BACKGROUND TO THE REFERENCE

1.1 Over the years there have been numerous criticisms of the so-called “partial defences” by judges, academics, practitioners and law reformers. In the recent case of R v Chayna,¹ his Honour Justice Murray Gleeson, the Chief Justice of New South Wales, called for reform of the defence of diminished responsibility. In that case the differing expert opinions of seven psychiatrists highlighted the difficulties for the jury in the application of the defence. Accordingly, the Attorney General, on 17 March 1993, referred the matter to the Commission along with terms of reference covering the other partial defences for which statutory provision is made in the Crimes Act 1900 (NSW).²

WHAT ARE THE PARTIAL DEFENCES?

1.2 The existing partial defences - infanticide, provocation and diminished responsibility - operate to reduce a person’s liability for an unlawful homicide from murder to manslaughter. The defences are “partial” in the sense that they do not operate to deliver an outright acquittal (that is, to exculpate fully), as is the case with the other “complete” defences, such as duress and self-defence. In addition to operating as a partial defence, infanticide also constitutes a substantive offence that may be charged from the outset.

1.3 It is critical to be aware of the historical context in which the partial defences emerged. When these defences were judicially developed (provocation) or were enacted (diminished responsibility and infanticide) the penalty for murder was either death or a mandatory life sentence. The partial defences operated to reduce the charge from murder to manslaughter, thus offering the sentencing judge some flexibility to fashion an appropriate punishment based on the circumstances of the particular case. This situation no longer pertains in New South Wales. The death penalty was abolished in this State in 1955³ and the mandatory life sentence for murder in 1982.⁴ Since 1989 there is no longer even a presumption that a life sentence will be imposed for murder.⁵ It is important to consider the partial defences in this context because it may be that, with their original rationale gone, they are no longer necessary.

THE PARTIAL DEFENCES AND THE SOCIAL REALITY OF HOMICIDE

1.4 Chapters 3, 4 and 5 present the “black letter law” view of the partial defences. This is, however, only a small part of the overall picture. Recent investigations into the law of homicide have stressed the necessity of viewing that crime in a contextual way. Thus:

the social reality of homicide encompasses an analysis of four essential elements: the perpetrator, the victim, the act of violence itself, and the social context in which it occurs.⁶

It is beyond the scope of this Paper to conduct a detailed empirical investigation into the nature, incidence and classification of homicide. That task has been undertaken by others.⁷ Because they are the most recent, it may be worth noting a few of the Victorian findings in order to provide a context for consideration of the partial defences. Note, however, that the defence of diminished responsibility is not available in Victoria and that the mandatory life sentence for murder was only abolished in that State in 1986. The study found that:⁸

• 27.9% of victims were related to the killer and 33.9% were in “special relationships” (which include family, sexual intimates and so on);
• 31.3% of all homicides occurred in a “domestic context” (probably understated because the study does not include murder-suicides) and 30.7% occur in an “argument context”;
• 70% of female offenders killed in a “domestic context” compared with 24.6% of men;
• 65% of female victims were killed in a “domestic context” compared with 17.5% of male victims;
• in 55% of “domestic context” killings there was a background of domestic violence (this figure is also probably understated);
• women homicide offenders killed a member of their family in 68% of cases and male offenders in 21% of cases;
• in 86% of cases the offender was male: 72.3% of their victims were men, 27.7% were women;
• women killed far less frequently than men and 72.3% of their victims were men;
• 12.3% of offenders were found to have some mental disorder but this probably understates the incidence of such disorders;
• 75% of homicide offenders were charged with and committed for murder but only 65% were presented for murder; a presentment for murder was less likely in the “domestic context” cases;
• only 27.7% of homicide offenders were convicted of murder; 67.4% were convicted of manslaughter and 17.2% of all presented cases resulted in acquittals; and
• all those convicted of murder in the “domestic context” cases were men.⁹

1.5 In a study of homicide between adult sexual intimates in Victoria and New South Wales, Easteal discovered the following facts about verdicts and sentences:¹⁰

• In NSW, 57% of cases were dealt with by way of a plea of guilty to manslaughter (compared with only 16.7% in Victoria); 30% of guilty verdicts were for murder in NSW (compared with 63% in Victoria).
• In both jurisdictions, 41% of males were convicted of murder, compared with 5% of women. By contrast 65% of women were convicted of manslaughter compared with 43% of men.
• Sentences for both murder and manslaughter were generally low. Thus 50% of offenders received a minimum sentence of less then ten years. Female offenders generally received lighter sentences, probably because they are rarely convicted of murder. For example, over 50% of women received a sentence of 0-5 years compared with 20% of men. Aboriginal offenders also received lighter sentences, again because they are rarely convicted of murder and because of the preponderance of women in the sample (which was very small).
• Case studies detailing the events, the charges, the verdicts and the sentences reveal no particular pattern. That is, instead of there being a constant set of factors informing the exercise of the prosecutorial and sentencing discretions, Easteal found a “rather random and highly discretionary series of choices by the Crown, the juries and judges”.¹¹ For example, there appears to be no essential difference between cases in which pleas to manslaughter were accepted and cases in which a murder trial was held. However, it did emerge that plea bargaining did not affect the sentence, that the length of sentence was similar whether the defendant pleaded guilty to manslaughter or was convicted by the jury and, of course, that murder verdicts resulted in higher sentences then manslaughter verdicts. Both gender and Aboriginality influenced the charge and sentence. Apparently this was because these killings tended more often to be unpremeditated and involved a degree of victim precipitation.
• Finally, it was found that “the most recurrent theme in the killings by both men and women was the antecedents of physical and emotional violence towards the woman”.¹²

