lc290 Partial Defences to Murder report - Law Commission

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Mr Justice Baragwanath 9 and Professor Marcia Neave 10 for their assistance in connection with this part of the exercise. 1.11 Commissioners provisionally agreed their policy and on 30 th April 2004 we circulated, and placed on our website, a short statement setting it out together with our supporting reasoning. 11 That document focussed on the principles which a reformed law of provocation would reflect. We invited any further comment which consultees and other interested parties might wish to make. We received 30 responses and have taken these further comments into account in finalising our recommendations. A SUMMARY OF OUR RECOMMENDATIONS Recommendation for further work by the Law Commission 1.12 For the reasons which we set out in Part 2, our first recommendation is that the Law Commission be asked to conduct a review of the law of murder with a view to: (1) considering the definition of the offence, together with any specific complete or partial defences which may seem appropriate; (2) considering whether the offence of murder should be further categorised on grounds of aggravation and/or mitigation and if so what those categories should comprise; (3) in the light of (1) and (2), considering the application of a mandatory life sentence to the offence of murder or to any specific categories of murder; (4) examining how each of (1), (2) and (3) may differently be addressed where the offender is a child. In order to ensure coherence, this detailed scrutiny of murder would involve a limited review of the law of involuntary manslaughter. Provocation 1.13 For the reasons which we set out in Part 3 our recommendation on Provocation is: that the principles which should govern a reformed partial defence of provocation are: 1) unlawful homicide that would otherwise be murder should instead be manslaughter if: (a) the defendant acted in response to 9 Judge of the High Court of New Zealand and Formerly Chair of the New Zealand Law Commission. 10 Chair of the Victoria Law Reform Commission. 11 Partial Defences to Murder, Provisional Conclusions on Consultation Paper No 173. 4
i. gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or ii. fear of serious violence towards the defendant or another; or iii. a combination of (a) and (b); and (b) a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way. 2) In deciding whether a person of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account the defendant’s age and all the circumstances of the defendant other than matters whose only relevance to the defendant’s conduct is that they bear simply on his or her general capacity for self-control. 3) The partial defence should not apply where (a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or (b) the defendant acted in considered desire for revenge. 4) A person should not be treated as having acted in considered desire for revenge if he or she acted in fear of serious violence merely because he or she was also angry towards the deceased for the conduct which engendered that fear. 5) The partial defence should not apply to a defendant who kills or takes part in the killing of another person under duress of threats by a third person. 12 6) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply. 1.14 We stress that our recommendation is not put forward as a statutory formula. We have sought to identify the principles which we consider should govern any legislative reform. If this approach were accepted, the drafting of legislation would be a matter for Parliamentary Counsel. 12 Pending a wider review of the law of murder - see Part 3 paras 3.161- 3.162. 5
Page 1 and 2: 6 August 2004 Law Commission Partia
Page 3 and 4: THE LAW COMMISSION PARTIAL DEFENCES
Page 5 and 6: v Paragraph Page The substance of t
Page 7 and 8: THE LAW COMMISSION Report on a refe
Page 9: made known its intention to introdu
Page 13 and 14: (c) control himself, was substantia
Page 15 and 16: PART 2 THE SCOPE OF OUR CURRENT TER
Page 17 and 18: each of their Lordships cast doubt
Page 19 and 20: 2.16 A point emphasised by some con
Page 21 and 22: “the taunted husband” respectiv
Page 23 and 24: Can we discern anything about the p
Page 25 and 26: the law of homicide is permeated by
Page 27 and 28: grievous bodily harm when it is his
Page 29 and 30: In Canada a person commits murder i
Page 31 and 32: premeditation, (5) by aggravated br
Page 33 and 34: that it is safe to release him agai
Page 35 and 36: professions: Professor Susan Bailey
Page 37 and 38: 3.9 In para 3.163 we refer to the q
Page 39 and 40: cannot be satisfactorily tackled in
Page 41 and 42: The provoking conduct 3.25 In Consu
Page 43 and 44: had any alternative suggestion. Vie
Page 45 and 46: there is a distinction in moral bla
Page 47 and 48: EXTREME MENTAL OR EMOTIONAL DISTURB
Page 49 and 50: psychologists, by rhetoricians and
Page 51 and 52: OUR APPROACH TO REFORM OF PROVOCATI
Page 53 and 54: provocation, and that to be gross p
Page 55 and 56: of domestic violence based on the d
Page 57 and 58: (Morgan) 55 suggested that provocat
Page 59 and 60: than merely react to the external s
Page 61 and 62:
3.108 HHJ Stewart QC has commented
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practice. Some have said that jurie
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etween mere bad temper or excitabil
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murder are, by any standards ‘unr
Page 69 and 70:
the hardship by stretching the requ
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Court upheld his decision. In Smith
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3.152 Nobody pretends that this is
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DURESS 3.161 The Law Commission has
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defendant’s age and all the circu
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matter of principle, from the way t
Page 81 and 82:
4.10 The apparent harshness of the
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is an awareness of the possibility
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need to be able to demonstrate that
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PART 5 DIMINISHED RESPONSIBILITY IN
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either Canada or New Zealand. 10 In
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diminished responsibility as a defe
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5.21 Second, if the defence is nece
Page 95 and 96:
sentence, partly because it was fel
Page 97 and 98:
was convicted of manslaughter pursu
Page 99 and 100:
victim which does not fit neatly wi
Page 101 and 102:
circumstance which ought to reduce
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5.55 Conversely, others objected to
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A person who would otherwise be con
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the Mental Health Act 1983 (and wou
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5.79 The Commission also recommende
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Our recommendation 5.86 Our view is
Page 113 and 114:
that it need not be the sole cause
Page 115:
and young people. This could form a
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lc290 Partial Defences to Murder report - Law Commission

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