter label despite the presence of murderous intent. Partial defences are therefore a blunt tool for labelling purposes.795 As the Law Reform Commission of Canada (since disestablished) said:796

[E]ven if ‘murder’ seems an inappropriate term for killing under provocation, ‘manslaughter’ is surely (with all due respect to the common law) as singularly inappropriate a term for killing with intent (which killing under provocation is).

10.18The Law Commission of England and Wales noted that deployment of fair labelling as a rationale for partial defences may conflate questions of offence categorisation and punishment797 and that, when it comes to partial defences, fair labelling is secondary to the “sentence mitigation principle”.798 That Commission has said:799

The secondary importance of labelling considerations explains, in part, why partial defences do not reduce other crimes that carry discretionary maximum sentences, such as attempted murder, to lesser included offences, such as, in appropriate cases, wounding with intent to do grievous bodily harm. We found it significant that those who thought labelling considerations ought to have played more of a role in structuring our proposals for partial defences to homicide, did not extend the logic of their arguments to those homicide-related crimes that have lesser included offences.

10.19While labels may be important, therefore, it does not follow that fair labelling is well served by partial defences. It may be better served by a separate offence, tailored to a subset of homicides, but even this will not get around the problem of arbitrariness. If there are many circumstances that may mitigate culpability for homicide, should they not all be able to be taken into account in a meaningful way? This is where, as we discuss below, sentencing seems to have a procedural advantage.

The enhanced role of the juryTop

10.20It has been argued that, when a jury returns a verdict, it is not deciding an abstract question but rather how a person ought to be held responsible. This involves both legal and moral considerations so that, in some cases:800

… it may be that the greater offence is made out in law, but the jury feels that it is morally inappropriate to convict. Here, the jury will be tempted to convict of a lesser offence or, perhaps more likely, to acquit “perversely.” This tendency will be seen by some as an example of the jury’s usurping the function of the judge, and by others as the jury’s taking steps to nullify oppressive law.

10.21To the extent jury nullification may sometimes be a reality, some consider the law should squarely accommodate these kinds of moral assessments rather than force juries to make binary choices between murder and acquittal.801 Martin Wasik says there is “something to be said for allowing the jury the option of a lesser offence in some cases rather than forcing them to choose between [conviction for the offence charged and acquittal] when neither reflects their true finding”, which might “[reduce] the temptation for the jury to acquit perversely in cases where the strict application of the law would lead to a conviction for a morally inappropriate offence”.802 On this view, partial defences may be desirable not just for individual defendants but in the overall interests of justice. Lord Bingham has said:803

The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged.

10.22There is a risk of a “perverse” outcome in any case if a jury acquits on grounds of sympathy rather than law, and a middle-ground offence could avoid perversity in many cases. The risk of perverse outcomes is, in other words, not unique to homicide. Even for homicide, partial defences can address this risk only to the extent they apply. There will not be a partial defence for every potentially mitigating circumstance.

10.23Partial defences may also lead to a perversity that disadvantages defendants in the form of compromise verdicts. In a trial situation, if a jury cannot agree whether a defendant should be acquitted on the basis of self-defence, for example, a partial defence may provide an attractive pathway to a middle-ground manslaughter verdict.804 On the face of it, this risk is greatest with excessive self-defence, as we discuss below, but it could attach to any partial defence, and compromise outcomes may also arise in plea negotiations.805 In the present context, where self-defence may be the appropriate defence in many cases,806 an increased risk of compromise verdicts and pleas would be a particular concern.
10.24A further element of this argument is that significant questions of mitigation should be left to juries. It is argued this can legitimise lenient sentences since there will be community endorsement of the relevant mitigating circumstances.807 A jury decision on mitigation may also assist the sentencing judge by sending a clear message on the jury’s view of culpability, thus promoting sentencing consistency and fairness.808

10.25One difficulty with arguments about the acceptability of consequences that follow convictions (like sentencing) is that they involve speculation. Somewhat like fair labelling, there is intuitive force in the idea a jury verdict may render a sentence more comprehensible or legitimate, but matters are probably much more complex.

10.26Further, although in jury trial cases factual questions are mainly for the jury, judges may still make findings of fact for sentencing. A guilty verdict tells the judge the jury found the elements of the offence proved but not how it reached that conclusion. Thus, while a judge “must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt”,809 there may be other matters still to make findings on. An example in the cases we have reviewed is the circumstances surrounding the homicide. Was the offender threatened before he or she inflicted the fatal injury? Were they frightened? Angry?
10.27Even if a manslaughter verdict is returned after a defendant has relied on a partial defence, the judge will have to infer whether the verdict reflected acceptance of the defence or a finding of lack of intent,810 and as the Commission noted in 2007, if a partial defence is run and rejected, “little if anything is articulated about the way in which the issues have been dealt with”811 – to the public or the sentencing judge.

