Is a partial defence justified?
What would a partial defence look like?
10.43Bearing in mind the in-principle arguments for and against partial defences, we have considered what a partial defence aimed at victims of family violence would look like. This practical enquiry informs our view on whether a partial defence is justified.
10.44We have drawn on the Commission’s previous work, and in particular Some Criminal Defences with Particular Reference to Battered Defendants, and overseas law reform work, but there is no standard approach in this area. Other jurisdictions’ approaches vary depending on policy choices about what conduct is partially excusable and local context, including sentencing law and procedure, and whether and what partial defences already exist.
10.45Experience in other jurisdictions suggests that the essential focus of partial defences can be broken down into three categories. Each emphasises different elements, although there can be significant overlap:
- Defence-based partial defences – normally requiring an honest belief that the defendant’s actions were necessary to defend or preserve him or herself or another.
- Provocation-based partial defences – requiring a loss of control by the defendant, triggered by provocation sufficient to deprive a person of ordinary tolerance, in similar circumstances, of the power of self-control.
- Diminished capacity-based partial defences – requiring an abnormality of mental functioning that impaired the defendant’s capacity to understand events, to judge whether their actions are right or wrong, or to exercise self-control.
10.46We have also considered a fourth option of a trauma-based partial defence, which would focus on the trauma suffered by a defendant and their response to it.
10.47Below, we discuss each of the four types of partial defence, before commenting briefly on the difficulties presented by the question of whether any such defence should be general or limited to victims of family violence.
Defence-based partial defences
10.48Defence-based partial defences operate alongside self-defence to provide a middle tier of culpability where the defendant satisfies the subjective, but not the objective, element of self-defence, which is usually a requirement that the use of force must be reasonable.
10.49Among the submitters supportive of a defence-based partial defence were the Public Defence Service, the Auckland Coalition for the Safety of Women and Children and an academic. Others considered it preferable to reform self-defence to better accommodate family violence victims.
10.50Below, we discuss the merits of two examples of defence-based partial defences: excessive self-defence and killing for preservation in an abusive domestic relationship (killing for preservation). The specific offence of defensive homicide in Victoria (now repealed) has a similar focus to these partial defences. Given that it is a stand-alone offence, however, we have chosen to analyse the merits of this option separately at paragraph [10.98] below.
10.51In its 2001 Report, the Law Commission considered the merits of excessive self-defence, and while it favoured this partial defence over others, ultimately, it preferred a sentencing discretion for murder. The Commission considered a partial defence of excessive self-defence might be worded as follows:
It is a partial defence to a charge of murder (reducing the offence to manslaughter) if, in the defence of himself [or herself] or another, a person uses more force than it is reasonable to use in the circumstances as he [or she] believes them to be.
10.52As the Commission recognised, this defence would apply where a defendant intended to do something “lawful within limits”, unlike provocation and diminished responsibility, which apply where a defendant does something unlawful. A defendant who honestly believes they need to defend themselves but is mistaken about the level of force required to counter the threat is, arguably, morally less culpable than people who kill intentionally and should not be labelled a murderer. This convinced both the Victorian Law Reform Commission (VLRC) and the Law Reform Commission of Western Australia to recommend versions of this partial defence.
10.53In respect of victims of family violence, excessive self-defence may be more appropriate than a provocation or diminished capacity-type defence, as there is no need for a loss of control and the defendant’s actions are not treated as if they arise from a mental condition. Not all victims of family violence who kill their abusers will be acting defensively, however; some will be retaliating out of anger for what has been done to them. Excessive self-defence would therefore not apply in all cases. In fact, it is not clear that any of the four murder convictions identified in our case review would have benefited from a defence-based partial defence.
10.54There are problems with excessive self-defence, which have led courts in New Zealand, England, Canada and Australia to disavow the partial defence at common law. In New Zealand, the Court of Appeal recently considered excessive self-defence in McNaughton v R. Concluding that no such partial defence exists at common law, the Court noted there was “little statutory support” for excessive self-defence outside New South Wales, South Australia, Western Australia and a few American states (North Carolina, Massachusetts). The Court quoted the Supreme Court of Canada, which has stated, in R v Faid, that excessive self-defence:
… lacks any recognizable basis in principle, would require prolix and complicated jury charges and would encourage juries to reach compromise verdicts to the prejudice of either the accused or the Crown.
