The conceptual framework for reduced culpability
Options for recognising reduced culpability
8.13There is a range of options for recognising reduced culpability during the criminal justice process in homicide cases.
Degrees of homicide
8.14Some argue a murder-manslaughter bifurcation is, in itself, problematic, and it would be preferable to divide murder by degrees to better distinguish grades of blameworthiness for homicide. In 2006, the Law Commission of England and Wales concluded that the offences of murder and manslaughter in that jurisdiction had been strained to accommodate “changing and deepening understandings of the nature and degree of criminal fault and the emergence of new partial defences” and recommended that murder be split into first and second degree offences. The Commission considered that questions about who should be labelled a “murderer” had become identified with questions about punishment. This recommendation was not taken up, but degrees of murder are used in Canada and in American law and have previously been proposed in New Zealand.
8.15The ambit of New Zealand’s homicide offences and the merit of degrees of murder is beyond the scope of this reference. By their nature, these issues go wider than victims of family violence who commit homicide. We therefore do not explore them in this Report, although we touch on associated questions as we review options for distinguishing degrees of culpability, through partial defences and sentencing, in Chapters 10 and 11.
8.16A partial defence may arise when a person is charged with murder. If successfully relied on, a partial defence results in a lesser conviction of manslaughter, even where the homicide otherwise fits the criteria for murder. A partial defence cannot be invoked if a person is charged with manslaughter (or any other criminal offence). This serves to illustrate that these defences were originally a way to circumvent the capital punishment for murder. Creation of sentencing discretion is not the only contemporary explanation for partial defences, however. Other frequently cited rationales are fair labelling, the desirability of sharing assessments of culpability between the judge and the jury, ensuring homicides are not “overcharged” as murder and minimising perverse conviction outcomes.
8.17New Zealand repealed its only general partial defence – provocation – in December 2009 after two Law Commission reports recommending abolition in 2001 and 2007. On both occasions when it recommended repeal, the Commission concluded it was irrational to single out provocation (or anything else) as capable of reducing an intentional killing to manslaughter and emphasised that the defence was anachronistic.
8.18We discuss the arguments for and against partial defences in Chapter 10.
A specific homicide offenceTop
8.19It is a feature of partial defences that, if accepted, they always lead to a conviction for manslaughter. Because of the breadth of offending manslaughter captures, a manslaughter conviction in itself conveys little information. The Law Commission noted this in 2007. Other than in provocation cases, the Commission observed, cases of manslaughter in New Zealand “are all unintentional killings, perhaps arising from careless or dangerous driving, medical misadventure, or a misjudged assault”.
8.20An alternative and perhaps preferable way to recognise reduced culpability is a separate homicide offence. Separate homicide offences have the advantage of not “lumping together”, under a common manslaughter label, people who kill intentionally in mitigated circumstances with people who may have had no intention to kill or even injure; they may avoid straining the scope of manslaughter and achieve clearer labelling.
8.21Examples of specific offences include infanticide, which exists across common law jurisdictions, and, of more recent vintage, Victoria’s now-repealed “defensive homicide”. Defensive homicide was in substance akin to a partial defence of excessive self-defence, but the Victorian Government preferred to enact a separate offence partly on the basis it would confer more accurate information for sentencing.
8.22The merits of a new homicide offence are considered alongside our discussion of partial defences in Chapter 10.
Charging practices and jury decisionsTop
8.23Sometimes a decision to charge the lower-level offence of manslaughter or to substitute a charge of murder with manslaughter is in itself a way to recognise a person’s reduced culpability for homicide.
8.24An apparent example in the context of family violence is R v Woods, in which the defendant was charged with the murder of her partner after stabbing him twice in the upper chest. Just before trial, a charge of manslaughter was substituted when Ms Woods offered to plead guilty to that charge. The sentencing Judge accepted “unreservedly the sincerity and integrity of [the defendant’s] remorse”. She also noted that Ms Woods had responded to her family’s view she should have claimed self-defence with the explanation that “she would ‘never be able to live with [herself]’ if she were acquitted”. We understand from the prosecutor in Woods that, while there was an evidential basis to put murder to the jury, there were both evidential and public interest reasons that supported amending the charge to manslaughter. This suggests that, within New Zealand’s current homicide offence structure, there may be scope for recognition of reduced culpability at the charging stage.
8.25Another circumstance in which a person may be convicted of manslaughter, despite a charge of murder, is if the jury finds the person guilty of the lesser charge. This may occur because the prosecution fails to prove the elements of murder beyond reasonable doubt. A jury might also return such a verdict if it sympathises with the defendant.
8.26We look at New Zealand charging practice in cases of homicide by victims of family violence and the role played by juries in our case review in Chapter 9.
8.27Finally, an offender’s reduced culpability may be recognised at sentencing. Where mandatory murder sentencing has been abolished, judges have discretion to make case-specific decisions about culpability for murder, although that discretion may still be fettered.
8.28Jurisdictions that have abolished mandatory sentencing include New Zealand (outside of the three strikes regime), Victoria, Western Australia, New South Wales, the Australian Capital Territory and Tasmania. Life imprisonment remains mandatory in England and Wales, Ireland, Canada, South Australia, the Northern Territory and Queensland.
8.29Whether or not the mandatory sentence has been abolished, murder sentencing in some jurisdictions is still constrained by a presumption in favour of life imprisonment and, in New Zealand, prescriptive rules about mandatory minimum periods of imprisonment where a life sentence is imposed. This is not the case for manslaughter for which sentences cover a wide range.
8.30Because of the discretion it generally affords judges to make decisions tailored to particular cases and offenders, the current sentencing process is well suited to enquiring into and accommodating “hard cases” that might fall through the cracks of the trial structure or encourage strained and artificial arguments. Sentencing also permits a full range of responses rather than the much more limited and often binary possibilities available through verdict. We discuss in Chapter 11 whether New Zealand’s current sentencing laws are fit for purpose for victims of family violence who kill their abusers.