Partial defences improve charging practiceTop

10.28Some argue that partial defences can encourage better charging practice. It is argued that, if the prosecution is guided by a partial defence when making decisions about when a charge of manslaughter should be preferred to murder, there would be less risk of overcharging. Defendants would have more leverage in plea negotiations and may feel safer defending a murder charge knowing their defence need not be “all or nothing”.812 There may also be positive public resource implications if less money were expended on murder trials.813

10.29There is a degree of circularity here in the assumption of a problem with charging practice and the implication that defendants should have scope to negotiate a lesser charge even when the evidence is that they killed with murderous intent. In any event, as we have discussed, we do not think the evidence from our case review discloses an “overcharging” problem.

10.30Further, just as a jury may take a middle ground verdict option if one is presented, a defendant who has the opportunity to plead guilty to a lesser offence may take it rather than proceed to trial on a murder charge despite the possibility of a better outcome (acquittal) at trial.814 In other words, while a middle ground option may relieve some pressure, it does not follow that the defendant will necessarily ultimately benefit.

Partial defences improve sentencing decisionsTop

10.31FVDRC suggests that a partial defence is required to achieve fair sentencing outcomes for victims of family violence who are currently convicted or at risk of being convicted of murder. Even if the presumption of life imprisonment is rebutted, a sentence for murder is likely to be higher than for manslaughter – whatever the facts of the offending.815 The FVDRC compares sentences in cases where the conviction was for manslaughter (particularly manslaughter cases where provocation was successfully run) with those where the conviction was for murder.
10.32There is no doubt the sentences in the two most recent murder cases (R v Wihongi and R v Rihia), where provocation was not run or not available,816 are longer than those imposed in the manslaughter cases, but it does not follow that this points to a need for a partial defence.
10.33As we discussed in Chapter 9, it cannot be assumed there is no material difference in the culpability or risk between offenders convicted of murder and those convicted of manslaughter or that the murder convictions are in themselves evidence something went wrong. Nor is it valid to argue that the murder sentences were too high because they were longer than sentences in manslaughter cases where provocation was successfully run. This presumes, rather than illuminates, the merit of a partial defence and does not engage with the policy behind the repeal of provocation. In its 2007 Report, the Law Commission said,817 in a passage cited with approval in R v Hamidzadeh,818 that:

… if provocation is repealed on the policy basis that the defendants who rely upon it are not inherently more deserving of favourable treatment than many others who are presently convicted of murder, then it would make no sense to endorse and take steps to ensure an ongoing lower tariff simply for provocation. It may be that a more flexible approach to sentencing for murder ought to be taken to allow better recognition of the wide range of mitigating factors (including provocation) that can be present in cases of intentional killing, but that is a different issue.

