Chapter 3
The current law

The broader criminal legal system

3.21In order to fully understand how the law operates in respect of victims of family violence who commit homicide, it is important to consider the broader criminal legal system and three aspects in particular, which are:

(a) the decision to lay charges;
(b) plea discussions and arrangements; and
(c) the role of the jury.

The decision to lay charges and negotiate a guilty plea

3.22We understand that, in accordance with the Solicitor-General’s Prosecution Guidelines, a victim of family violence who kills their abuser will, like any defendant, generally be charged with murder if the test for prosecution is met. This comprises an evidential test and a public interest test. The evidential test requires credible evidence upon which a jury could “reasonably be expected to be satisfied beyond reasonable doubt” that the defendant committed the offence.155 This could be met in respect of murder if murderous intent (including intent to cause injury that the defendant knew would be likely to cause death and therefore was reckless to whether death ensued or not) could be inferred from the act itself and the circumstances the defendant must have known.156 As discussed above, in murder cases, the jury can find the defendant guilty of manslaughter if they find that the defendant killed but lacked murderous intent.
3.23We also understand that, where the evidence otherwise supports a prosecution for murder, adjudication of a defendant’s self-defence claim may be regarded as a matter for the jury, not prior evaluation by the prosecutor. Decisions not to prosecute in respect of homicide are rare,157 and we are not aware of any such decision being made in relation to a victim of family violence who had killed their abuser. We have also observed that, in most of such cases, the defendant is charged with murder.158 However, very few defendants are convicted of murder.159 Most are convicted of manslaughter, and some are acquitted.160
3.24While our case sample is too small to draw any firm conclusions, we do observe that the rate of conviction for murder in these cases does appear to be lower than the overall rate of conviction for murder in intimate partner homicides.161 It may be asked why a majority of cases in which murder is charged result in a conviction for manslaughter.
3.25On one level, the answer is clear – the jury will convict the defendant of manslaughter rather than murder when they are satisfied that the defendant killed the deceased but lacked murderous intent.162 The role of the jury is discussed below.
3.26However, some commentators have raised concerns regarding charging practices and plea negotiations in these cases. Julia Tolmie, Elizabeth Sheehy and Julie Stubbs have reviewed how victims of family violence who kill their abusers are charged in the Australian jurisdictions, Canada and New Zealand. They found:163

The resolution of cases [in New Zealand] seems markedly out of alignment with Australia and Canada… Guilty pleas were offered and accepted in 10 percent of New Zealand cases compared to 63 percent of Australian and 56 percent of Canadian cases, with the result that 90 percent of cases proceeded to trial, as compared to 34 percent in Australia and 42 percent in Canada – all on charges of murder. Murder convictions occurred in 40% of New Zealand cases, as opposed to only 3 percent of Australian cases and 5.5% of Canadian cases. [Table omitted]

Although, as noted above, we cannot draw definite conclusions because of the small number of cases that have occurred in New Zealand in this period, the data raise the disturbing possibility that the New Zealand criminal justice system is considerably more punitive in its response to battered women defendants who have killed their violent abusers. Furthermore, the data may suggest that the legal profession in New Zealand, including lawyers acting on behalf of the Crown, have been impervious to recent international developments, particularly contemporary social science understandings about how the phenomenon of domestic violence operates in cases that escalate to homicide and the “social entrapment” of the targets of domestic violence (see Stark, 2007; US Department of Justice and US Department of Health and Human Services, 1996).

Whilst the percentage of acquittals in New Zealand appears to be lower than it should be (if it includes cases such as Wickham), one could argue that it is consistent with smaller Australian states such as Queensland and WA, which have similarly small numbers of cases. However, New Zealand differs from comparable jurisdictions in the prosecutorial practice of refusing to accept guilty pleas, instead proceeding to trial on murder charges, and in the number of murder convictions that result. New Zealand had four murder convictions (of 10 cases), which is the same number of murder convictions as all the states of Australia combined with Canada (from a total of 103 cases).