1.6 These studies raise some very interesting issues and provide something of a demographic portrait of the nature of homicide and its treatment by the criminal process.¹³ Unfortunately, the collected data cannot really capture the concrete human stories on which they are based. These are stories which a legal investigation finds difficult to tell. But in considering the moral dilemmas, the policy questions and the often tragic human situations involved where issues of provocation, diminished responsibility and infanticide are raised, some understanding of the type of cases involved is necessary. To provide this context consider the following stories. They are drawn in the most part from the facts of decided cases, both here and in other jurisdictions, but some are an amalgam of a number of cases. They are, of course, only partial - much has been omitted and the specificity of every case cannot be reduced to a set of common indicia. Nevertheless they do convey something that will fill out the legal picture in the following chapters and we hope that the reader will bear them in mind as he or she reads the rest of this Paper.

Story 1

Adam and June had been married for 27 years. During these years Adam had brutalised both June and their three children. He had long subjected his daughters to incest and had made death threats to them to prevent them from leaving home. Sometimes he raped his daughters at knife point and sometimes he inflicted injuries on them with a knife. June was scared of her husband and her daily life was permeated by this fear. She never knew when she might next be beaten. She also did not know that Adam had been raping the children. One day her daughter told her of what had happened. June’s fear and desperation at her and her daughters’ situation grew. The next day, as they went to bed, Adam hugged June and told her how much he loved her. He said that their daughters would not be leaving home as they had threatened but that they could live together as one big happy family forever. Shortly after, while he slept, June killed her husband with a kitchen knife. At her murder trial, June raised the defence of provocation.

Story 2

Jeremy had bashed his de-facto wife Sari for many years. He didn’t do it regularly but when he was drunk it was particularly bad although he said he was contrite afterwards. Once Jeremy beat Sari so badly that she had to be hospitalised and Jeremy was arrested and charged by the police, convicted and put on probation. After this, Sari took their daughter Em and left. Although Jeremy begged, Sari refused to return to him. Finally when he had come round to her new home in breach of a court order, she told him that she hated him, that she wasn’t scared of him any more, that she had a new lover and that Em was not his child. On hearing this, Jeremy shot his wife with a gun he had brought to the house with him. On trial for murder, Jeremy argued that he had been provoked to kill Sari.

Story 3

Abel’s daughter had left home in circumstances which were profoundly at odds with the cultural and religious practices of her parents. She had been involved sexually with a man of a different ethnic background and they were not married. This caused both Abel and his wife a great deal of grief. They felt that they had lost their daughter and that she had lost her heritage and religion. One day Abel visited his daughter at her new home hoping to convince her to come back home with him. To his horror, he found her in bed with her boyfriend. He grabbed a heavy statue from the mantelpiece and hit his daughter on the head. She died from the blow and at his trial on the charge of murder Abel raised the defence of provocation.

Story 4

David had always had behavioural problems, when he was a child he was violent and unruly and his adoptive family found him very difficult to deal with. He had a number of convictions for unprovoked violence. He had spent a much of his life after the age of 12 in mental institutions, juvenile correction institutions and prisons. On trial for the murder of a sexual partner, it was found that he suffered from brain damage causing him to act in an uncontrolled or aggressive way if provoked or if he had been drinking. He pleaded not guilty to murder on the basis of diminished responsibility.

Story 5

Hilda had lived in an abusive relationship for over twenty years. Her husband was physically abusive and tormented her with tales of his extra-marital sexual exploits. Hilda felt she had nowhere to go, she felt trapped, scared and unable to control the situation. She had, over the years, sought treatment for stress, anxiety and depression and was sometimes on medication. At the trial for the murder of her husband, Hilda raised the defence of diminished responsibility.

Story 6

Ronald has a mild intellectual disability. He lacks the social skills to live independently and is anxious, paranoid and impulsive. He also has an antisocial personality disorder. When he and some friends killed a homeless man in a public park he pleaded guilty to manslaughter on the grounds of diminished responsibility.

Story 7

Rachel lived in a very conservative family. Sex was never spoken about, especially not to Rachel who was only sixteen. When she knew she was pregnant it was impossible for her to tell her family. It was also impossible to tell anyone else. So for the next months, Rachel pretended that she wasn’t pregnant at all. She even began to believe it herself. She found that by wearing loose clothes people seemed not to notice and in any case she didn’t get very big. And one day, months later, Rachel gave birth to a child, in an outside toilet at home, entirely on her own. When she picked up the baby from where it had fallen onto the floor, she wrapped it up in her jumper and put it in the wardrobe. She then had dinner with the rest of the family. The child died and Rachel pleaded guilty to a charge of infanticide.