10.34Even if there were an unwarranted discrepancy between sentences for murder and sentences for manslaughter in this area, it would not follow that the structure of the law was the problem.819 If the issue is sentencing practice, it should be considered by looking at whether the law is structured, and the criminal justice system has the resources, for sentencing to be approached in a way that is flexible, responsive and fair. We discuss issues around sentencing in Chapter 11.
783On fair labelling generally, see Andrew Ashworth and Jeremy Horder Principles of Criminal Law (7th ed, Oxford University Press, Oxford, 2013) at 77–79.
784James Chalmers and Fiona Leverick “Fair Labelling in Criminal Law” (2008) 71 MLR 217 at 220–222.
785A description of a homicide as manslaughter, Chalmers and Leverick note, at 222, “draws explanatory value from the fact that it has in some way been differentiated from murder”.
786At 224–237.
787Andrew Ashworth “Reforming the Law of Murder” [1990] Crim L Rev 75 at 83.
788Ashworth and Horder, above n 783, at 282.
789Glanville Williams “Convictions and Fair Labelling” (1983) 42 CLJ 85 at 86; and Chalmers and Leverick, above n 784, at 246.
790Chalmers and Leverick note, for example, that a balance must be struck between particularism and breadth, and that some categorisations of criminal offending may be driven by pragmatic considerations. An example is the greater likelihood of securing convictions for particularised homicide offences (like dangerous driving causing death and corporate killing) where juries are reluctant to convict of manslaughter for the same conduct): Chalmers and Leverick, above n 784, at 239–240.
791Chalmers and Leverick suggest, at 237–239, that for people with no particular legal knowledge, the descriptive aspect of a label is important, whereas for people within the justice system (like prosecutors and judges), it is the differentiation of offences and offenders that matters, and pure descriptions are secondary.
792Law Commission The Partial Defence of Provocation (NZLC R98, 2007) at 53 (footnotes omitted).
793The Commission made a similar observation in the 2007 Report, at 52–53, about the sentence imposed in the euthanasia case of R v Law (2002) 19 CRNZ 5 (HC).
794Law Commission, above n 792, at 53. See also Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 9; and Law Reform Commission of Western Australia, above n 782, at 218.
795Law Commission, above n 792, at 54. Writing in the English context, Nicola Lacey suggests that, if the mandatory penalty were abolished in that jurisdiction, “one would have to ask hard questions about the real importance of labelling homicides as ‘murder’ and ‘manslaughter’, and about the relationship between labelling and grading … If labelling is really important, one might argue that we should then reconstruct voluntary manslaughter in relation to a discrete set of labels: provoked killing; killing under duress; killing in panic; mercy killing and so on.”: Nicola Lacey “Partial Defences to Homicide: Questions of Power and Principle in Imperfect and Less Imperfect Worlds …” in Andrew Ashworth and Barry Mitchell (eds) Rethinking English Homicide Law (Oxford University Press, Oxford, 2000) 107 at 130.
796Law Reform Commission of Canada Homicide (Working Paper No 33, 1984) at 74. See also Law Reform Commission of Western Australia, above n 782, at 218.
797See Law Commission of England and Wales Murder, Manslaughter and Infanticide (Law Com No 304, 2006) at 9. Where the mandatory penalty subsists, the Commission noted, at 48, “[m]atters of verdict and sentence are effectively fused in murder cases. Partial defences affect the verdict of murder, and only that verdict, because a verdict of murder is the only one that carries in its wake a mandatory sentence of such gravity (life imprisonment).”
798At 48.
799At 48 (footnotes omitted).
800Martin Wasik “Partial Excuses in the Criminal Law” (1982) 45 MLR 516 at 518–520 (footnotes omitted).
801At 520. See also Ashworth and Horder, above n 783, at 251. Also see the discussion above at paragraphs [9.32]–[9.38].
802At 520.
803R v Coutts [2006] UKHL 39, [2006] 1 WLR 2154 at [12].
804Victorian Law Reform Commission, above n 794, at 102–103; Michelle Edgely and Elena Marchetti “Women Who Kill Their Abusers: How Queensland’s New Abusive Domestic Relationships Defence Continues to Ignore Reality” (2011) 13 Flinders LJ 125 at 141; Select Committee on the Partial Defence of Provocation The partial defence of provocation (New South Wales Legislative Council 2013) at 61; and Law Commission of England and Wales Partial Defences to Murder (Law Com No 290, August 2004) at 79.
805Elizabeth Sheehy, Julie Stubbs and Julia Tolmie “Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand” (2012) 34 Syd L Rev 467 at 492. See also Victoria Department of Justice, above n 782, at 27 and 30. The Department of Justice considered defensive homicide may have been “operating to distort the role of self-defence” and detracting from a proper focus on self-defence, which, the Department considered, “should be the primary focus” in the context of defensively motivated homicides by victims of family violence.
806Family Violence Death Review Committee Fourth Annual Report: January 2013 to December 2013 (Health Quality & Safety Commission, June 2014) at 119.
807Law Commission, above n 792, at 52.
808At 79–80.
809Sentencing Act 2002, s 24(1)(b).
810See, for example, R v Erstich (2002) 19 CRNZ 419 (CA) at [2].
811Law Commission, above n 792, at 79.
812Victorian Law Reform Commission, above n 794, at xxix and 109.
813At 8–9.
814Sheehy, Stubbs and Tolmie, above n 805, at 489.
815Family Violence Death Review Committee, above n 806, at 121.
816As we noted in Chapter 9, provocation was in law available, but not run, in R v Wihongi, but the offending in R v Rihia post-dated repeal and so the defendant in that case could have sought to rely on the partial defence. See paragraph [9.48]. See also R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010 [Wihongi (HC)]; R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 [Wihongi (CA)]; R v Wihongi [2012] NZSC 12 [Wihongi (SC)]; and R v Rihia [2012] NZHC 2720.
817Law Commission, above n 792, at 82.
818R v Hamidzadeh [2012] NZCA 550, [2013] 1 NZLR 369 at [44]. See also Hamidzadeh v R [2013] NZSC 33, [2013] 2 NZLR 137 (declining leave to appeal to the Supreme Court).
819Law Commission, above n 792, at 82.