Chapter 10
Is a partial defence justified?

Conclusions and recommendation

10.108In this chapter we have considered the in-principle case for and against a partial defence or a separate homicide offence and the form any such defence or offence might take. We have sought to review the arguments and the options fairly and comprehensively, but for the following six reasons, we do not recommend that a partial defence or a specific offence be introduced in New Zealand:

10.109The centrepiece of our recommended legislative reforms is to make self-defence more accessible to victims of family violence who kill their abusers. Amendments to the Crimes Act will clarify that, in the context of family violence, self-defence may apply in the absence of an imminent threat. Whether the force used was reasonable will remain a question of fact for the jury.

10.110Cases where an offender has a history of being abused by the deceased but there is no viable claim of self-defence will involve some culpability, but it might be mitigated because of the history of abuse. In such cases, our view is that sentencing provides a better avenue than partial defences for addressing variation in homicide offending. This presumes the sentencing process is able to properly take into account the various factors that might mitigate culpability, however. In the next chapter, we consider the adequacy of New Zealand’s sentencing law in this context.