Contents

Chapter 8
Partial defences and separate homicide offences

Summary

8.39As we noted in Chapter 1 and at the beginning of this chapter, our terms of reference are limited to reviewing the law as it applies to victims of family violence who commit homicide. Our general approach is to limit any reform to victims of family violence only unless we can be satisfied that there are strong reasons for recommending general reform and that the risk of unintended consequences is low.

8.40Broader reform of the criminal law to generally introduce partial defences is arguably beyond the scope of this reference. There are also significant risks of unintended consequences of such broad reforms. This problem was very evident with the 2005 reforms in Victoria, as discussed above. Accordingly, we are currently minded to limit our consideration of a partial defence or separate offence specific to victims of family violence, notwithstanding the challenges of doing so. However, we would welcome submissions on this issue.

8.41We note that none of the options considered above would capture all scenarios involving victims of family violence who commit homicide. Each option focuses on different elements of the offending. Excessive self-defence, killing for preservation, and a separate homicide offence as described above all require an honest belief that the defendant’s actions were necessary to defend him or herself or another. Provocation or “loss of control”, in contrast, requires a loss of control by the defendant, triggered by the deceased’s “provocative conduct”. Diminished responsibility requires the defendant to argue they were suffering from an abnormality of the mind.

8.42We recognise that there are significant challenges with partial defences and, to a lesser extent, separate homicide offences. There are practical and theoretical difficulties in introducing a defence or offence restricted to particular categories of defendant or circumstances of offending, and definition issues will inevitably arise.

8.43We also note the criticism that a focus on partial defences and separate homicide offences may detract attention from meaningful reform of self-defence and sentencing, and put defendants, like victims of family violence, in an invidious position. The Commission made this point in its 2007 Report.470 Queensland’s “killing for preservation” defence has also attracted the same criticism.471 We are also concerned partial defences are, in general, a less than effective labelling solution.

Issues for public feedback

8.44This Issues Paper seeks feedback on the merits of partial defences or a separate homicide offence. We are particularly interested in views on the application of such options in practice. We consider that it is important that we receive feedback from both those with direct experience of cases involving victims of family violence who commit homicide and from the legal profession and members of the public generally.

8.45We invite views on the option of partial defences. A partial defence could have advantages and disadvantages over the existing choice juries have to find a person charged with murder guilty of manslaughter.472 It would effectively make plain the reasoning of the jury, which is currently opaque, when a person is convicted of manslaughter instead of murder.

8.46The second option – enactment of a separate homicide offence – would be novel if it applied only to victims of family violence. However, there is some precedent for a separate offence in the offence of infanticide. A separate homicide offence, limited to circumstances of family violence, would be capable of more precisely reflecting culpability than a generic manslaughter verdict. As a discrete offence, it would have a tailored maximum penalty that reflected the gravity of the crime.

8.47We invite views on the workability and merit in principle of a separate homicide offence and what might be the most appropriate penalty for such an offence. We also invite discussion of principled or practical objections to confining any separate homicide offence to victims of family violence.

Questions for consultation

Q14 Should a new partial defence (or separate homicide offence) – whether of general application or specific to victims of family violence – be introduced in New Zealand?

Q15 Would you support the introduction of a new partial defence or separate homicide offence if it applied only in circumstances where victims of family violence commit homicide?

Q16 If a new partial defence is introduced, would you favour a partial defence based on one of the traditional defences of excessive self-defence, loss of control or diminished responsibility, or a specific defence of self-preservation in the context of an abusive relationship?

Q17 As an alternative, would you prefer the introduction of a separate homicide offence in circumstances where the defendant was acting defensively but with excessive force? 

470Law Commission, above n 8, at 82.
471Edgely and Marchetti, above n 384.
472Criminal Procedure Act 2011, s 110.