Contents

Chapter 3
The current law

Introduction

3.1In New Zealand, any person charged with murder may, broadly speaking, defend the charge in one of three ways, which are to:

(a) contend they were acting in self-defence;

(b) contend they did not have the requisite murderous intent;129 or

(c) plead not guilty and put the prosecution to proof.

3.2Self-defence is a complete defence. If the jury accepts it, the defendant will be acquitted; the killing is not a culpable homicide.130 The alternative strategies in (b) and (c) will not necessarily result in an acquittal. The jury may find that the evidence proves culpable homicide but, because of lack of murderous intent, does not prove murder. In that case, the jury may find the defendant guilty of manslaughter.131 That may also be the case where self-defence is rejected by the jury. This is discussed further below.

3.3A person charged with manslaughter can also claim they acted in self-defence or, again, can simply put the prosecution to proof.

129“Murderous intent” refers to the intention to cause death, or intention to cause bodily injury that is known to the defendant to be likely to cause death and the defendant was reckless to whether death ensues or not: Crimes Act 1961, s 167. The requisite knowledge and intent can be inferred from the nature of the act and the circumstances that the defendant must have known. See: AP Simester and Warren Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, NZ, 2012) at 554.
130If self-defence is established, the killing is not simply excused, it is justified, or permitted, and involves no violation of the deceased person’s rights (see Jeremy Horder Homicide and the Politics of Law Reform (Oxford University Press, Oxford, 2012) at 250–251).
131Criminal Procedure Act 2011, s 110.