Chapter 8
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.682 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.683 The Commission considered that questions about who should be labelled a “murderer” had become identified with questions about punishment.684 This recommendation was not taken up, but degrees of murder are used in Canada685 and in American law686 and have previously been proposed in New Zealand.687

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.

Partial defencesTop

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.688 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8.17New Zealand repealed its only general partial defence – provocation – in December 2009689 after two Law Commission reports recommending abolition in 2001 and 2007.690 On both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.691

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.692 The Law Commission noted this in 2007.693 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”.694
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.695
8.21Examples of specific offences include infanticide,696 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.697

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.698
8.24An apparent example in the context of family violence is R v Woods,699 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”.700 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”.701 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.702 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 imprisonment703 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.704
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.705 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.
682See for example Brenda Midson “Degrees of blameworthiness in culpable homicide” [2015] NZLJ 220 at 234. See also Jeremy Horder Homicide and the Politics of Law Reform (Oxford University Press, Oxford, 2012) at 92.
683Law Commission of England and Wales Murder, Manslaughter and Infanticide (Law Com No 304, 2006) at 4.
684At 9.
685Criminal Code RSC 1985 c C-46, s 231.
686Law Commission of England and Wales, above n 683, at 25.
687Degrees of Murder Bill 1996 (157). See also Midson, above n 682, at 234; and Law Commission Battered Defendants (NZLC PP41, 2000) at 46.
688See discussion in Nicola 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 111. See also Law Commission of England and Wales, above n 683, at 48.
689Crimes (Provocation Repeal) Amendment Act 2009.
690Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001); and Law Commission The Partial Defence of Provocation (NZLC R98, 2007).
691Law Commission Some Criminal Defences with Particular Reference to Battered Defendants, above n 690, at 41–42; and Law Commission The Partial Defence of Provocation, above n 690, at 11 and 72.
692The range of killings manslaughter captures is more or less wide depending on how a particular jurisdiction’s homicide law is structured. It includes cases of “involuntary” manslaughter, which are unlawful killings that are not murder because of the absence of murderous intent and, where partial defences exist, cases of “voluntary” manslaughter, which are unlawful killings that are not murder even though the defendant may have killed with that intention. See AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at 560. See also Law Commission The Partial Defence of Provocation, above n 690, at 53. We consider the implications of this potentially wide capture in connection with the “fair labelling” argument for partial defences, in Chapter 10.
693Law Commission The Partial Defence of Provocation, above n 690.
694At 53.
695Horder, above n 682, at 92; and Law Commission of England and Wales, above n 683, at 9.
696As noted above, infanticide is a hybrid provision; it is a separate substantive homicide offence, but it can also be pleaded as a form of defence to a charge of murder or manslaughter. It is a partial defence to the extent it results in a conviction of less gravity but not an acquittal. See paragraph [3.11] and the footnotes contained therein.
697See the discussion in Kate Fitz-Gibbon Homicide Law Reform, Gender and the Provocation Defence: A Comparative Perspective (Palgrave Macmillan, Hampshire, 2014) at 122–126.
698For a general discussion (in the English context) of opportunities for discretion in cases of homicide by family violence victims, see Martin Wasik “Cumulative Provocation and Domestic Killing” [1982] Crim L Rev 29 at 32–34.
699R v Woods HC Gisborne CRI-2011-016-000048, 10 June 2011.
700At [20].
701At [18].
702Life imprisonment is, however, mandatory in New South Wales if the person killed is a police officer in certain circumstances: Crimes Act 1900 (NSW), s 19B.
703There is a presumption of life imprisonment for murder in New Zealand and Western Australia and, formerly, in New South Wales. For discussion, see Law Reform Commission of Western Australia Review of the Law of Homicide: Final Report (Project 97, September 2007).
704R v Wickliffe [1987] 1 NZLR 55 (CA).
705See Law Commission The Partial Defence of Provocation, above n 690, at 48–49.