Chapter 8
Partial defences and separate homicide offences

A separate homicide offence

8.32An alternative to a partial defence to murder is a separate homicide offence. While both options share the same purpose – to recognise the reduced culpability of a defendant who might otherwise be charged and convicted of murder – a separate homicide offence is structurally different in that it would create a separate offence in the Crimes Act. That means a person would be able to be charged with the separate homicide offence instead of murder if the circumstances of the offending reflected the elements of the offence.

8.33A separate homicide offence would be more specific than the general offence of manslaughter, which covers a wide range of unlawful actions from the relatively minor that nevertheless cause the death of another through to actions that stop just short of murder. It could be limited to victims of family violence, along the lines of the offence of infanticide, in section 178 of the Crimes Act, or of general application, akin to the Victorian experience of defensive homicide.

8.34Infanticide is provided for in section 178 of the Crimes Act, which states that a woman can be charged with infanticide if she causes the death of her child in a manner that amounts to culpable homicide and where, at the time of the offence, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth or some other consequent disorder.462 Section 178(2) also provides that, where a defendant is charged with murder or manslaughter, the jury may alternatively return a verdict of infanticide. The maximum penalty for infanticide is three years’ imprisonment.
8.35In Victoria, a separate offence of “defensive homicide” existed between 2005 and 2014 and reduced culpability from murder to manslaughter. It essentially applied in cases of “excessive self-defence”. Although it had been introduced to provide for victims of family violence who commit homicide, it was of general application, and as we discuss at paragraphs 6.64–6.66 above, this quickly proved to be a problem, as it was primarily used by male offenders with a violent disposition.463 It was subsequently repealed in 2014.464 The Victorian experience suggests that, if such an offence is to be publicly acceptable, it should be limited to victims of family violence who commit homicide.

8.36A separate homicide offence, as we envisage it, would be limited to victims of family violence who kill their abuser. The key elements of the offence would be:

(a) the defendant was a victim of family violence perpetrated by the deceased;
(b) as a result of the family violence, the defendant considered they had no option other than to seriously injure or kill the deceased – that is, the defendant was acting to defend themselves or another in the circumstances as they perceived them to be; but
(c) the force used by the defendant was not reasonable in the circumstances as the defendant believed them to be.

8.37This would not affect the operation of self-defence in section 48 of the Crimes Act, which, as a general defence, could also be argued where a defendant is charged with this offence.

8.38The statute would prescribe a maximum sentence for this offence. Since the offence is envisaged to be less culpable than murder, the maximum sentence would not be life imprisonment. Our preliminary view is that a maximum sentence should be no more than 10 years. This would be consistent with the minimum non-parole period for life imprisonment.465 Other offences with a maximum term of imprisonment of 10 years include being a party to murder outside New Zealand,466 conspiracy to commit murder467 and injuring with intent.468 However, we note that the statutory maximum penalty for infanticide is three years’ imprisonment.469
462Or by reason of the effect of lactation or any disorder consequent upon lactation. Crimes Act 1961, s 178.
463Victoria Department of Justice, above n 322, at 8.
464Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic), s 3.
465Sentencing Act 2002, s 103.
466Crimes Act 1961, s 68.
467Ibid, s 175.
468Ibid, s 189.
469Crimes Act 1961, s 178.