Moko’s killers should be murderers

Tania Shailer and David Haerewa

Tania Shailer and David Haerewa

Professor Chris Gallavin writes

In recent days both those convicted of the manslaughter of baby Moko have filed appeals against their sentence of 17 years.

The grounds for these appeals are fascinating, leading me to the conclusion that the Court of Appeal ought to take the unprecedented move of quashing the convictions, and substituting them with murder.

If unwilling to take such a move the justice of the case ought to be addressed by a substantial increase in the penalty.

Let’s face facts – the Court of Appeal is not going to do this – but the fact remains that they should. Here is my reasoning.

There are two particular defences to murder that New Zealand does not have; diminished responsibility and provocation. Never have we had diminished responsibility and provocation was repealed in the aftermath of the Weatherston case upon his conviction for the murder of Sophie Elliott in 2009.

Both of these defences are ‘partial defences’. That means that in the context of murder they reduce the level of culpability from murder to manslaughter.

Diminished responsibility appropriately deals with those people who suffer from a mental impediment short of insanity that has affected their ability to appreciate the wrongfulness of their actions or their ability to assess the situation they are in at the time of the crime.

Provocation likewise acted as a partial defence and most often covered so-called ‘crimes of passion’ in that sometimes people lose self-control and kill in circumstances we all regard as wrong but do not want to label ‘murder’.

But like I say we do not have these defences on New Zealand’s books. What that means is that they are dealt with as submissions made at the time of sentence and do not go to culpability (conviction).

And hence the appeals.

From the reporting of the grounds for each appeal the arguments come perilously close to pleading diminished responsibility and provocation. They seem to be saying that these killings happened under the influence of either – or both. Well, as they are not defences to murder then the default is …… murder. Aka the Court of Appeal should quash the conviction for manslaughter under their inherent ability to oversee plea bargains and either refer it back to the court of first instance for a retrial as murder or merely substitute the conviction for manslaughter with murder.

The courts won’t react this way, but even just for “taking the mickey”, there should be a risk for those appealing that the whole thing gets reset and looked at all over again.

Following the above reasoning they have, in effect, received the concession they would normally receive had diminished responsibility and provocation been successfully plead at a trial for murder – that came to pass the moment they were convicted of manslaughter. They have banked their concession already – what they are effectively asking for now is a double concession – not once with the conviction of manslaughter but twice with a concession as to sentence.

So, in light of the fact that these categories are left for a sentencing discretion in the case of murder and not manslaughter their pleading of them on appeal is tantamount to a confession to murder. If not seen so clearly (remembering I have only seen the media reports of the grounds of appeal) then they come sufficiently close to one that the Court of Appeal ought to feel incredibly uneasy about the conviction for manslaughter.

We can but hope the Courts both have the means and the spirit to address this situation where the only people that have got a bargain out of this whole travesty get the justice they have earned and the public so badly wants to see.


– Professor Chris Gallavin, NZ Herald

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