Murder prompts lecturer to push for law change
Few crimes light the fuse of community moral outrage like murder, particularly the murder of little children. The furious defensive instincts of parents in particular all too often leads to demands for life without parole and even the return of capital punishment.
Emotive anger and an understandable urge for pure revenge are however probably not the best frame of mind to make such decisions in. There have been enough innocent people sent to jail for murders they did not commit, and not a few who escaped convictions for murder but were convicted of the lesser charge of manslaughter on the technicalities of law, to justify a thorough review of the law.
That is exactly what Waikato senior law lecturer Dr Brenda Midson is proposing along with a suggested introduction of degrees of murder.
Her suggestion should not be lightly dismissed with the response that the varying circumstances of each case are already taken into account at sentencing. While that is how our courts currently operate, as was explained by the judge in a recent case of careless driving causing death when he said that some cases of manslaughter were close to accidents and others were “a whisker away from murder”.
There are also avenues for appeal to higher courts, which can take many years and cost more money than most people can afford or even borrow. In spite of these checks, balances and safeguards we still get it wrong too often. Dr Midson has suggested a ranking system, similar to that of the United Sates in which first-degree murder would include killings which happen during another serious crime such as a robbery, as well as hate crimes and killings for revenge against a third party. Second-degree murder would cover most other cases, including some which currently tend to fall under manslaughter, such as children who die after a period of abuse, and one-punch killings.
She has also proposed more legal defences, including developmental immaturity for young offenders and provisions for people in coercive and controlling relationships. Her proposals are in a PhD thesis submitted in August 2018, which has been sent to the Law Commission for consideration.
Her thesis focuses on three types of killings, which she claims show the limits of the current laws. They are: young people who kill, people who kill children, and victims of violence who kill their abuser.
The idea has not been well received by many of those who work in the justice sector, including Justice and Courts Minister Andrew Little, who said the sentencing process already deals with the issues and degrees of murder would simply complicate the system but is that good reason to not undertake a review?
The system is already very complicated as well as significantly costly and, most importantly, unjust for enough people for a more considered response to Dr Midson’s proposal than a simple rejection.
The number of times the Government has had to pay huge sums to wrongly convicted and imprisoned people alone suggests a review is overdue.
Another issue which may not have been considered is the role of juries in murder trials.
While the law allows defendants to choose trial by judge alone or by jury for some charges, that option is not available for charges of murder. As Dr Midson has pointed out the circumstances of each murder are usually far more complicated than most people realise and the law covering killings is equally very complicated, particularly for untrained lay people.
I sat on the press bench of criminal courts for many years and often saw jurors become confused and overwhelmed by the competing arguments of eloquent and highly trained lawyers. There seemed to be an unwritten rule, at least for some defence lawyers, which suggested that if they could not convince a jury they could get an acquittal by confusing them.
There is nothing particularly wrong with that approach as juries are required to decide guilt beyond a reasonable doubt. Creating that doubt is therefore a legitimate technique but is justice properly served by it? That juries got it right as often as they did is due in no small measure to the equal eloquence and wisdom of the presiding judge who must sum up the evidence before the jury retires to make that all-important decision.
Perhaps the proposed review should also consider the possibility of allowing murder trials to be heard by a judge alone or a bench of specialist judges who are thoroughly familiar with the law and not easily persuaded, much less confused, by competing prosecution and defence counsel.
The inconvenience and cost of the proposed review is not as important as ensuring we dispense justice in a more accurate, humane and empathetic manner than we sometimes do at present.
Emotive anger and an understandable urge for pure revenge are however probably not the best frame of mind to make such decisions in.