10.55In Australia, the Model Criminal Code Officers Committee rejected the reintroduction of excessive self-defence on the ground that it is inherently vague and would bring unnecessary complexity to the law, although the New Zealand Law Commission was not convinced excessive self-defence would involve the same complexities in this jurisdiction. Because excessive self-defence would sit alongside the complete defence of self-defence, it would not involve new concepts and would fit naturally into jury directions on self-defence.
10.56While the wording of the suggested provision in paragraph [10.51] above seems straightforward, there is an issue around how the jury decides what is “reasonable force” when determining whether a defendant should be acquitted or convicted of manslaughter (assuming the subjective limbs are met). Self-defence does not turn on fine distinctions. As discussed in Chapter 5, the courts do not apply a strict proportionality test, recognising that, when responding to a threat, “a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action”. If our recommendations in Part 2 are accepted and it is clarified that self-defence is not necessarily excluded where the degree of force used in defending a threat exceeds the degree of threatened force, it would be difficult for the jury to distinguish between self-defence and excessive self-defence. This could lead to compromise verdicts, with juries opting for the “middle ground” of manslaughter.
Killing for preservation
10.57Queensland’s partial defence of killing for preservation applies only to victims of family violence where the defendant believes their actions are necessary for their “preservation from death or grievous bodily harm”. The defence also requires reasonable grounds for the defendant’s subjective belief. In that respect, it is narrower than traditional formulations of excessive self-defence.
10.58The Queensland defence has been criticised on the basis that cases captured by the defence would, in other jurisdictions, result in complete acquittals on the basis of self-defence. In Queensland, self-defence is available only where a person is facing an immediate threat of harm or is being assaulted. Queensland also retains a mandatory sentence for murder, and the defence was introduced in response to concerns raised by the Queensland Law Reform Commission that, given the unsuitability of the partial defence of provocation, the circumstances of victims of family violence were unable to be considered in mitigation of the mandatory life penalty for murder. Rather than repeal provocation and the mandatory sentence (as in New Zealand), a separate partial defence was introduced to fill the gap where a defendant is responding to a threat of harm that is not immediate. Queensland’s legal context is, therefore, unique and not a wholly helpful comparator.
Provocation-based partial defencesTop
10.59Provocation-based partial defences do not require a defendant to be motivated by a need to protect him or herself or another from a threat. They apply where a defendant has lost control in the face of provocation.
10.60Among submitters, the Criminal Bar Association and the FVDRC favoured a partial defence based on loss of control or something akin to New South Wales’s “extreme provocation”, which we discuss below. The FVDRC recognised this would capture circumstances where the victim is retaliating but the behaviour is not defensive (although the FVDRC had a number of concerns about the detail of the New South Wales provision). Other submitters, including the New Zealand Law Society and the Public Defence Service, opposed any reintroduction of a provocation-based defence.
The traditional formulation
10.61Provocation-based partial defences vary from jurisdiction to jurisdiction, but a traditional formulation normally requires that:
(a) the defendant lost control;
(b) the loss of control was caused by provocation; and
(c) the provocation would have been sufficient to deprive a person with the same characteristics as the defendant, but a normal degree of tolerance or the ordinary person’s power of self-control, of the power of self-control.
10.62In New Zealand, provocation was relied on in five out of 11 cases involving victims of family violence between 2001 and 2009. Three of those cases resulted in a manslaughter verdict, which could be attributed to an accepted claim of provocation. In two cases, the defendant was convicted of murder. Since provocation was repealed, there has been one conviction for murder, which followed a guilty plea, and the facts of that case may have fit within a provocation-based defence. Accordingly, while the number of cases we have reviewed is too small to draw conclusions, the circumstances in which victims of family violence kill their abusers may, in some circumstances, come within the elements of a provocation-based defence.
10.63Provocation has historically been problematic, however, and was repealed in New Zealand in 2009. We do not attempt to explore the problems with the defence, which was considered in detail by the Law Commission in 2007. We note, however, that in the context of family violence, provocation is regarded as problematic for two reasons. First, the traditional version of the defence requires a sudden loss of control, but it is argued this does not reflect the reality of the experiences of victims of family violence, who may respond to prolonged abuse some time after the provocation has been endured. Second, provocation can operate to excuse perpetrators of family violence who kill their victims in unexceptional circumstances, such as relationship break-downs.
10.64While several jurisdictions have abolished provocation, others have reformed it in an attempt to address these problems. Reforms have focused on guarding against inappropriate reliance on provocation by excluding certain conduct from the scope of the defence and making the defence more accessible to victims of family violence. The most notable reformulation is England and Wales’s “loss of control”, and New South Wales’s “extreme provocation”.