3.27Our own case review also identified a high proportion of cases going to trial in New Zealand and, of those cases, a high proportion of defendants who are charged with murder rather than manslaughter.164 Only three of the 17 defendants who were charged with murder pleaded guilty – two to manslaughter and one to murder. However, in some sentencing decisions following a verdict of manslaughter after trial, the judge acknowledged the defendant would have pleaded guilty to manslaughter to avoid a trial, had that been on the table.165 While we found that a much smaller percentage of cases actually resulted in a murder conviction (17 per cent), this is still higher than rates of conviction identified in Australia and Canada.
3.28However, we are reluctant to draw any firm conclusions from these observations, given the small size of our case sample. Further, these findings may not reflect current practice, given that the 2013 iteration of the Prosecution Guidelines expressly sanctions plea negotiations. The ability to request a sentence indication under the Criminal Procedure Act 2011 may also affect how defendants make plea decisions.166 We are, in addition, mindful there may be incentives operating in the Australian and Canadian jurisdictions that are not present in New Zealand, which may explain the higher proportion of guilty pleas (such as financial incentives to avoid the cost of a trial). We do not have the information to determine whether a guilty plea in any given case has been offered or accepted on the basis of a critical assessment of the facts or because of some other incentive.

3.29However, the rate of murder conviction in the cases we have identified could suggest the Prosecution Guidelines are not being properly applied or that alternative considerations should apply in these cases. The Guidelines are discussed further in Chapter 9 below.

The role of the juryTop

3.30The primary function of the jury is to determine the relevant facts in light of their assessment of the defendant’s credibility and apply the law to reach a verdict. Juries also have an important role in acting as the “community conscience”, representing what the community regards as fair and just and acting as a safeguard against arbitrary and oppressive government.167 Jury deliberations are conducted in private and are protected from outside scrutiny, and the jury is not required to give reasons for their verdict.168
3.31Murder trials are heard by juries in the High Court.169 As noted above, on a charge of murder, the jury has the option to find the defendant guilty of manslaughter.170 That is, the jury does not have the binary choice of “guilty” or “not guilty” to murder; they can also acquit the defendant of murder but return a verdict of guilty to manslaughter.

3.32On one view, if every victim of family violence who commits homicide is charged with murder, the question whether the defendant should be convicted of murder or manslaughter or acquitted on the basis of self-defence is left to the jury. This approach can be seen as one of the advantages or disadvantages of the jury system, depending upon one’s perspective. It allows the jury to apply community values in considering whether the prosecution has proved the homicide is culpable and, if so, to what degree.

3.33Lack of murderous intent (including intent to cause injury likely to result in death) is, since the repeal of provocation, the only legitimate ground for reducing a murder charge to manslaughter. However, in some of the murder trials we reviewed, it is difficult to explain a manslaughter verdict on the basis of lack of murderous intent. In these cases, the fatal injury is of a kind that most people would regard it as likely to cause death, yet the defendant is found not guilty of murder but guilty of manslaughter.

3.34For example, in R v Wickham, the defendant was charged with murder for killing her husband with a single shotgun blast. The defendant told police that she had killed her husband as “he’d tried to throttle me again”, that he had been abusive and she’d “had enough”.171 While the jury rejected her claim of self-defence, it found her guilty of manslaughter “on the apparent basis that the killing was accidental”, despite the fact that the defendant first called the police, then went to her bedroom to get the shotgun before returning to the lounge and shooting her husband.172 On the facts, it was clearly open to the jury to infer murderous intent.
3.35Another example, where the judge has sought to explain the jury’s verdict, is R v Paton.173 In that case, the defendant was charged with the murder of her partner. They began arguing after drinking. The deceased attacked the defendant, and she attempted to defend herself. While the sentencing judge noted that she had facial and other injuries consistent with being beaten the next day, “that was nothing new… You lived long-term within a violent relationship, and beatings were sadly a routine part of that relationship.”174 The deceased followed the defendant into the kitchen, and the defendant grabbed two large kitchen knives. On the defendant’s evidence, the deceased challenged her to use one of them, and she stabbed him in the neck, killing him. The jury found the defendant guilty of manslaughter, not murder. Dobson J, during sentencing, discussed the verdict:175