Story 8

Andrea gave birth to Pip who was her first child and immediately felt depressed, unhappy and completely unable to cope. Money was difficult, her partner wasn’t working and was away from home most of the time. Andrea began to feel more and more distressed and trapped by the situation. She went to her local doctor and told her that she thought she might be having a nervous breakdown. She was hospitalised for a short period and was put on medication. When she came out for a home visit and spent some time with Pip she smothered him with a pillow and the child died. Andrea pleaded guilty to infanticide.

OUTLINE OF THIS DISCUSSION PAPER

1.7 This Paper provides an overview of the partial defences falling within the terms of reference. In Chapters 3, 4 and 5 of this Discussion Paper, the Commission sets out the law of the partial defences and discusses the various problems with each defence. Options for reform are proposed and discussed. In essence these options are proposed from within the context of the prevailing law of homicide in New South Wales. This means that they take for granted the murder/manslaughter distinction and the discretionary sentence for murder. This is not a reference to review the law of homicide, but it would be simplistic, unrealistic and wrong to take the partial defences out of context. Thus any proposals for reform must also include the option of reviewing the law of homicide in this State. In particular, the traditional murder/manslaughter distinction may require reconsideration. Because of this, Chapter 2 provides an overview of the law of homicide in New South Wales and raises the question of whether the current distinction between murder and manslaughter should simply be abolished and replaced with a single category of unlawful homicide.

1.8 Chapter 3 deals with the defence of provocation, Chapter 4 with diminished responsibility and Chapter 5 with infanticide. The format of Chapters 3, 4 and 5 is the same. First, the origins of the defence are outlined as a means of putting the current law in its historical perspective. Then an analysis of the current elements of the defence in New South Wales is set out, highlighting problematic areas. For a comparative perspective the law in other jurisdictions is examined. Finally, some suggestions for reform are listed along with arguments for each option. These suggestions are highly tentative and not exhaustive. The Commission welcomes comments both on the suggestions presented as well as on any alternative proposals.

PURPOSE OF THIS DISCUSSION PAPER

1.9 The purpose of this Discussion Paper is to promote debate, provide a framework for community consultation and present a number of preliminary suggestions for reform. It does not seek to present the views of the Commission, nor does it make any final recommendations. In preparing this Paper, the Commission has held some preliminary consultations with interested individuals and organisations and it is hoped that this Discussion Paper and the reform suggestions presented in it will encourage further comments, submissions and suggestions from interested groups and persons. Such submissions will greatly assist the Commission in formulating its final recommendations to the Attorney General.

SUMMARY OF OPTIONS FOR REFORM

In summary, the Commission proposes the following options for reform:


Threshold Option: Abolish the murder/manslaughter distinction along with the partial defences.



If the Threshold Option is not favoured the following options are proposed with respect to each partial defence:


Option One: Retention of the defence.

Option Two: Abolition of the defence within the present law of homicide.

Option Three: Reformulation of the defence in accordance with the suggestions presented.


If the Threshold Option is not favoured it will also be necessary to consider the relationship between the defences. They can each be seen separately or the fate of one can be linked to the fate of the others. For example, it might be thought that with a discretionary sentence for murder there is no justification for any of the partial defences. On the other hand it might be thought that while diminished responsibility is complex and problematic and should be abolished, provocation functions well in practice and should be retained. The relationship between diminished responsibility and infanticide also requires consideration.

1. (Unreported) Supreme Court, NSW, Court of Criminal Appeal, 15 February 1993.

2. Consideration of the common law partial defence of excessive self defence, abolished by the High Court in Zecevic v DPP (1987) 162 CLR 645, is not within these terms of reference.

3. Crimes (Amendment) Act 1955 (NSW).

4. Crimes (Homicide) Amendment Act 1982 (NSW).

5. Crimes (Life Sentences) Amendment Act 1989 (NSW). See Chapter 2 at paras 2.12 - 2.16.

6. A Wallace Homicide: The Social Reality (NSW Bureau of Crime Statistics and Research, 1986) at 4.

7. A recent study has been conducted by the Victorian Law Reform Commission Homicide Prosecutions Study (Report 40, Appendix 6, 1991) which covered the years 1981-1987 and involved 302 defendants and 259 victims. See also Wallace as updated by R Bonney Homicide II (NSW Bureau of Crime Statistics and Research, 1987) and M Huong and P Salmelainen Family, Acquaintance and Stranger Homicide in New South Wales (NSW Bureau of Crime Statistics and Research, 1992).

8. Specific findings on provocation and infanticide are discussed in the relevant chapters.

9. There have been some well-known cases involving women convicted of murder in the domestic context, but these cases are far less prevalent than those involving men and apparently were not caught by this sample.

10. This is a small part of this recent study of all aspects of domestic homicide, P Easteal Killing the Beloved: Homicide Between Adult Sexual Intimates (Australian Institute of Criminology, 1993).

11. Easteal at 173.

12. Easteal at 179.

13. The Commission would like to thank the Judicial Commission of New South Wales for allowing access to their Sentencing Information System which has provided further information.