The new formulation based on “loss of control”
10.65The partial defence of “loss of control” replaced provocation in England and Wales, following two reports of the Law Commission in that jurisdiction. Loss of control applies where:
(a) the defendant’s conduct resulted from a loss of self-control;
(b) the loss of self-control had a qualifying trigger; and
(c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way.
10.66A loss of self-control will have a “qualifying trigger” if it is attributable to:
(a) the defendant’s fear of serious violence from the deceased against the defendant or another identified person;
(b) a thing or things done or said (or both) that:
(i) constituted circumstances of an extremely grave character; and
(ii) caused the defendant to have a justifiable sense of being seriously wronged; or
(c) a combination of (a) and (b).
10.67Some commentators consider the extension to fear of serious violence is “close to redundant” for victims of family violence because of constraints on the operation of the defence and this trigger. The most significant and controversial constraint is the requirement to prove loss of self-control, which remains despite the Law Commission of England and Wales’s recommendation that it be removed. The Commission considered the loss of control requirement was unnecessary and undesirable because the wrongful words or conduct, and not the loss of control, were the justification for the defence. The Commission also noted the criticism that a loss of control requirement “privilege[d] men’s typical reactions to provocation over women’s typical reactions” and disadvantaged women responding to family violence:
It was clear to us that when a battered woman uses excessive force against her abusive partner only because she fears for her safety in any direct confrontation, it would be wrong to rule out her plea simply because there was no evidence of a loss of self-control.
10.68The requirement for a loss of control may, in addition, be illogical when the defence is invoked in connection with a rational fear of serious violence.
10.69The recommendations of the Law Commission of England and Wales were endorsed by the Select Committee established to review the partial defence of provocation in New South Wales. The Committee agreed that the requirement for a loss of control should be abandoned, and the focus shifted to the nature of the provocative conduct:
The Committee is concerned that the practical effect of the partial defence requiring a loss of self-control inappropriately lends itself to killings in which extreme violence is used to reduce a defendant’s culpability and, in relation to intimate partner homicides, this tends to favour male defendants who kill women, further contributing to concerns about gender bias. Conversely, the requirement to show a loss of self-control tends to disadvantage those who kill, usually women, who kill in ‘slow burn’ cases.
10.70However, in neither jurisdiction was the recommendation to discard the requirement for a loss of control adopted. Ultimately, the concern was that removing that requirement would risk opening up the partial defence to cold-blooded killing. The Ministry of Justice in England considered that:
… there is … a fundamental problem about providing a partial defence in situations where a defendant has killed while basically in full possession of his or her senses, even if he or she is frightened, other than in a situation which is complete self-defence.
10.71Rather than remove the requirement for a loss of control, the legislation in both England and Wales and New South Wales clarified that the loss of control does not need to be sudden. This may not have a major impact, however, as the period of time between the provocation and the defendant’s response will remain relevant. The explanatory notes to the loss of control provision state, for example, that delay could be evidence as to whether the defendant actually lost control, and the greater the delay the more likely the defendant acted out of calculated revenge. It has been argued that this will continue to be problematic for defendants who use force where there is no immediate threat.
10.72In 2007, the New Zealand Law Commission considered the English proposal to include fear-based responses in a reformulated provocation defence. Overall, it was unconvinced this offered any advance on New Zealand’s formulation and noted labelling and conceptual issues with combining provocation and excessive self-defence. Since then, the experience in England and Wales and New South Wales demonstrates that, while the most troublesome element of provocation-based partial defences for victims of family violence – the requirement for a sudden loss of control – is not inseparable from the defence, legislators have been unwilling to part with it given the risk the defence will then accommodate undeserving conduct.
Diminished capacity-based partial defencesTop
10.73Partial defences premised on diminished capacity look “into the actor’s mind to see whether he [or she] should be judged by a lesser standard than that applicable to ordinary men [or women]”. These defences do not share the objective requirement of provocation-based defences (that the provocation have a similar effect on a similar person). They are generally intended to capture conduct falling short of insanity, where the defendant suffers from an abnormality of mental functioning that impairs their capacity to understand events, to judge whether their actions are right or wrong or to exercise self-control. Diminished responsibility was considered, but rejected, by the VLRC and the Law Reform Commission of Western Australia. The VLRC noted that it had been argued that introducing diminished responsibility would serve to entrench misleading stereotypes of women by attributing the homicide to a psychological disturbance rather than a defensive reaction to ongoing and severe family violence.