The jury rejected your claim that you acted in self-defence, but found that you did not have murderous intent. Now murderous intent can be present where you do not actually intend to kill, but intend to cause injuries of a type that are likely to kill, and where you are reckless as to whether death does occur. A stab wound to the neck with a large kitchen knife is likely to kill the victim. You may recall the evidence from the pathologist that the injury was effectively “unsurvivable”. I treat the jury analysis as recognising that the view as to the risk of death from a stab wound of this kind, by a woman in your position, would not be analysed as it would be by most of us. The prolonged history of beatings conditioned you to downplay the risks and consequences of violent attacks, so that a woman in your position would not appreciate the risk of causing death when others, who had not experienced the sad domestic history you had, could reasonably be expected to recognise that risk.

3.36His Honour assessed the offending as at the high end of the scale and sentenced the defendant to five years’ three months’ imprisonment. He put the verdict down to a lack of appreciation of the risk of death as an effect of the history of family violence within the relationship.

Jury nullificationTop

3.37Jury nullification occurs where the jury deliberately does not apply the law to the evidence presented to it as, in the opinion of the jury, doing so would be contrary to its view of the justice of the case. The concept is an accepted and important part of the jury system. The Canadian Supreme Court in R v Sherratt stated:176

The jury, through its collective decision making, is an excellent fact finder; due to its representative character, it acts as the conscience of the community: the jury can act as the final bulwark against oppressive laws or their enforcement.

3.38The United States Supreme Court has expressed the importance of the jury as the guardian of liberty and protector of community values on many occasions. In Taylor v Louisiana, the Court stated:177

The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional, or perhaps overconditioned or biased response of a judge.

3.39The previous Law Reform Commission of Canada has also referred to this role of the jury. In its Working Paper The Jury in Criminal Trials, it observed that practical studies and anecdotal experience of legal professionals suggested that, when the jury deviates from a strict application of the law, it most often does so in a manner consistent with shared community notions of equity as opposed to prejudice.178 It concluded:179

We think that a case can be made for retaining the jury because of its ability to nullify what it regards as oppressive laws. Even though the number of cases in which the jury acts as a check upon arbitrary government or arbitrary enforcement of the law is small, the protection is an important one and is applied in cases of great public importance. As well, the publicity attendant upon a jury acquittal in the face of an oppressive act of the state is itself a deterrent to the arbitrary conduct on the part of state officials. The resulting publicity alerts the public to possible abuses of power. It is also symbolic of the fact that centralised government power must be exercised in a way which is ultimately responsible to the community’s needs and values.

Jury nullification in murder cases

3.40Jury nullification has a particular role in murder cases. The concept goes beyond the legitimate choice that a jury has to find the defendant guilty of manslaughter instead of murder where it is not satisfied that the defendant had murderous intent. Jury nullification occurs when the jury is unwilling to find a person guilty of murder, even when the nature of the act causing death would seem to enable an inference to be drawn that the defendant had the requisite intent.

3.41For example, a jury may accept that the defendant was a victim of family violence and was acting defensively or out of self-preservation but did not satisfy the reasonable force requirement in section 48 in order to be acquitted on the basis of self-defence. On a strict interpretation of the law, where the defendant’s conduct suggests the necessary intent was present, the proper verdict, notwithstanding the defendant’s motivations, is arguably murder – there is no “intermediate category of exculpation” in New Zealand for excessive self-defence.180 Nonetheless, a jury might instead find such a defendant guilty of manslaughter. In such circumstances, the jury may have effectively allowed the defendant to have the benefit of a partial defence (such as excessive self-defence), even though no relevant partial defence exists in New Zealand law. This would be an example of jury nullification since the jury did not correctly apply the law to the evidence.
3.42Referring to the case of Wickham discussed at paragraph 3.34 above, a shotgun blast to the chest would normally be suggestive of intent to kill or to cause injury likely to kill. Having rejected the defendant’s claim of self-defence, on a strict interpretation of the law, the defendant should have been convicted of murder. However, as one commentator notes:181

[This outcome is] undoubtedly fair if moral blameworthiness is the basis of criminalisation. In the case of Dale Wickham, taking into account the longstanding history of abuse coupled with threats to kill her and the fact that she suffered from multiple sclerosis, convicting her of murder for a low degree of moral blameworthiness would be unjust.

