Chapter 3
The legal context

Homicide law

3.4To be an offence, homicide must be “culpable”, that is, blameworthy according to law. Different legal systems criminalise homicide in different ways. Most jurisdictions comparable to New Zealand have a two-tier division of murder and manslaughter,180 and beyond this basic division, there are some lesser related offences that we discuss below.

3.5In New Zealand, culpable homicide is defined by section 160 of the Crimes Act 1961:

160 Culpable homicide

(1) Homicide may be either culpable or not culpable.

(2) Homicide is culpable when it consists in the killing of any person—

(a) by an unlawful act; or

(b) by an omission without lawful excuse to perform or observe any legal duty; or

(c) by both combined; or

(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his or her death; or

(e) by wilfully frightening a child under the age of 16 years or a sick person.

(3) Except as provided in section 178, culpable homicide is either murder or manslaughter.

(4) Homicide that is not culpable is not an offence.

The origins of murder and manslaughter

3.6Under the ancient common law of England, only homicides caused in the enforcement of justice (such as execution of a death sentence) were lawful. All others were punishable by death unless the offender received a royal pardon because the homicide was “without felony” and, therefore, excusable. While “murder” came to describe more serious homicides, that had little practical importance because every felonious killing attracted the same penalty.181 A sentence of death could, however, be avoided if the offender received the “benefit of clergy”, which transferred the case to the ecclesiastical court, which never imposed the death penalty. This was a device to alleviate the harshness of the uniform penalty for homicide.182
3.7Over time, the benefit of clergy was expanded, and in the 15th and early 16th centuries, a series of statutes excluded certain particularly serious killings (referred to as murder with “malice aforethought”) from its scope. The result was a division of culpable homicide into two categories. Killings with malice aforethought were called “murder” and punished by death, while killings without malice aforethought were punished by a brand and imprisonment for not more than a year. “Manslaughter” was the word adopted to describe this lesser form of culpable homicide.183

The modern distinction between murder and manslaughterTop

3.8The distinction between murder and manslaughter endures. Murder remains the most serious form of culpable homicide, although in few jurisdictions is it still punishable by death. In New Zealand, murder is defined by sections 167 and 168 of the Crimes Act 1961. Section 167 provides as follows:184

167 Murder defined

Culpable homicide is murder in each of the following cases:

(a) if the offender means to cause the death of the person killed:

(b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:

(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he or she does not mean to hurt the person killed:

(d) if the offender for any unlawful object does an act that he or she knows to be likely to cause death, and thereby kills any person, though he or she may have desired that his or her object should be effected without hurting any one.

3.9Manslaughter is culpable homicide that is not murder or some other specific form of homicide. In New Zealand, manslaughter is culpable homicide that does not amount to murder or infanticide.185 This includes all instances when death is caused by an unlawful act but there is no murderous intent.
3.10In jurisdictions with “partial defences”, manslaughter also includes homicides that meet the requirements of the defence. Partial defences, which we discuss in detail in Part 3, avert murder convictions by partially excusing, and categorising as manslaughter, intentional killings committed in certain mitigating circumstances. This form of manslaughter is often referred to as “voluntary manslaughter” because it involves killing with the intent for murder and is categorised as a different form of homicide only because a partial defence applies.186

Other homicide offencesTop

3.11As well as murder and manslaughter, the law includes some lesser and overlapping specific homicide offences. In New Zealand, the third form of culpable homicide is infanticide.187 Other specific offences (which fall outside the definition of “culpable homicide” but overlap with the conduct captured by manslaughter) include driving offences causing death.188

Homicide prosecutionsTop

3.12Among the issues we consider in this Report is how prosecutors decide what charges to lay when victims of family violence kill their abusers and, where charges are laid, how these defendants are convicted. We consider these issues in Part 3, but note some key points here.

