Contents

Chapter 4
The law reform context

Previous New Zealand Law Commission Reports

The 2001 New Zealand Law Commission Report

4.3In 1999, in response to criticism that existing criminal defences were failing to protect those who commit criminal offences as a reaction to domestic violence, the Law Commission was asked to review these defences. It published its Report in 2001.

4.4The 2001 Report was primarily focused on defences to homicide, but the scope of the Commission’s review also covered defences to other crimes, including the defences of compulsion and duress. Various reforms were recommended.

Self-defence

4.5In relation to self-defence, the Commission noted criticisms of the way self-defence was applied in the context of offending by victims of family violence, particularly in respect of reasonableness of force, imminence and proportionality.265 The significance of imminence and lack of alternatives had been discussed and confirmed in the 1989 Court of Appeal decision R v Wang, which remains authoritative in New Zealand.266
4.6As the Commission recognised and as we discuss in detail in Part 2 of this Report, the concepts of imminence and lack of alternatives are a poor fit for the realities of family violence and the circumstances in which victims of family violence (who are most often women) kill abusers. The Commission said:267

The Commission considers that self-defence should not be excluded where the defendant is using force against a danger that it not imminent but is inevitable. In many, perhaps most, situations, the use of force will be reasonable only if the danger is imminent because the defendant will have an opportunity to avoid the danger or seek effective help. However, this is not invariably the case. In particular, it may not be the case where the defendant has been subject to ongoing physical abuse within a coercive intimate relationship and knows that further assaults are inevitable, even if help is sought and the immediate danger is avoided.

We agree that the terms of section 48 do not require the courts to exclude self-defence where danger is inevitable but not imminent. However, we think it preferable to make this explicit by legislative reform, rather than to leave the law to be developed case by case. Relying on the courts to develop the law may require a person to be convicted and then to appeal successfully before the legal position is clarified. While the Court of Appeal would be free to change its earlier approach. A trial judge may feel he or she is required to follow the approach in Wang. Until the Court of Appeal has dealt with the matter, the correct interpretation of section 48 would remain unclear, although some trial judges may approach section 48 in terms of inevitability.

4.7Thus, the Commission recommended reform to make it clear there can be situations where the use of force is reasonable even though the danger is not imminent but “inevitable”.268 It was also recommended that, whenever there is evidence capable of establishing a reasonable possibility a defendant intended to act defensively, the question of whether the force used was reasonable should always be for the jury.269

Recognising reduced culpability for homicide

4.8In relation to recognising the reduced culpability of victims of family violence who kill other than in self-defence, the Commission considered a range of partial defences that might be relied on by victims of family violence, including provocation, excessive self-defence, diminished responsibility and a special defence for battered defendants. Of all these options the Commission preferred a partial defence of excessive self-defence270 but ultimately concluded that reduced culpability should be taken into account during sentencing rather than via a partial defence:271

The Commission does not support the retention or creation of partial defences once a sentencing discretion is available for murder. It does not seem fair to make a distinction between those intentional killers who are able to bring themselves within one of the partial defences and those who cannot, but who are nevertheless sentenced to a finite term because of mitigating circumstances.

We agree with the submission that partial defences have proved to be difficult in practice and that it would be easier to take account of the mitigating circumstances they represent in sentencing.

We do not agree with the submission in paragraph 158, that it is preferable for matters of moral accountability to be set out in partial defences rather than to be sentencing considerations. Matters of moral accountability, such as motive and characteristics of the offender, are typically taken into account at sentencing. A judge exercising a discretion must do so within established principles, in open court and must state reasons. If either the offender or the Crown think the discretion was misapplied, and the sentence excessive or inadequate, they can appeal.

4.9Accordingly, the Commission recommended that provocation be repealed272 and that no new partial defence, whether of general application or specific to battered defendants, be introduced in New Zealand.273 It also recommended that the mandatory life sentence for murder be abolished and replaced with a sentencing discretion.274

