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Moral sensibilities, motivating reasons, and degrees of moral blame in culpable homicide A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy in Law at The University of Waikato by BRENDA ROSALIE MIDSON 2018 Abstract Humans have a long evolutionary history of violence. The psychological mechanisms underlying aggression can be viewed as “solutions” (albeit undesirable solutions) to any one of a number of adaptive problems that exist in social life. Sometimes that aggression takes the form of the killing of one person by another – in legal parlance this is homicide. This thesis contends that these adaptive “solutions” might explain why people commit homicide in certain circumstances. In this sense, these explanations broadly align with “motives” for certain types of homicide. In some cases, such motives might constitute justifications or excuses; in others, aggravating features. The criminal justice system in New Zealand is underpinned by an assumption of rationality which is not always supported in individual cases. As a result, the legal mechanisms for apportioning blame in cases of culpable homicide are insufficient to recognise the different degrees of moral blame which can exist when one individual kills another. Therefore, the current regime for determining moral blame leads to inconsistent outcomes for factually similar cases, contrary to the rule of law which requires equality before the law. This thesis considers whether changing the definitions of murder and manslaughter will allow courts to legitimately recognise all relevant mitigating (and aggravating) circumstances in determining guilt. It will also consider whether there are other options for reform that might better deliver justice in the round. If law is to be relevant, it must reflect current knowledge about why people act in the ways that they do. If the law does not reflect science, it moves too far away from the realities of the community. Looking at homicide through a “brain sciences” lens can give us a better understanding of the psychological mechanisms involved in homicide, and allow for the formulation of an evidence-based approach which leads to a better appreciation of the degree of moral blame involved in particular killings. From this it follows that the criminal justice system will be better placed to appropriately respond to those degrees of moral blame. ii Three types of cases, in particular, illustrate that presently not all defendants charged with homicide are treated consistently: young defendants who kill; victims of violence who kill their abuser; and defendants who kill children. Defendants within these categories might demonstrate the same degree of moral blame, but the outcomes in case disposition differ wildly; or outcomes may be the same for very different degrees of moral blame. Inconsistency of outcomes means that a fundamental requirement of the rule of law is absent – the requirement of equality before the law. When elements of the rule of law are not upheld, justice is not delivered. This thesis argues that if our legal system recognises, in its application, different degrees of moral blameworthiness, then it would be as well to be upfront about them: the court’s “commiseration [should be] actually codified in the law’. 1 The thesis therefore recommends a series of statutory amendments to the law of culpable homicide, including the creation of a “degrees of culpable homicide” regime with attendant defences, as well as a range of lesser offences. 1 D Barret Broussard “Principles for passion killing: an evolutionary solution to manslaughter mitigation” (2012) 62 Emory LJ 179 at 193. iii Preface and Acknowledgements Academic research is often born out of personal experience – this thesis is an exception, fortunate as I am to not have been personally affected by homicide. But I do have an abiding interest in the motivations behind criminal behaviour and that, combined with a radar for injustice, has led me here. Sadly, far too many people’s lives have been immeasurably and irretrievably affected by homicide – families and friends of direct victims, families and friends of defendants, and defendants themselves. Sometimes victims’ families and defendants’ families are the same people, and sometimes defendants are also victims. Homicide, as with all criminal behaviour, is not a dichotomous event – there is no clear dividing line between victims and defendants. Doing justice to victims does not have to mean injustice for defendants. Justice for all parties can be better achieved, in the context of homicide, by understanding the reasons behind the killing. This is not say that “to know all is to forgive all”. Sometimes the motivating reasons behind a killing make it “unforgivable”. What I have attempted to do here is to suggest ways in which the law could change to make it easier for courts to decide just how forgivable (or unforgivable) the defendant is in the individual case. There are many people who have blessed me with their support, assistance, wisdom and guidance, many more than I am able to mention specifically here. I have been honoured to have as my supervisory panel two of New Zealand’s great legal minds – Professor Margaret Wilson and Professor Warren Brookbanks. Margaret, thank you so much for taking on the role of Chief Supervisor. I have really enjoyed and appreciated the long discussions on not only homicide but public policy and the rule of law as well. Thank you also for “getting it” and commiserating in my outrage on some of these cases, and for the gentle nudges when I fell off the PhD wagon. Warren – the criminal law oracle! Thank you for bringing your vast knowledge and expertise to this project. Your attention to detail in reading drafts has been such an asset. Thank you also for reigning me in when my voice became too doctrinaire! iv I thank Te Piringa Faculty of Law and Dean Wayne Rumbles for support in the form of leave, conference and other funding, without which this process would have been much more difficult; and for all the collegial support from fellow faculty members. Dr Keaka Hemi and Dr Rogena Sterling, in particular, have been very generous in their advice on the submission process. Former colleague, and current friend, Professor Neil Boister, has also provided great support and guidance. I am grateful to the following organisations and individuals for assistance in the form of research facilities and accommodation: Edinburgh Law School (Rose Irvine and Dr Chloë Kennedy), Strathclyde Law School (Dr Claire McDiarmid, Professor Mark Poustie and Professor Kenneth Norrie), the Max Planck Institute for Foreign and International Criminal Law (Dr Johanna Rinceanu and Nicole Rätzel) and All Souls College, Oxford (Emeritus Professor Andrew Ashworth). Over the course of this project I have been fortunate to meet a number of researchers with whom I have had the privilege of exchanging ideas and I thank them for their openness and generosity: Emeritus Professor Andrew Ashworth, Dr Andrew Cornford, Professor Sharon Cowan, Dr Sven Granath, Dr Chloë Kennedy, Dr Claire McDiarmid, Professor Elizabeth Sheehy, Professor Julie Taylor, Professor Graham Virgo and Professor Sandra Walklate. I would also like to acknowledge and thank Fairfax Media, and in particular Katie Kenny, for some fruitful discussions during the course of the “Faces of Innocents” project, and for giving me access to their database which was invaluable during the drafting of the child homicide chapter. To my friends: Jacquelin Mackinnon, Ken Mackinnon and Jamie Mackinnon – my Fife family – who have so generously provided me with a beautiful home away from home on numerous occasions; Lynn Walker for all of the respite weekends – walking, music, wine, strident conversations and challenging questions. Thank you all for great and memorable times. Finally, to Quin and Tabitha – just for being here, and being just the best. v Table of Contents Moral sensibilities, motivating reasons, and degrees of moral blame in culpable homicide ______________________________________________________________ i Abstract ______________________________________________________________ ii Preface and Acknowledgements __________________________________________ iv Table of Contents ______________________________________________________ vi Table of Figures _______________________________________________________ xi Chapter 1: Introduction __________________________________________________ 1 Overview _________________________________________________________________ 1 Setting the Scene ___________________________________________________________ 1 A Note of Caution ___________________________________________________________ 7 The Legal and Contextual Landscape ____________________________________________