3.13Charging is governed by the Solicitor-General’s Prosecution Guidelines and a person may be charged if the “evidential” and “public interest” tests for prosecution are met. The evidential test requires credible evidence upon which a jury could “reasonably be expected to be satisfied beyond reasonable doubt” that the defendant committed the offence.189 The public interest test invites consideration of whether prosecution is required in the public interest. This test is likely to be met in most homicide cases, given the value placed on human life. The Solicitor-General’s Prosecution Guidelines include the overarching principle that the nature and number of charges should adequately reflect the criminality of the defendant’s conduct.190
3.14Murder and manslaughter may be charged in the alternative, and manslaughter is usually included as a lesser offence when a person is charged with murder. This means that, if there is an evidential basis for manslaughter, a jury may convict of that offence, even if the defendant is charged only with murder.191 This is a feature of homicide law to which we return in Part 3.
3.15In any criminal case, a defendant may discuss with the prosecution the possibility of the charge being amended. The Solicitor-General’s Prosecution Guidelines permit principled plea discussions and arrangements in which a defendant may agree to plead guilty to a lesser charge instead of defending the more serious charge. Such arrangements can reduce the burden on victims, save time and resources and provide a forum for a defendant to accept responsibility for criminal conduct.192 The Solicitor-General must approve all plea arrangements in relation to murder charges.193
3.16If a defendant is charged with a homicide offence and goes to trial, the case will almost always be heard by a jury in the High Court.194 The jury is the fact-finder, but a judge will preside and sit through the entire trial, deal with questions of law and hear the same evidence as the jury. The judge will summarise the case at the end of the trial and direct the jury on the law. The prosecution must prove each element of the offence and the absence of any relevant defence beyond reasonable doubt.195 If the elements of an offence are not proved or any defence not excluded to this standard, the defendant must be acquitted of the offence charged, although in homicide cases where manslaughter is an alternative or included offence, a jury may acquit of murder but convict of manslaughter.

Capacity for criminal conduct and defences

3.17In addition to the evidence of offending, a prosecutor considering whether to pursue a criminal charge must consider the prospective defendant’s capacity for criminal conduct. The most relevant example of capacity is “infancy”, which means a person is under the age of criminal responsibility.196 In New Zealand, no person under the age of 10 years may be convicted of an offence.197 The law also restricts the situations in which children under the age of 14 may be charged with criminal offending. One situation where a charge may be laid is “where the child is of or over the age of 10 years, and the offence is murder or manslaughter”.198 We have reviewed no homicides by victims of family violence in this age range or below the age of capacity, although we have identified two cases of homicide by young people.199
3.18Assuming a charge is not precluded on grounds of capacity, a prosecutor considering whether to pursue a charge must also anticipate and evaluate likely defences.200 Defences are provided for in statutes like the Crimes Act and in “common law” principles that have developed through the courts.201 A defendant who contests a charge at trial202 may also rely on a relevant defence, although in some cases, a judge may withhold a defence from the jury. We discuss this issue in connection with self-defence in Part 2.
3.19Some defences, including self-defence, may be described as “justifications”, while others, like compulsion, are described as “excuses”.203 Justifications effectively claim a defendant acted acceptably and so did not commit a crime. For this reason, they are sometimes also called “permissions”.204 Because a person who can rely on a justification is not guilty of a crime, these defences “involve judgments about the situation which apply to all participants”.205 To say a person was justified in acting in self-defence means they were right to use the force they did and others would have been wrong to intervene. Excusatory defences are more restrictive. They acknowledge that, in certain circumstances, a person should not be subject to the full extent of the penalties of the criminal law because their actions were understandable. Partial defences to murder are generally considered to be partial excuses, although they may have justificatory elements.206
3.20HLA Hart explained the difference between justificatory and excusatory defences in this way:207

In the case of “justification” what is done is considered as something that the law does not condemn or even welcomes. But when the killing … is excused, the criminal responsibility is excluded on a different footing. What has been done is something, which is deplored, but the psychological state of the agent when he did it exemplifies one or more of a variety of conditions, which are held to rule out the public condemnation and punishment of individuals. This is a requirement of fairness or of justice to individuals.

