Chapter 8
Partial defences and separate homicide offences

Arguments for and against partial defences and separate homicide offences

8.4If there is a legitimate need for law reform to recognise the reduced culpability of victims of family violence who commit homicide, careful consideration must be given to whether a partial defence or separate homicide offence is the best vehicle for achieving this objective.

8.5There are several arguments that support a partial defence or separate homicide offence.437 First, a partial defence avoids the stigma of a murder conviction. Even if courts consider mitigating factors at sentencing, a person still bears the label of “murderer”. If labels applied by the law have a symbolic function and a stigmatic effect, it may be proper for the law to permit a lesser conviction than murder in cases of culpable, but mitigated, homicide.438

8.6Second, partial defences give juries a route to avoid a binary choice between acquittal and conviction for murder for intentional killings, and separate homicide offences avoid the arguable bluntness of a manslaughter verdict for all culpable homicides that are not murder. In some cases, a manslaughter conviction or a specific homicide conviction may better correspond with the jury’s view of justice than a conviction for murder or a complete acquittal. Juries may convict of murder or acquit altogether, where they would have convicted of manslaughter or a specific homicide offence had those options been available. However, as we noted in Chapter 3, at present, juries often acquit of murder and convict of manslaughter in the absence of any partial defence. Some such verdicts may result from the prosecution not discharging its burden of proof; others may reflect juror sympathy – so-called “jury nullification”. If that is the case, a partial defence or specific homicide offence may legitimise what juries are, in effect, already doing.

8.7Third, some argue that an assessment of the defendant’s culpability should not be concentrated in the hands of judges at sentencing. The law should permit the jury to make decisions, and send signals to judges and the community, about degrees of culpability. Such signals may also provide a factual basis for sentencing. We note that, while there is no minimum sentence for murder and judges can, and do, take into account the presence of family violence and the conduct of the deceased in sentencing for murder, nonetheless, sentences in the cases we have identified are significantly higher compared to manslaughter convictions.

8.8A partial defence may also influence current charging practices and pre-trial plea discussions by encouraging charging of and/or guilty pleas to manslaughter or a lesser specific offence. As noted above, while most defendants are currently charged with murder, very few are ultimately convicted of murder. A clear recognition of reduced culpability in certain circumstances (through either a partial defence or specific offence) may both encourage guilty pleas and avoid unnecessary trials (where a defendant does not claim self-defence) and encourage defendants with an arguable case in self-defence to proceed to trial, knowing a partial defence is available as a back-stop if the complete defence fails.

8.9However, the philosophical difficulties of traditional partial defences and separate homicide offences are well rehearsed and were canvassed in the Commission’s previous reports, discussed in Chapter 4. They have historically – and, as the Victorian experience demonstrates, recently – tended to be the refuge of people whose actions attract little, if any, moral sympathy.

8.10Partial defences may also operate against defendants who have been victims of family violence. As noted at paragraph 6.23, partial defences may encourage juries to enter “compromise” verdicts and demur from properly considering or applying self-defence, or they may “normalise”, as culpable, homicide by victims of family violence.439 Further, the availability of a partial defence may result in unjust pressure to plead guilty to manslaughter in circumstances where there is a legitimate case for self-defence.440 The effect is that the prospect of self-defence-based acquittals will be less than it should be based on a proper assessment of the facts.

8.11Notwithstanding their difficulties, partial defences remain a favoured means of recognising reduced culpability for homicide in most comparable jurisdictions. This means that the jury can make a specific choice about the culpability of the defendant, based on the legal tests for murder and either a partial defence or separate homicide offence. They will not be left with the opaqueness of a conviction for murder or for manslaughter. At present, the choice between murder and manslaughter is the only option the jury has to distinguish between different levels of culpability. Either a partial defence or a separate homicide offence will enable the jury to more finely determine the different level of culpability that a defendant may have.

437These arguments were canvassed in the 2007 Report: Law Commission, above n 8, at 51–52.
438See, for example, Andrew Ashworth Principles of Criminal Law (Oxford University Press, Oxford, 2009) at 250.
439Sheehy, Stubbs and Tolmie, above n 163, at 395.
440Select Committee on the Partial Defence of Provocation, above n 339, at 75.