Government consideration of the 2001 ReportTop

4.10The Government considered legislative change to self-defence was unnecessary because, while the Court of Appeal in R v Wang had glossed the “reasonable force” test with a requirement for imminence or immediacy of life-threatening violence, that case did not appear to have been strictly followed in some subsequent cases.275 In R v Oakes, a claim of self-defence had been put to the jury even where it did not appear the defendant had acted on an immediate threat.276 In R v Zhou, the defendant was charged with the attempted murder of her husband after she drugged and tied him up and chopped him repeatedly with a meat cleaver when he began to struggle. The husband had, hours earlier, raped the defendant, beaten her with the cleaver and made lethal threats.277 The defendant successfully claimed self-defence even though she “presumably had other options open to her” when she tied her husband up.278 However, as we discuss in Chapter 6, the courts have, since then, confirmed that Wang remains an authoritative statement of the test for self-defence.
4.11The Ministry of Justice also advised that amendment to self-defence was otherwise undesirable. It noted the fact that some defendants fail on self-defence does not mean juries are applying an imminence or immediacy test. The Ministry also considered there was merit in the conclusion of the Criminal Law Reform Committee in its 1979 Report on Self Defence that a self-defence provision should be framed in general terms, with the “infinite variety” of factual scenarios that may constitute reasonable force left for case-by-case assessment.279 The Commission’s recommendations on self-defence were, therefore, not adopted.

4.12In relation to the Commission’s recommendation for recognising reduced culpability for murder through sentencing rather than a partial defence, the Government’s initial focus was on statutory enactment of the sentencing recommendations. The Sentencing Act 2002 abolished the mandatory life sentence for murder and replaced it with a rebuttable presumption in favour of that sentence. Section 102 permits a judge to impose a lesser sentence if “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”.

4.13Before deciding whether to repeal provocation, the Government in 2004 asked the Commission to consider further the implications of repeal for mentally ill or impaired offenders. There also appeared to be residual doubt about the impact repeal would have on battered defendants.280 The Commission undertook further research and consultation before publishing its Report in 2007.

The 2007 New Zealand Law Commission ReportTop

4.14In the 2007 Report, the Commission reiterated its recommendation that the partial defence of provocation should be repealed. Aside from legal, conceptual and practical difficulties with the defence, the Commission identified a more fundamental issue:281

Section 169 excuses a homicidal loss of self-control, in the face of a provocation of such gravity that it would have prompted a person with ordinary self-control to do likewise. The defence is thus open-ended about the precise emotions that might be driving the defendant; in other words, on its face, provocation is not necessarily confined to an angry loss of self-control, as opposed to one prompted by fear or sympathy. However, anger is the context in which it is commonly understood to operate, and is most frequently used. We would thus argue that the defence puts a premium on anger – and not merely anger, but homicidally violent anger. This, to our minds, is or should be a central issue in considering whether reform is required: out of the range of possible responses to adversity, why is this the sole response that we choose to partially excuse?

4.15The Commission considered whether provocation should be reformed or replaced to retain jury involvement in decisions about culpability for homicide. The options it considered included:282
4.16Overall, the Commission concluded none of these alternatives were viable.283 A “smorgasbord” of partial defences would be arbitrary, since “[t]here is no way of articulating the distinction between what is properly to be regarded as a partial defence, and what is “merely” a mitigating circumstance”.284 A generic partial defence would be simpler, but the Commission doubted juries have any particular capacity to arbitrate who is and who is not properly labelled a “murderer”:285

The reality probably is that, in the absence of any legal guidance, the only delineation will be the extent to which a jury sympathises with various defendants and their predicaments. This has the potential to reduce homicide to a lottery: it is an invitation to jurors to dress up their prejudices as law, and substantially increases the risk that more weight will be placed on jury composition and the advocacy skills of defence counsel than on the legal merits of the case.

4.17Accordingly, the Commission recommended that defendants who would have relied on provocation should be convicted of murder, with any evidence of provocation in their case to be weighed with other aggravating and mitigating factors at sentencing.286
4.18The Commission acknowledged that repealing provocation would limit the available options for battered defendants but considered that, for most such defendants:287

[S]elf defence will tactically offer a preferable alternative to provocation, because it results in an acquittal. We adhere to the Law Commission’s previous view that provocation is not benefiting battered defendants sufficiently to warrant its retention, and our review of case law confirms this… While provocation may in the past have offered one option for some battered defendants in New Zealand, it has also arguably been something of a mixed blessing. Although we were not able to confirm it in our own review of recent New Zealand homicide cases, there is a compelling case in the literature to suggest that provocation is a defence typically working against, rather than for, battered defendants – by the same violent and controlling jealous spouses that have been the subject of much of the feminist critique of this defence.

