Chapter 1
Setting the scene

The Commission’s approach

1.25The Commission is required to report to the Minister by 31 March 2016.

1.26The Commission has convened an expert panel to advise it on this reference. The panel is made up of academics, Crown and defence counsel, judges and victim advocates.

1.27Given the relatively condensed timeframe for our review, we rely on the empirical research conducted by the FVDRC to supplement our own analysis of reported cases. We have also drawn extensively on the law reform work in other jurisdictions, particularly Victoria, Western Australia, New South Wales, Queensland, Tasmania, England and Wales, and Ireland.

Guiding principles

1.28We have identified the following three principles to guide our examination of the problems in this area of the law and our analysis of the options for reform:

(a) The law should apply equitably to all defendants, including victims of family violence, and should strive to be free from any form of gender or other bias.
(b) The law of homicide should reflect the context in which homicides typically occur, and any reform must be driven by an understanding of the actual context in which victims of family violence commit homicide.
(c) The law of homicide should reflect community values and, in particular, the sanctity of life, balanced against the individual’s right to safety and to be free from torture and cruel or degrading treatment.

1.29We propose to have regard to these principles throughout our review. They will represent the underlying objectives of any recommendations for reform.

Removing bias

1.30We consider an appropriate guiding principle is that the law of homicide and defences to homicide should achieve substantive equality as between all classes of defendant.

1.31Because victims of family violence who commit homicide are typically (but not exclusively) female, particular attention needs to be paid to identifying and removing any gender bias in the law.

1.32Gender equality does not simply require the law to be gender neutral. Rather, the law must not have the actual effect of discriminating against one gender.13 The emphasis is therefore on substantive equality before the law, which in turn leads to equality of results or equality of outcome. In some circumstances, this may require State intervention:14

Achieving substantive equality requires taking both historical inequalities and the present conditions of women in a certain context into account. Substantive equality may consequently require positive action by the State to address the specific disadvantages and needs of women. The Convention on the Elimination of All Forms of Discrimination against Women encompasses substantive equality, recognizing that gender-neutral laws can have discriminatory effects and that formal equality is not enough to address them.

1.33Accordingly, offences and defences must be flexible enough and appropriately formulated to cater for differences between genders.

1.34We also note that Māori women are over-represented as primary victims who commit homicide.15 We must therefore ensure the law is free from any racial or cultural bias.

Homicide law should reflect the context in which homicides typically occur

1.35The substantive law governing defences to homicide should reflect the context in which homicides typically occur.16 That is, reform should not be based on abstract philosophical principles or existing legal categories but contemporary medical and scientific knowledge, community standards and the current social context in which homicides are committed.
1.36It is important that our review and any recommendations for reform are driven by an understanding of the actual context in which victims of family violence commit homicide. People’s lives and the circumstances of their offending may not fit easily into legal categories.17 Members of our expert panel have told us that victims of family violence who commit homicide are not readily accommodated by existing formulations of self-defence, lack of intent or provocation (when that defence was still part of New Zealand’s law).

1.37We explore the social context in which victims of family violence commit homicide in Chapter 2 of this Issues Paper.

Homicide law must reflect community values placed on the right to life and an individual’s right to safety

1.38Defences to homicide must appropriately balance the individual’s right to life against the right to safety. Like other criminal laws, defences to homicide engage various intersecting human rights. We must, therefore, have regard to the rights to life and to freedom from torture or cruel, degrading or disproportionately severe treatment, which underpin our law and are given expression in the New Zealand Bill of Rights Act 1990.

1.39Currently, the only justification for killing another person recognised under New Zealand law is acting in self-defence or the defence of others. We do not propose that anything other than self-defence or defence of another should justify and therefore completely exculpate intentional killing.

1.40Whether intentional killing (or infliction of life-threatening injury) that is not justified by self-defence may still be partially justified or excused, so that it is legally equivalent to unintentional killing (manslaughter), is a question that involves difficult and complex policy choices. We explore in this Issues Paper whether and in what circumstances homicide committed by a victim of family violence should be partially excused.

13United Nations Women’s Rights are Human Rights (United Nations, New York ; Geneva, 2014) at 30.
14At 31.
15Family Violence Death Review Committee, above n 2, at 44.
16A similar approach was also adopted by the law reform commissions in Victoria and Western Australia. See: Victorian Law Reform Commission Defences to Homicide: Final Report (2004) at 14–15; Jenny Morgan Who Kills Whom and Why:  Looking Beyond Legal Categories (Victorian Law Reform Commission, Melbourne, 2002) at 1–2; Law Reform Commission of Western Australia Review of the Law of Homicide (Project 97, September 2007) at 9.
17Morgan, above n 16, at 2.