Chapter 4
Previous work

The 2001 Law Commission Report

4.4The 2001 Report canvassed criminal defences available to victims of family violence generally but with some emphasis on defences to homicide. That Report also examined the law of sentencing for murder. The Commission concluded various reforms were warranted. Its recommendations were focused on the law of homicide but intended to be of general application rather than specific to victims of family violence, even though that category of defendant had been the impetus for the review. The key recommendations were that:

(a) section 48 of the Crimes Act 1961 (self-defence) be amended:
  • “to make it clear that there can be fact situations in which the use of force is reasonable where the danger is not imminent but is inevitable”;193 and
  • to require that, whenever there is evidence capable of establishing a reasonable possibility that a defendant intended to act defensively, the question of whether the force used was reasonable is always a question for the jury;194
(b) the partial defence of provocation be abolished;195
(c) no new partial defence, whether of general application or specific to battered defendants, be introduced into New Zealand law;196
(d) the mandatory life sentence for murder be abolished and replaced with a sentencing discretion;197 and
(e) the duress defences be reformed (these do not apply to homicide).198

4.5A number of recommendations were ultimately adopted, albeit not immediately and, in the case of sentencing, not in their entirety.

4.6Provocation was not repealed until 2009. There was some question whether repeal might prejudice mentally ill or impaired offenders and some residual doubt about the impact on battered defendants, as discussed below.199

4.7Sentencing reform was somewhat piecemeal. The Sentencing Act 2002 abolished the mandatory life sentence for murder and replaced it with a rebuttable presumption in favour of that sentence: section 102 permits a judge to impose a lesser sentence if “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”.

4.8Subsequently, the Sentencing Council Act 2007 implemented the recommendations that had been made in Sentencing Guidelines and Parole Reform.200 The Sentencing Council has, however, not been pursued, and the 2007 Act is likely to be repealed shortly.201

4.9Other reforms recommended in 2001 were not taken up at all. In particular, the test for self-defence was not amended, and the R v Wang “imminence” requirement remains a restriction on the practical scope of section 48. We discuss the problems with this requirement, and options for addressing them, in Chapters 5 and 7.

The Ministry of Justice’s decision not to amend self-defence

4.10The Ministry of Justice considered and decided against amending self-defence in 2003. It concluded legislative change was unnecessary because, while the Court of Appeal in R v Wang had glossed the “reasonable force” test with a requirement for “immediacy of life-threatening violence”, Wang did not appear to have been strictly followed.202 In R v Oakes, a claim of self-defence had been put to the jury even where it did not appear the defendant had acted on an immediate threat.203

4.11The Ministry also concluded amendment was otherwise undesirable. It noted, first, that the fact some defendants fail on self-defence does not mean juries are applying an imminence or immediacy test. A jury may, for example, reject self-defence if it does not accept the defendant genuinely believed their circumstances warranted the use of force.

4.12The Ministry also considered there was merit in the conclusion of the Criminal Law Reform Committee in its 1979 Report on Self Defence that a self-defence provision should be framed in general terms,204 with the “infinite variety” of factual scenarios that may constitute reasonable force left for case-by-case assessment. “[W]hether the proximity of danger on a continuum from immediacy to inevitability justifies the use of force”, the Ministry considered, “is best assessed in the circumstances of each case”.205

4.13Since 2003, however, despite the Ministry’s expectation, the Courts have broadly accepted that Wang remains authoritative.

193Law Commission, above n 7, at [32].
194At [42].
195At [120].
196At [86].
197At [151].
198At [198], [201] and [208].
199Law Commission, above n 8, at 6.
200Law Commission Sentencing Guidelines and Parole Reform (NZLC R94, August 2006).
201The Hon Simon Power indicated in early 2008 that the Government did not intend to pursue the Sentencing Council, preferring to put the money set aside for it into funding services for victims. It appears the view was taken that the Council would be undesirably bureaucratic and may reduce sentence levels, to which the Government was opposed. See: “National to scrap sentencing council” (2 August 2008) Stuff <>. The Sentencing Council Act 2007 is now listed for full repeal in Schedule 1 to the proposed Statutes Repeal Bill, an exposure draft of which the Parliamentary Counsel Office is currently seeking feedback on. In the draft Bill’s explanatory material, it is stated that “The Sentencing Council Act 2007 came into force on 1 November 2007 but was not implemented. No appointments have been made to the Council. Repealing the Act will clarify that the Sentencing Council will not be created” (Statutes Repeal Bill (Consultation Draft) (explanatory material) at 13).
202Ministry of Justice Criminal Defences Discussion Paper: Provocation and Other Partial Defences, Self Defence, and Defences of Duress (2003) at [32].
203At [32.1], referring to R v Oakes (1995) 2 NZLR 673 (CA), in which the Judge left self-defence to the jury notwithstanding the clear absence of an imminent threat. Mrs Oakes had suffered abuse over an 11-year period and ultimately killed her husband by dissolving a large number of tablets in a cup of coffee.
204Criminal Law Reform Committee Report on Self Defence (Report 15, November, 1979).
205Ministry of Justice, above n 202, at [35].