4.19The issue of self-defence was not substantively revisited in the 2007 Report. Instead, the Commission concluded:288

In the light of the further work undertaken by the Ministry of Justice on this matter in the development of the government response to Some Criminal Defences with Particular Reference to Battered Defendants, we are content at this stage to concur with the Ministry’s conclusions.

The Commission’s Sentencing Guidelines Report

4.20In the 2007 Report, the Commission also recommended sentencing guidelines to address the “manifestly unjust” test in the Sentencing Act, which it anticipated would help guide the length of finite sentences in particular categories of case, including homicides committed by battered defendants.289 This recommendation was made on the basis that the Commission’s recommendations in its previous 2006 Report, Sentencing Guidelines and Parole Reform, had been accepted by the Government. In that Report, the Commission recommended the establishment of a Sentencing Council with a mandate to draft sentencing guidelines.290 While legislation establishing the Sentencing Council was passed, the incoming Government declined to implement the Council, taking the view that sentencing matters should either be provided for in statute or left to the discretion of the courts.291 As a result, sentencing guidelines for murder have not eventuated.

ConclusionTop

4.21In 2001, the Commission identified problems with the way in which self-defence operates in the context of a battered defendant who kills their abuser. It considered that, while the law was capable of accommodating these defendants, legislative reform was preferable to leaving the law to develop case by case. The Government, while recognising these concerns, did not adopt that recommendation, instead preferring to leave the law to be developed through the courts, noting that the approach in recent cases suggested that the law was developing appropriately to accommodate victims of family violence. This issue was not substantively revisited in the 2007 Report. However, as we discuss in Chapter 6, positive development in the case law has stalled, and the concepts regarded as problematic for victims of family violence have been confirmed in the higher courts.

4.22In both the 2001 and 2007 Reports, the Commission preferred that the reduced culpability of victims of family violence be addressed at sentencing and emphasised the merits of sentencing reform. In neither Report did the Commission shrink from concluding that New Zealand’s provocation defence was irredeemably problematic as a matter of theory and practice. We look at this in Part 3 of this Report to understand whether, in light of developments in the law, there is a case for reform around partial defences to properly recognise the reduced culpability of victims of family violence who kill their abusers.

265Law Commission Battered Defendants (NZLC PP41, 2000) at 12–16.
266R v Wang [1990] 2 NZLR 529 (CA). We discuss this case and subsequent case law in detail in Chapter 6 of this Report.
267Law Commission, above n 263, at [30]–[31].
268At [32].
269At [42].
270At [67].
271At [161]–[163].
272At [120].
273At [86].
274At [151].
275Ministry of Justice Criminal Defences Discussion Paper: Provocation and Other Partial Defences, Self Defence, and Defences of Duress (2003) at [32].
276At [32.1], referring to R v Oakes [1995] 2 NZLR 673 (CA). Mrs Oakes had suffered abuse over an 11-year period and ultimately killed her husband by dissolving a large number of tablets in a cup of coffee. This case is discussed in detail in Chapter 6.
277R v Zhou HC Auckland T 7/93, 8 October 1993; and Ministry of Justice, above n 275, at [32.4].
278Ministry of Justice, above n 275, at [32.4].
279Criminal Law Reform Committee Report on Self Defence (Report 15, November 1979).
280Law Commission, above n 264, at 6.
281At 11.
282At [155].
283At [183].
284At [162].
285At [166].
286At [183].
287At [121].
288At [124].
289At [206]–[207].
290Law Commission Sentencing Guidelines and Parole Reform (NZLC R94, 2006) at 13.
291Hon Simon Power indicated in early 2008 that the Government did not intend to pursue the Sentencing Council, preferring to put the money set aside for it into funding services for victims. Reasons for this appear to be the concern that a Sentencing Council would undermine judicial independence and that the development of detailed sentencing policy would usurp the role of Parliament. See “National to scrap sentencing council” (2 August 2008) Stuff.co.nz <www.stuff.co.nz>; Warren Young and Andrea King “The Origins and Evolution of Sentencing Guidelines – A Comparison of England and Wales and New Zealand” in Andrew Ashworth and Julian Roberts (eds) Sentencing Guidelines: Exploring the English Model (Oxford University Press, Oxford, 2013) 202 at 203. The Sentencing Council Act 2007 is now listed for full repeal in sch 1 to the proposed Statutes Repeal Bill, an exposure draft on which the Parliamentary Counsel Office sought feedback in 2015. See Statutes Repeal Bill (Consultation Draft) at 13.