3.43This phenomenon has been noted in other jurisdictions. The Queensland Law Reform Commission noted that, while the law in that state does not provide for manslaughter “on the basis of excessive force in self-defence”, in several cases it examined as part of its review of the defence of provocation, case outcomes appeared to reflect that position “de facto”.182

3.44Literature on how juries view victims of family violence who are charged with murder also supports the existence of this phenomenon. Australian research into cases where victims of family violence were convicted of manslaughter identified that, in many of those cases, the act that caused death would seem to have permitted an inference the defendant had murderous intent.183 In those cases, the effect of family violence on the defendant’s psychological/emotional state, together with the defendant’s fear or anger before the killing, are used to explain the finding of lack of intent.184
3.45In that study, it was concluded that lack of intent was being used as a “defacto defence of domestic violence”:185

Although difficult to verify, my view is that in some cases reliance on lack of intent was used to account for a manslaughter conviction in circumstances where the accused’s circumstances called for a compassionate outcome, rather than a strictly legal one… It was used as a ‘defacto’ defence of domestic violence. There has been recognition by prosecutors and judges that women who kill in response to a history of domestic violence (physical and mental abuse) do not conform to the socially endorsed construct of the ‘murderer’. In some sentencing comments, there is clearly sympathy for the difficult life that the accused has led as a result of the deceased’s physical and psychological abuse. However, while there has been judicial recognition of the battered woman’s claim to sympathy, there has been a reluctance to recognise her actions as legitimate self-defence… The motive is self-preservation but its form is one that the law does not (or is not willing to) recognise. Yet the accused is not a ‘murderer’, so the conduct of the accused has to be shaped into a partial defence to murder – provocation or lack of intent.

3.46It is, of course, impossible to be certain in any given case why a jury reaches a particular verdict. However, the fact a jury can find a person charged with murder guilty of manslaughter may be one way a jury can apply community values in a homicide case. Of course, it may also be that the jury is simply not satisfied the prosecution has proved the defendant had murderous intent. For whatever reason and notwithstanding the absence of any relevant partial defence in New Zealand, juries appear reluctant to convict a victim of family violence of murder.

3.47Some argue that, while sympathetic verdicts might be returned in some cases, it is objectionable that victims of family violence must rely on the sympathy of the jury, rather than legal principles, as a basis for their defence.186 That is, if juries are already delivering sympathetic verdicts based on de facto partial defences, the law should be amended to legitimise that practice. As one commentator puts it:187

The fundamental problem with these decisions [where the verdict does not reflect the proper application of the law] is that they signal that the outcome for a defendant depends upon the whims of the jury rather than the application of legal principles. If these decisions continue unchecked, inconsistent outcomes will result. In other words, if there are degrees of culpability then it would be as well to be upfront about them.