10.74The few submitters who supported a partial defence of diminished responsibility, including the Auckland District Law Society, did so on the basis that it should apply generally rather than only to victims of family violence. Others questioned the appropriateness of a capacity-based defence for victims of family violence, noting it may imply some kind of mental disturbance and perpetuate gender stereotypes. The FVDRC considered this kind of defence would inappropriately focus on the defendant’s mental state rather than the social context within which they were responding. The Criminal Bar Association was not comfortable with the implication that victims of family violence have lost their ability to make reasonable judgements about their situation. The Public Defence Service was divided on the issue, noting concerns with describing defensive actions as a manifestation of some psychological disturbance but cautioning against rejecting the defence out of hand on that ground if it might avert a conviction for murder. They considered additional research may be needed to further investigate the potential of this partial defence for victims of family violence.
10.75Diminished capacity-based partial defences are recognised in several Commonwealth jurisdictions including in England and Wales, New South Wales, Queensland, the Northern Territory and the Australian Capital Territory.
10.76An example is the English provision, which was reformed following two reports of the English Law Commission, and provides:
Persons suffering from diminished responsibility.
(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.
(1A) Those things are—
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
10.77Diminished responsibility is considered an anomaly in English law, driven by retention of the mandatory sentence for murder. It reflects the continuum of mental illness (with insanity at one end and full competence at the other) and offers an alternative verdict for those not willing or able to raise the complete insanity defence. It is also supported on the basis murder is not the appropriate label for someone who is mentally ill, although as we have noted, the force of the “labelling” argument was rejected by the Law Commission of England and Wales.
10.78Diminished capacity is a difficult concept to define. This makes it problematic to apply and could lead to inconsistency. Some commentators note that there is no reliable way to gauge degrees of responsibility and question the utility of psychiatric evidence on this issue. For these reasons, diminished responsibility has never been part of New Zealand law. It was considered by the Crimes Consultative Committee established in 1989, but the Committee’s preference was to deal with matters of impaired responsibility at sentencing. The Committee considered that difficulties with establishing a discrete provision would be exacerbated by complexities involved in achieving sufficiently precise wording.
10.79Despite conceptual problems, the partial defence has, however, been successfully relied on by victims of family violence in other jurisdictions, and New Zealand courts have recognised that any capacity-based partial defence might be relied on by defendants who have been victims of family violence and suffered from battered woman syndrome.
10.80However, a partial defence of diminished responsibility is arguably problematic in this context for two reasons. First, it can entrench misleading stereotypes of women by attributing homicides of abusers to psychological disturbance or mental abnormality rather than defensive reactions or acts of desperation in response to ongoing and severe violence. Second, it may be used by predominant aggressors in the context of intimate partner violence (for example, by affording a defence to “depressed husbands who kill their partners when they end the relationship”).
10.81For these reasons, the Law Commission recommended against introduction of the defence in New Zealand in 2001. When it rejected the partial defence, the VLRC considered degrees of criminal responsibility should be assessed at sentencing and that introducing diminished responsibility would conflict with the recommendation to abolish provocation. The Law Reform Commission of Western Australia took a similar view, noting substantial impairment by mental abnormality does not always accurately reflect culpability or render such homicides equivalent to unintentional killings.
10.82We observe, finally, that in New Zealand the Sentencing Act 2002 provides that, if “the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding”, this may be a mitigating factor. This applies to all offences, not just homicide, and we discuss it in Chapter 11.
A trauma-based partial defenceTop
10.83In addition to the existing types of partial defence, we have considered the option of a new partial defence based on trauma that would be tailored towards victims of family violence who kill their abusers.
10.84As we apprehend it, the rationale for a partial defence in this context is to recognise reduced culpability of victims of family violence who have been traumatised by a history of abuse. This includes, but is not limited to, defendants who overreact to a threat and defendants who act out of anger after reaching a “breaking point” as a consequence of abuse. Neither a defence-based nor a provocation-based partial defence will capture both kinds of case. Further, we agree with the FVDRC and other submitters that a diminished capacity-based defence is inappropriate, as it would assume a victim of family violence was suffering from an abnormality of mental functioning caused by a recognised medical condition. This may not always be the case. A tailored partial defence based on the trauma of family violence could better recognise and fairly capture the unique circumstances of family violence victims.
10.85A helpful analogue is the partial defence of extreme mental or emotional disturbance in the American Law Institute’s Model Penal Code (MPC), which provides:
A homicide which would otherwise be murder [is manslaughter when it] is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.
