Stuff co.nz 27 July 2016
The laws covering murder and manslaughter in New Zealand need reform, writes Massey University law professor Chris Gallavin for the Faces of Innocents series.
Reform is required to ensure fairness to defendants, to avail the Crown of more options when charging (and plea bargaining), and to support judges when sentencing.
Murder is broadly defined under New Zealand law. It is not limited to intentional killing. It also covers reckless killing when inflicting injury or committing an offence and includes death as a result of inflicting grievous bodily harm, stupefying or wilfully stopping the breath of a person all when related to particular crimes.
Manslaughter covers all other culpable killings save for infanticide. Add to this the related offence of aiding and abetting suicide and we can see the complexity building.
Still, holes exist. First, we need a mature discussion about euthanasia.
Second, we have no corporate manslaughter provision. Health and safety prosecutions, when they happen, are insufficient. There should be serious criminal sanction for work-related and public death at the hands of corporations.
(See the 2015 private prosecution of forestry companies and the dismissal of health and safety charges against Pike River Mine boss Peter Whittall on payment of $3.41 million “blood money”.)
Third, there are insufficient defences. In 2009 the partial defence of provocation was abolished in the aftermath of the conviction of Clayton Weatherston for the murder of Sophie Elliott (note, he failed to establish the defence).
The defence was replaced by a sentencing discretion that places pressure on judges to soften convictions of murder when they believe life imprisonment is not in the interests of justice, that is, when they recognise that not all murders are murders.
There is no diminished responsibility in New Zealand for those situations where, for example, intruders may be killed by a homeowner who suffers from paranoia.
We have no partial defence to murder in the case of excessive self-defence where some force is reasonable but too much is used; see many intruder cases, shopkeeper defence cases, or defence of theft of property on remote farms cases.
Further, our ability to deal with victims of domestic violence who kill is woeful both in terms of charging and the defences available, with suggested reform representing an ad hoc patch on an already bloody quilt.
Finally, so antiquated are our laws that we still retain the ridiculous requirement that victims die within one year and one day of the infliction of their injuries. If they do not there is no homicide.
And now the case of young Moko. It is important to note that with our broad definition of murder a conviction was more easy to secure here than in most other countries. However, in light of the fact plea bargaining is now part of our prosecution system, the Crown was ill served by the law as it stands.
Manslaughter is our only alternative to murder. This despite its availability to a jury in lieu of murder.
So what is needed? I suggest a system of degrees of murder could prove helpful. My colleague Dr Bill Hodge has suggested that such a system could give rise to more appeals as defendants argue the margins between degrees.
That is definitely possible.
However, I contend that the possibility of an initial influx of appeals is preferable to the current state, which more often shortchanges victims, labels the Crown as the villain and paints judges as detached from reality.