Chapter 10
Is a partial defence justified?

overview of the submissions

10.3Submitters were fairly evenly split on the merits of a partial defence, but most qualified their support or opposition by noting the difficulties associated with formulating such a defence. Perhaps unsurprisingly, the division of views among members of our expert panel largely mirrored those of submitters; some considered a partial defence had merit, while others were concerned such a defence could raise problems and lead to unintended consequences.

Those in favour

10.4The Family Violence Death Review Committee, the Criminal Bar Association, the Auckland District Law Society and two academics said that, with no partial defence to guide plea negotiations or the presentation of evidence at trial, defendants are subject to prosecutorial discretion and face considerable jeopardy if they defend a murder charge. The possibility of acquittal goes hand in hand with the risk of conviction for murder, with no middle ground unless intent is not proved by the prosecution. This has implications for sentencing. Juries, too, face binary decisions, and while they may “informally” recognise reduced culpability with manslaughter verdicts, such verdicts should have a foundation in law.

10.5One submitter argued that a partial defence is more likely than discretionary elements of the justice system, such as prosecutorial decision making, to result in transparent and even-handed treatment of defendants. Another thought a partial defence may reduce the number of murder charges and thereby neutralise some of the jeopardy defendants currently face.

10.6The “messaging” potential of a partial defence was identified as a practical benefit. When a jury accepts a partial defence and convicts of manslaughter, it is argued, that sends a signal about reduced culpability, which helps the judge set the appropriate sentence and helps the public understand and accept the verdict and any leniency in sentencing.

10.7Two academic submitters argued that, as a matter of legal theory, sentencing determines punishment, but culpability is determined through verdict. For some intentional homicides, a murder verdict will not accurately reflect an offender’s culpability.

Those againstTop

10.8One person we spoke with thought the empirical case for a partial defence for victims of family violence is not made out and that this was critical to whether there is a case for reform. This consultee thought education may enhance sentencing practice, such that a new defence would be a “sledgehammer to crack a nut” and noted that most jurisdictions that have partial defences also have mandatory sentencing for murder.

10.9On a practical level (the New Zealand Law Society, Aviva and Women’s Refuge), several organisations noted there is a risk the “wrong” defendants will rely on any partial defence. Others were concerned a partial defence might work against victims of family violence by detracting from self-defence and promoting compromise pleas or verdicts or, if specific to victims of family violence, “normalising” these homicides of abusers as manslaughter.

10.10A number of submitters and people we spoke with, including the New Zealand Law Society, thought the proper way to recognise reduced culpability is through sentencing. One noted that the rest of the criminal law functions without partial defences, and it is anomalous for murder to be treated differently.