Chapter 10
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,837 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:

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 The specific offence of defensive homicide in Victoria (now repealed) has a similar focus to these partial defences.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.

Excessive self-defence

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.838 The Commission considered a partial defence of excessive self-defence might be worded as follows:839

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.840 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.841 This convinced both the Victorian Law Reform Commission (VLRC) and the Law Reform Commission of Western Australia to recommend versions of this partial defence.842
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.843 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.844
10.54There are problems with excessive self-defence, which have led courts in New Zealand,845 England,846 Canada847 and Australia848 to disavow the partial defence at common law. In New Zealand, the Court of Appeal recently considered excessive self-defence in McNaughton v R.849 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,850 South Australia,851 Western Australia852 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:853

… 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,854 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.855
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”.856 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.857

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”.858 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.859 In Queensland, self-defence is available only where a person is facing an immediate threat of harm or is being assaulted.860 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.861 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.862 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,863 and the facts of that case may have fit within a provocation-based defence.864 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 2009.865 We do not attempt to explore the problems with the defence, which was considered in detail by the Law Commission in 2007.866 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.867 Second, provocation can operate to excuse perpetrators of family violence who kill their victims in unexceptional circumstances, such as relationship break-downs.868
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 defence869 and making the defence more accessible to victims of family violence.870 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.871 Loss of control applies where:872

(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:873

(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.874 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:875

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.876
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.877 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:878

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.879 The Ministry of Justice in England considered that:880

… 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.881 This may not have a major impact, however, as the period of time between the provocation and the defendant’s response will remain relevant.882 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.883 It has been argued that this will continue to be problematic for defendants who use force where there is no immediate threat.884
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.885 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.886

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]”.887 These defences do not share the objective requirement of provocation-based defences (that the provocation have a similar effect on a similar person).888 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.889 Diminished responsibility was considered, but rejected, by the VLRC and the Law Reform Commission of Western Australia.890 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.891

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,892 New South Wales,893 Queensland,894 the Northern Territory895 and the Australian Capital Territory.896
10.76An example is the English provision, which was reformed following two reports of the English Law Commission,897 and provides:898

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.899 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.900 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.901
10.78Diminished capacity is a difficult concept to define. This makes it problematic to apply and could lead to inconsistency.902 Some commentators note that there is no reliable way to gauge degrees of responsibility and question the utility of psychiatric evidence on this issue.903 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.904 The Committee considered that difficulties with establishing a discrete provision would be exacerbated by complexities involved in achieving sufficiently precise wording.905
10.79Despite conceptual problems, the partial defence has, however, been successfully relied on by victims of family violence in other jurisdictions,906 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.907
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.908 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”).909
10.81For these reasons, the Law Commission recommended against introduction of the defence in New Zealand in 2001.910 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.911 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.912
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.913 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:914

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.915 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”,916 and while juries rejected the partial defence in those cases, the point may still have force, since:917

… 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”918 (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.919
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”.920 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.921 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 indiscriminate922 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”.923 The phrase has, however, formed the basis of a provocation defence in at least some states in the United States.924

10.89Drawing on the MPC provision, the elements of a trauma-based defence could include that:

