A University of Waikato academic is proposing new ‘degrees of murder’ to help make the criminal justice system fairer for both victims and offenders.

Brenda Midson, senior lecturer at Te Pringa - Faculty of Law, says the current legislation is a “blunt tool” that provides juries with few options: “The system we have now is not actually providing justice.”

Dr Midson believes that broadening the definitions of murder and manslaughter will allow courts to legitimately recognise all relevant mitigating (and aggravating) circumstances in determining guilt.

She argues that 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 can differ wildly; or outcomes may be the same for very different degrees of moral blame. Inconsistency means that a fundamental element is missing – the requirement of equality before the law.

Dr Midson says that when elements of the rule of law are not upheld, justice is not delivered.

“Ultimately the most significant problem is that the law as it currently stands is a very blunt tool for determining moral blame in culpable homicide cases. It is not fair to leave it to courts to try and apportion blame without the proper tools to do so, but most importantly it is not fair to those who are most affected by these decisions – both the defendants and victims’ families,” she writes in her thesis.

Past legislative attempts

While the New Zealand Law Society would carefully consider any proposals for legislative change that might be made, in the past it has twice opposed a Degree of Murder Bill.

In its first submission, in June 1996, the Law Society was opposed to the replacement of the definition of murder with the classification of three categories of murder largely because they could cause problems for juries in deciding which category to apply.  “This was because the core elements of the categorisation were imprecise and unworkable. The Bill (as introduced) left too much room for subjectivity to prevail.”

In its second submission on the proposed Degrees of Murder Bill in 2000, the Law Society said more work was required.

“The Society recommends that this Bill not proceed, even in its redrafted form. What is clear from the Interim Report is that more work is required if any changes to the definition of culpable homicide and sentencing are to be implemented.”

In its summary, the Law Society said:

“The present system adequately deals with murder by a single count. The parameters of sentence are left to the trial Judge after noting the minimum periods that must be applied. There may be room for some adjustment of those periods but there is no strong evidence to suggest the courts do not impose appropriate terms for the worst cases of murder, particularly in the light of recent changes to the legislation.”