Homicide penalties and sentencingTop

3.21For most crime, sentencing is an opportunity for the court to consider a person’s particular culpability. Matters judges must generally consider include “the gravity of the offending in the particular case, including the degree of culpability of the offender” and “the seriousness of the type of offence in comparison with other types of offences”.208 The principles of sentencing provide that the maximum penalty for an offence is for the most serious cases,209 and the court should impose the least restrictive outcome that is appropriate in the circumstances.210 Thus, sentencing permits fine-tuned offender-specific assessments of culpability.211

The legacy of a mandatory sentence for murder

3.22Historically, homicide has been exceptional among criminal offences because murder has attracted a mandatory sentence. While the maximum penalty for murder is now generally life imprisonment rather than death, in many countries that sentence is compulsory and judges have no discretion to depart from it, even where there are extenuating circumstances. This has led to the development of unique mechanisms for recognising reduced culpability for homicide, including partial defences. As we discuss in Chapter 10, however, in jurisdictions where judges have discretion in murder sentencing, there is a less compelling case for such mechanisms.212

Homicide sentencing in New Zealand

3.23Mandatory murder sentencing was abolished in New Zealand in 2002. Other than in cases captured by the “three strikes” regime,213 life imprisonment is now the maximum, but not a compulsory, penalty. There is, however, a strong presumption in favour of life imprisonment, rebuttable only if the court considers that sentence would be “manifestly unjust”.214 For manslaughter, there is no presumptive sentence. As the least blameworthy form of culpable homicide, infanticide has a maximum penalty of three years’ imprisonment. These differences in penalty signal that some cases are more serious than others, and particular categories of unlawful killing warrant significant leniency.215
3.24Sentencing for homicide, as for other offences tried before a jury, is usually conducted by the trial judge who heard the evidence and legal arguments – unless the defendant pleaded guilty before trial.216 Whether sentencing follows a conviction after trial or a guilty plea, the prosecution and the defendant may make submissions and can seek to present further evidence. The judge will take into account an offender’s prospects for rehabilitation and risk of reoffending, usually on the basis of a pre-sentence report and any reports by professionals such as psychologists or psychiatrists.217 The judge will also consider victim impact statements, which, in homicide cases, will be from immediate family members of the victim.218 We discuss some sentencing issues in Chapter 11.
180Or an offence like culpable homicide, which is the equivalent of manslaughter in some common law jurisdictions, including Scotland.
181Rollin M Perkins “A Re-Examination of Malice Aforethought” (1934) 43 Yale LJ 537 at 539–541. See also New South Wales Law Reform Commission Partial Defences to Murder: Diminished Responsibility (Report 82, 1997) at n 1.
182Perkins, above n 181, at 539–541.
183At 540–544.
184Section 168 of the Crimes Act 1961, which provides a further definition of murder, derives from the common law “felony murder” rule. It provides that, in certain situations where an offender does not mean to cause death or know that death is likely to follow but does one of a number of specified acts for the purposes of facilitating one of a number of specified criminal offences and death results, it will also amount to murder. This provision is not relevant for the purposes of our case review.
185Crimes Act 1961, s 171.
186Law Commission of England and Wales Murder, Manslaughter and Infanticide (Law Com No 304, 2006) at 4.
187Infanticide is provided for by s 178 of the Crimes Act 1961, subs (1) of which states: “Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.” Infanticide is a form of diminished responsibility and has a dual role as an offence and a defence. The role performed in any given case affects the burden of proof. If a person is charged with infanticide, the prosecution must prove all elements beyond reasonable doubt, but if a person is charged with murder or manslaughter, she will be entitled to a finding of infanticide if there is a sufficient evidential foundation for it that leaves the jury with a reasonable doubt. See AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at 591.