Limitations on jury discretionTop

3.48In recent years, there has been greater judicial direction to juries on how they should consider their task. Judges now routinely provide “question trails” to assist the jury in its deliberations. They are intended to inform the jury of the issues to be decided in a structured, logical sequence either as lists of questions or in the form of a flowchart. They “collapse the relevant legal issues into a number of factual questions that guide the jury to its verdict”.188
3.49We note that informed researchers into jury practice have suggested that the increasing use of “question trails” may leave less scope for jury nullification.189 The suggestion is that, with the structure of “question trails” to guide their assessment, juries will have considerably less latitude to depart from the requirements of the law. However, we are not in a position to assess whether juries have changed their approach as a result of “question trails”. There are insufficient cases that would enable the Commission to come to such a conclusion, and in any event, jury deliberations are conducted in secret, and their reasons for arriving at verdicts remain unknown.
155Crown Law Solicitor-General’s Prosecution Guidelines (2013) at [5.3].
156Simester and Brookbanks, above n 129, at 554.
157That is, the public interest test in the Solicitor-General’s Prosecution Guidelines is likely to be usually met in respect of homicide, given the value placed on the sanctity of human life.
158In 14 of the 16 cases that went to trial, the defendant was charged with murder.
159Only three of the 14 defendants charged with murder that went to trial were convicted of murder.
160Eight of the defendants charged with murder that went to trial were convicted of manslaughter, and three were acquitted.
161The FVDRC observes that, out of 44 intimate partner violence (IPV) homicides between 2009–2012 where a defendant was charged and the case was concluded, 31 (70 per cent) were convicted of murder. Ten (33 per cent) were convicted of manslaughter and three (seven per cent) were acquitted. See: Family Violence Death Review Committee, above n 2 at 48. Earlier research undertaken by the Ministry of Social Development identified that, from 2002–2006, 50 defendants were charged with murder in relation to a couple-related homicide (including homicides where the motivation arose from relationship distress, but the victims were people in addition to or instead of the partner). That research identified that 29 defendants were convicted of murder (58 per cent), nine were convicted of manslaughter (18 per cent), two were acquitted (four per cent) and in 20 per cent of cases, the outcome was unknown. See: Martin and Pritchard, above n 26, at 36.
162That is, not falling within section 167 of the Crimes Act 1961.
163Elizabeth Sheehy, Julie Stubbs and Julia Tolmie “Battered Women Charged with Homicide in Australia, Canada and New Zealand: How Do They Fare?” (2012) 45 Australian & New Zealand Journal of Criminology 383 at 393–395.
164The statistics from our review of New Zealand cases differ from those of Tolmie, Sheehy and Stubbs, given the different time frames considered. Tolmie et al identified 10 cases that were resolved from 2000 to 2010. We identified 23 cases that were resolved between 2001 and 2015. Our analysis suggests guilty pleas were accepted in 30 per cent of cases, with 70 per cent of cases proceeding to trial, all but two of which on a charge of murder. Murder convictions occurred in 17 per cent of cases, manslaughter convictions in 65 per cent of cases and acquittals in 17 per cent (rounded to nearest percentage).
165R v Mahari, above n 35; R v Suluape, (2002) 19 CRNZ 492 (CA).
166See: Criminal Procedure Act 2011, Part 3, Subpart 4 – Sentence indications.
167The functions of juries are discussed in detail in a previous Report: Law Commission Juries in Criminal Trials (NZLC R69, February 2001).
168Neil Cameron, Susan Potter and Warren Young “The New Zealand Jury” (1999) 62 Law and Contemporary Problems 103 at 129–130.
169With the exception of the limited situation in section 103 of the Criminal Procedure Act 2011 relating to juror intimidation.
170Criminal Procedure Act 2011, s 110.
171“Murder-accused lived in fear” (4 October 2010) Stuff <>.
172Brenda Midson “Degrees of Blameworthiness in culpable homicide” (2015) 6 New Zealand Law Journal 220 at 231.
173R v Paton, above n 86.
174At [3].
175At [11]–[12].
176R v Sherratt (1991) 1 SCR 509 at 523–524.
177Taylor v Louisiana 419 US 522 (1975) at 530.
178Law Reform Commission of Canada The jury in criminal trials: Working Paper 27 (1980) at 10.
179At 12.
180Simester and Brookbanks, above n 129, at 500.
181Midson, above n 172, at 231.
182Queensland Law Reform Commission A review of the excuse of accident and the defence of provocation (Report No 64 September 2008) at [15.131].
183Rebecca Bradfield “Women Who Kill: Lack of Intent and Diminished Responsibility as the Other ‘Defences’ to Spousal Homicide” (2001) 13 Current Issues Crim Just 143 at 151–152.
184At 152.
185At 155–156.
186Victorian Law Reform Commission, above n 16, at 67.
187Midson, above n 172, at 231.
188Peter Berman “Question trails in jury instruction - a note of caution” (2012) 24 Judicial Officers’ Bulletin 27.
189Based on discussions in the course of this reference that the Law Commission had with researchers into jury practice.