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.
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.
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.
4.12In 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”.
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?
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.
[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.
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.
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.