Chapter 9
Other options for reform

Improving the Prosecution Guidelines

9.6As discussed in Chapter 3, Sheehy, Stubbs and Tolmie argue that prosecutors in Australia, Canada and New Zealand are excessively inclined to charge victims of family violence who have committed homicide with murder:480

The data raise the question of whether prosecutors are exercising their public office in a manner which serves the interests of justice. In making this point we recognise that charging of murder may be standard prosecutorial practise in some of the jurisdictions under examination and thus may also operate unfairly in respect to other classes of defendants.

9.7They identify a “pressing need” for the development of appropriate guidelines governing the prosecutorial charging practices in, and conduct of, such cases.481 Prosecutors in New Zealand are governed by the Solicitor-General’s Prosecution Guidelines.482 These Guidelines set out the criteria for determining the circumstances under which charges are laid. The Guidelines are of general application. There are no specific guidelines as to when murder or manslaughter charges should be laid against victims of family violence.

9.8The most relevant is Guideline 5: The Decision to Prosecute. This Guideline covers all the factors to be taken into account in the prosecution decision. In essence, the test is whether there is sufficient evidence to provide a reasonable prospect of conviction and whether it is in the public interest to prosecute.

9.9The latter element is not so relevant in the case of serious assaults or homicides, as the seriousness of the offence will usually make prosecution in the public interest. We understand that such cases will usually be determined on the evidential tests. However, there is a caveat to this point. The prosecutor must properly assess whether self-defence can be legitimately pleaded and its prospects of success. If it is probable that self-defence will succeed, a prosecution should not be undertaken.

9.10Guideline 8. The Choice of Charges is also relevant. Guideline 8.1 states that the nature of the charge “should adequately reflect the criminality of the defendant’s conduct as disclosed by the facts to be alleged at trial”. Thus, a prosecutor ought to make an informed judgement as to whether the proper charge should be murder or manslaughter. The prosecutor ought not to take a default position that the jury can determine this question.

9.11Guideline 8.2 also provides that a prosecutor should not inflate the seriousness of the charge in order to increase the likelihood that the defendant will offer to plead guilty to a lesser charge.

9.12As noted at paragraph 3.28 above and while mindful of the small size of the case analysis, the rate of murder conviction in the cases we have identified could suggest the Prosecution Guidelines (which comprise an evidential sufficiency test and a public interest inquiry) are not being properly applied or that alternative considerations should apply in these cases.

9.13In New South Wales, the data compiled by Sheehy et al483 concerned the Select Committee on the Partial Defence of Provocation to such extent that it recommended that the Director of Public Prosecutions give serious consideration to the adequacy of the existing Prosecution Guidelines as they relate to homicides occurring in a domestic context.484 The Select Committee was of the view that specific guidelines were required to assist prosecutors to determine the appropriate charge to lay against defendants in circumstances where there is a history of violence towards the defendant.485

9.14One option could be to recommend the Solicitor General considers including guidance in the Prosecution Guidelines on prosecutorial consideration of the circumstances of victims of family violence. This could be included in Guideline 5.4 and in the public interest considerations for prosecution in Guideline 5.8.

Questions for consultation

Q19 Do you consider the Prosecution Guidelines should include specific guidance on charging and/or plea discussions where family violence against a defendant accused of committing homicide is in issue?

480Sheehy, Stubbs and Tolmie, above n 163, at 395.
481At 399.
482Crown Law, above n 155.
483That data indicated that prosecutors were charging murder in matters involving “battered women type defendants”, in circumstances where there were defensive elements and where a plea to manslaughter was subsequently accepted in exchange for the murder charge being dropped. As noted above, there are few cases in New Zealand that are resolved by way of manslaughter plea, but a much larger number result in a manslaughter verdict at trial.
484Select Committee on the Partial Defence of Provocation, above n 339, at 167.
485At 167–168.