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.925

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.926 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.927
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”.928 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.929 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.930
837Law Commission, above n 824.
838At 25–26.
839At 22.
840At 25.
841Victorian Law Reform Commission, above n 794, at 94.
842Victorian Law Reform Commission, above n 794, at 101; and Law Reform Commission of Western Australia, above n 782, at 181–182.
843Victorian Law Reform Commission, above n 794, at 102; and Law Commission, above n 824, at 25.
844In R v Neale [2010] NZCA 167, the defendant claimed self-defence, but the facts do not appear to have supported it. The defendant stabbed the deceased nine times as he got out of the shower. In R v Reti HC Whangarei CRI-2007-027-2103, 9 December 2008 [Reti (HC)]; R v Reti [2009] NZCA 271, excessive self-defence could have led to a different outcome on the facts, as the defendant stabbed the deceased after he kicked her in the stomach. However, she had previously stabbed him several hours earlier, and the jury rejected her claim of provocation. In R v Wihongi, above n 816, the defendant stabbed the deceased after an argument and while he was leaving the property. In R v Rihia [2012] NZHC 2720, the defendant stabbed the deceased during an argument and while the deceased was lying on the couch, intoxicated and after the deceased had thrown a speaker at his head.
845McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467.
846Palmer v R [1971] All ER 1077 (PC) at 1088.
847R v Faid [1983] 1 SCR 265.
848Zecevic v DPP (1987) 162 CLR 645.
849McNaughton v R, above n 845.
850Crimes Act 1900 (NSW), s 421.
851Criminal Law Consolidation Act 1935 (SA), s 15(2).
852Criminal Code Act Compilation Act 1913 (WA), s 248(3).
853McNaughton v R, above n 845, at [64], quoting R v Faid, above n 847, at 271.
854Model Criminal Code Officers Committee Model Criminal Code: Fatal Offences Against the Person (1998) at 107–113.
855Law Commission, above n 824, at 25.
856Palmer v R, above n 846, at 1088.
857S Kadish The Model Penal Code’s Provocation Proposal and its Reception in the State Legislatures and Courts of the United States of America, with Comments Relating to the Partial Defenses of Diminished Responsibility and Imperfect Self-Defence (February 2004).  See Appendix F of Law Commission of England and Wales, above n 804.
858Criminal Code 1899 (Qld), s 304B.
859See above at paragraph [4.49] and n 346.
860See discussion in Tasmania Law Reform Institute, above n 820, at 70; and Victorian Department of Justice Defensive homicide: Review of the offence of defensive homicide: Discussion paper (August 2010) at 50. See also Queensland Law Reform Commission, above n 820, at 313.
861Queensland Law Reform Commission, above n 820, at 489. See also discussion at paragraph [10.36] above, and the footnotes therein.
862The jury could, however, also have found that the defendant lacked the necessary intent for murder, which would also render a manslaughter verdict.
863R v Rihia, above n 844.
864See the discussion of Ms Rihia’s case and the partial defence of provocation in Chapter 9 at paragraphs 9.49–9.51.
865As discussed in Chapter 4. In Australia, provocation was also abolished in Tasmania in 2003, in Victoria in 2005 and in Western Australia in 2008. See Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003 (Tas); Crimes (Homicide) Act 2005 (Vic); and Criminal Law Amendment (Homicide) Act 2008 (WA).
866Law Commission, above n 792.
867Victorian Law Reform Commission, above n 794, at 58; Queensland Law Reform Commission, above n 820, at 298; Law Commission Battered Defendants: Victims of Family Violence Who Offend (NZLC PP41, 2000) at 28–29; and Law Commission of England and Wales, above n 797, at 81. See also Barry Mitchell “Loss of Self-Control under the Coroners and Justice Act 2009: Oh No!” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 39 at 42.
868Family Violence Death Review Committee, above n 806, at 118.
869Reform of provocation in England and Wales expressly excludes sexual infidelity and claims where the provocative conduct has been incited by the defendant as an excuse to use violence (Coroners and Justice Act 2009 (UK), s 55(6)). In New South Wales provocation was reformulated to “extreme provocation” and applies only when the deceased’s conduct constitutes a serious indictable offence and excludes conduct incited by the deceased in order to provide an excuse to use violence (Crimes Act 1900 (NSW), s 23(2) and (3)). In Queensland provocation was restricted to exclude conduct of the deceased to bring about the end of a relationship, except in circumstances of a “most extreme and exceptional character” (Criminal Code 1899 (QLD), s 304(3)). In Canada, amendments were introduced in 2015 to restrict provocation to circumstances where the deceased’s conduct constituted an indictable offence punishable by five or more years of imprisonment (Criminal Code RSC 1985 c C-46, s 232(2)).
870The requirement that the loss of control be “sudden” or for the provocation to occur immediately before the defendant’s use of force was removed by statute in England and Wales (Coroners and Justice Act 2009 (UK), s 54(3)); New South Wales (Crimes Act 1900 (NSW), s 23(4)); and the Australian Capital Territory (Crimes Act 1900 (ACT), s 13(2) and (4)(b)).
871Law Commission of England and Wales, above n 804; and Law Commission of England and Wales, above n 797.
872Coroners and Justice Act 2009 (UK), s 54(1).
873Coroners and Justice Act 2009 (UK), s 55.
874Catherine Elliot “A Comparative Analysis of English and French Defences to Demonstrate the Limitations of the Concept of Loss of Control” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 231 at 231.
875Law Commission of England and Wales, above n 797, at 83.
876Elliot, above n 874, at 232.
877Select Committee on the Partial Defence of Provocation, above n 804.
878At 64.