10.86One of the features of this provision is that it requires a “reasonable explanation or excuse” only for the extreme mental or emotional disturbance under which the killing was committed and not for the killing itself. Some commentators have noted that this distinction avoids some of the difficulties with provocation’s reasonableness requirement. Because this provision does not require a loss of control or reaction to an external threat, it also avoids the problem of proving a temporal connection between an external circumstance and the defendant’s conduct. However, this feature has also been criticised on the basis it has “permitted juries to return a manslaughter verdict in cases where the defendant claims passion because the victim left, moved the furniture out, planned a divorce, or sought a protective order”, and while juries rejected the partial defence in those cases, the point may still have force, since:
… remitting issues to the bare sympathies of the juries invites the illicit and the prejudiced, particularly troublesome when the prejudice tends to be part of the culture, as it is to some degree with sex roles and behavior.
10.87Another distinctive feature of the MPC provision is that the objective aspect of the test (an extreme mental or emotional disturbance for which there is a reasonable explanation or excuse) is determined from the viewpoint of a person in the actor’s situation under the circumstances as he or she believes them to be. This was considered “potentially radical” (although it bears some similarity to the mixed subjective-objective test for self-defence and defence of another in section 48 of the Crimes Act 1961, which requires the defendant’s use of force to be reasonable “in the circumstances as he or she believes them to be”). It may be criticised on the basis it leaves the jury with no guidance for determining which abnormalities should and should not count and “individualises” the reasonableness standard.
10.88The Law Commission of England and Wales closely considered the MPC’s “extreme mental or emotional disturbance” as an alternative to the concept of “loss of control”. The concept received support from a significant number of submitters in that jurisdiction, including representative bodies of the legal profession and women’s groups, but was opposed by a majority of judges and academics on the basis that it was too vague. That Commission rejected the concept in 2004 (although it was noted as an alternative to the preferred option in the 2006 Report) on the basis it was “unduly vague and indiscriminate and could lead to “intense legal scrutiny and, no doubt, to a number of cases in the appeal courts to determine its meaning and scope”. The phrase has, however, formed the basis of a provocation defence in at least some states in the United States.
10.89Drawing on the MPC provision, the elements of a trauma-based defence could include that:
- the defendant had been subjected to repeated serious violence;
- the defendant had reacted in a state of extreme mental or emotional disturbance caused by the violence she or he had experienced; and
- there is a reasonable explanation or excuse for the extreme mental or emotional disturbance in the circumstances as the defendant believed them to be.
10.90Such a provision would, however, raise complex issues and involve a number of policy choices, including whether the relevant violence was limited to that perpetrated by the deceased. Proper application of any objective requirement would also necessitate a sound understanding of family violence or risk the same failings as loss of control in England and Wales.
Should any partial defence be limited to victims of family violence?Top
10.91A further issue is whether any partial defence should be limited in terms to apply only in the context of family violence. Given that we do not recommend the adoption of any partial defence, we only address this issue in brief to further highlight the difficulties with such an approach.
10.92The introduction of a partial defence of general application would have significant implications for the criminal law and would carry a high risk of unintended consequences. Given the current absence of general partial defences in New Zealand, it would be natural to expect the limits of any new partial defence to be tested vigorously. As victims of family violence who kill their abusers account for only a small fraction of homicide offenders, other defendants are far more likely to attempt to engage the partial defence.
10.93On the other hand, we see several issues with limiting a partial defence to victims of family violence. As a general principle, the law should, wherever possible, apply equally to people who have the same state of mind. A partial defence limited to specific circumstances or defendant characteristics would likely result in anomalous and inconsistent treatment of other classes of defendant whose conduct may be comparably culpable.
10.94Limiting a partial defence also heightens the risk that a woman who kills in response to family violence is not seen to be acting reasonably or will often not be acting reasonably. This may discourage victims of family violence from going to trial and relying on self-defence and may distort or detract from self-defence reforms.
10.95Finally, if a partial defence were limited to victims of family violence, definitional issues, and therefore policy choices about scope, would inevitably arise. Queensland is the only jurisdiction to have enacted a defendant-specific partial defence of “killing for preservation”. This defence applies only where “the deceased has committed acts of serious domestic violence against the person in the course of an abusive domestic relationship” and “the person believes that it is necessary for the person’s preservation from death or grievous bodily harm to do the act or make the omission that causes the death”. This would not capture a defendant who killed to protect another (for example, a woman who killed an abusive partner to protect her children from ongoing sexual and physical abuse), which has been subject to some academic comment. However, as we suggest in Chapter 11 in connection with sentencing, it is not difficult to see why Queensland might have decided to enact a narrowly framed defence.