188Land Transport Act 1998, ss 7, 8, 36AA, 38 and 39.
189Crown Law Solicitor-General’s Prosecution Guidelines (2013) at 6.
190At [8.1].
191R v Tavete [1988] 1 NZLR 428 (CA); and Criminal Procedure Act 2011, s 110.
192Crown Law, above n 189, at [18.1].
193At [18.9].
194Criminal Procedure Act 2011, ss 74 and 103. Some criminal charges may be tried before a judge without a jury, but in New Zealand murder and manslaughter must be tried before a jury other than in cases of juror intimidation.
195Some crimes, however, have inbuilt defences that put an onus of proof on the defendant. See for example Crimes Act 1961, s 134A (defence to charge of sexual conduct with young person under 16); s 124(2) (defence to charge of distribution or exhibition of indecent matter); s 124A(3) (defence to indecent communication with a young person under 16); and s 125(2) (defence to indecent act in a public place). See also Simester and Brookbanks, above n 187, at 39.
196Another potentially relevant instance of capacity is insanity. Insanity is commonly characterised as a defence but may be better conceptualised as an instance of legal incapacity. See Simester and Brookbanks, above n 187, at 316. If a judge or jury finds a person accused of a criminal offence insane, the defendant will be acquitted on that basis and then subject to the range of detention orders provided for by the relevant legislation, the Criminal Procedure (Mentally Impaired Persons) Act 2003.
197Crimes Act 1961, s 22.
198Children, Young Persons, and Their Families Act 1989, s 272(1)(a).
199R v Erstich (2002) 19 CRNZ 419 (CA); and R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005.
200Crown Law, above n 189, at 7.
201Section 20 of the Crimes Act 1961 expressly preserves as part of New Zealand law all “rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge”.
202Not all charges are contested. A person charged with an offence may enter a plea – of guilty or not guilty – before trial: Criminal Procedure Act 2011, pt 3, subpt 1.
203Simester and Brookbanks, above n 187, at 11–12.
204See for example Jeremy Horder Homicide and the Politics of Law Reform (Oxford University Press, Oxford, 2012) at 200.
205Simester and Brookbanks, above n 187, at 12.
206On the justificatory elements of the partial defence of provocation, see Law Commission The Partial Defence of Provocation (NZLC R98, 2007).
207HLA Hart Punishment and Responsibility (Clarendon Press, Oxford, 1968) at 13–14.
208Sentencing Act 2002, s 8.
209Sentencing Act 2002, s 8(c). See also R v Xie [2007] 2 NZLR 240 (CA) at [26].
210Sentencing Act 2002, s 8(g).
211Nicola 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 108. See also Paul Robinson Structure and Function in Criminal Law (Clarendon Press, Oxford, 1997) at ch 6.
212Indeed, it is notable that, among comparable jurisdictions, only three that have discretionary sentencing for murder (New South Wales, Western Australia and the Australian Capital Territory) also have partial defences. Other jurisdictions that retain partial defences (England and Wales, Canada and Ireland, as well as Queensland, Northern Territory and South Australia) also have mandatory murder sentencing.
213The “three strikes” regime, which is provided for by ss 86A–86I of the Sentencing Act 2002, significantly curbs sentencing discretion for violent offences, including murder and manslaughter. We discuss this regime, and its implications for victims of family violence who commit homicide, in Chapter 11.
214Sentencing Act 2002, s 102.
215Simester and Brookbanks, above n 187, at 590, discussing infanticide.
216A defendant who is considering whether to plead guilty may seek a sentence indication before deciding whether to do so. A sentence indication is a statement by the court that, if the defendant pleads guilty, the court would or would not impose a sentence of a particular type and/or length: Criminal Procedure Act 2011, s 61. Sentence indications give defendants clarity and certainty about the jeopardy they face if they plead guilty: Taylor v R [2013] NZCA 55 at [17].
217Sentencing Act 2002, s 26.
218Victims’ Rights Act 2002, s 17AA. Section 4 of that Act defines “victim” to include “a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned”.