879Department of Attorney General and Justice Reform of the Partial Defence of Provocation: Call for Submissions on the exposure draft Crimes Amendment (Provocation) Bill 2013 (New South Wales, 2013) at 8; and Mitchell, above n 867, at 44–45.
880Ministry of Justice Murder, Manslaughter and Infanticide (MoJ CP No 19, London 2008) at [36]. Discussed in Mitchell, above n 867, at 44.
881See above n 870.
882Mitchell, above n 867, at 50.
883Coroners and Justice Act 2009 (UK) (explanatory notes) at [337]. Discussed in Elliot, above n 874, at 232.
884Elliot, above n 874, at 232.
885Law Commission, above n 792, at 60–61.
886A defence that partially excuses some provoked intentional killings is also fundamentally problematic for the reason recorded in the Law Commission’s 2007 Report; it “assumes that the ordinary person, faced with a severely grave provocation, will in consequence resort to homicidal violence, when it is in fact arguable that only the most extraordinary person does this”: Law Commission, above n 792, at 42. The English reformulation does not resolve this conceptual problem.
887Model Penal Code (US) § 210(3) (1985) (commentary) at 71–72, noted in Paul H Robinson “Abnormal Mental State Mitigations of Murder: The US Perspective” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 291 at 307.
888For example, loss of control applies where “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”. See Coroners and Justice Act 2009 (UK), s 54(1)(c).
889See, for example, Crimes Act 1900 (NSW), s 23A.
890Victorian Law Reform Commission, above n 794, at 239; and Law Reform Commission of Western Australia, above n 782, at 259.
891Victorian Law Reform Commission, above n 794, at 239.
892Homicide Act 1957 (UK), s 2.
893New South Wales reformed its version – “substantially impaired capacity” – in 1997. See Crimes Act 1900 (NSW), s 23A.
894Criminal Code Act 1899 (Qld), s 304A.
895Criminal Code (NT), s 37.
896Crimes Act 1900 (ACT), s 14.
897Law Commission of England and Wales, above n 804; and Law Commission of England and Wales, above n 797.
898Coroners and Justice Act 2009 (UK), s 52 (amending Homicide Act 1957 (UK), s 2).
899Alan Reed and Nicola Wake “Anglo-American Perspectives on Partial Defences: Something Old, Something, Borrowed, and Something New” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 183 at 183–184.
900Victorian Law Reform Commission, above n 794, at 237.
901Law Commission of England and Wales, above n 797, at 99–100.
902Law Commission, above n 824, at 47; and Victorian Law Reform Commission, above n 794, at 239.
903Kadish, above n 857, at 278.
904Warren Brookbanks “Partial Defences to Murder in New Zealand” in Alan Reed and Michael Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate, Farnham, 2011) 271 at 283.
905At 283.
906See for example R v Ahluwalia [1992] 4 All ER 889 (CA).
907R v Gordon (1993) 10 CRNZ 430 (CA). A capacity-based partial defence may also be relatively well suited to young offenders. The Family Violence Death Review Committee said in its submission that self-defence is often problematic on the facts of cases where children kill abusive parents or caregivers and noted children have different capacity to evaluate risk and consider outcomes” (citing Nelson v R [2012] NZHC 3570). See also Brookbanks, above n 904, at 282–284.
908Victorian Law Reform Commission, above n 794, at 239; and Law Commission, above n 824, at 47.
909Victorian Law Reform Commission, above n 794, at 240.
910Law Commission, above n 824, at 47–48. See also Brookbanks, above n 904, at 284.
911Victorian Law Reform Commission, above n 794, at 241–242.
912Law Reform Commission of Western Australia, above n 782, at 259.
913Sentencing Act 2002, s 9(2)(e).
914Model Penal Code (US) § 210(3)(1)(b) (1985), cited and discussed in Mitchell, above n 867, at 49.
915See, for example, Kadish, above n 857, at 273–274. See also the discussion in Robinson, above n 887, at 292–296.
916Kadish, above n 857, at 273.
917At 273.
918At 272.
919Thereby departing from the intention of the partial defence of provocation that the provocation must have been so grave as to have affected most reasonable persons in the same fashion: Kadish, above n 857, at 276–277.
920Law Commission of England and Wales, above n 797, at 82; and Law Commission of England and Wales, above n 804, at 41–44.
921Law Commission of England and Wales, above n 804, at 41.
922Law Commission of England and Wales, above n 797, at 82; Law Commission of England and Wales, above n 804, at 41–44.
923Law Commission of England and Wales, above n 797, at 82.
924Law Commission of England and Wales, above n 797, at 82; and Kadish, above n 857, at 272. When the Law Commission of England and Wales considered this in 2004, none of the 34 United States jurisdictions that had revised their criminal codes had adopted the Model Penal Code proposal wholesale, but five (Arizona, Arkansas, Connecticut, Kentucky and New York) had adopted the proposal with omission of only the term “mental” from the phrase “extreme mental or emotional disturbance”.
925Submitters were divided on the question of whether a partial defence should be limited to victims of family violence. Those who favoured limiting a partial defence were concerned about the risk of unintended consequences and of undeserving defendants using the partial defence to their benefit. Others, including the Criminal Bar Association and Auckland District Law Society, could not see the justification for limiting a partial defence. They recommended providing additional criteria or a threshold test if the concern was to prevent its use by “undeserving” defendants. Some submitters emphasised the difficulties in identifying a victim of family violence, noting that many aggressors were primary victims in previous situations (as children). Historical and intergenerational violence could therefore be problematic to deal with under a partial defence. Another submitter said criminal defences should be principles based, not ad hoc.
926Victoria Department of Justice, above n 782, at viii.
927At 12.
928Criminal Code 1899 (Qld), s 304B.
929See for example, Edgely and Marchetti, above n 804.
930See Chapter 11 at paragraph [11.41].