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 Never have we had diminished responsibility and provocation was repealed in the aftermath of the Weatherston case upon his conviction for the murder of Sophie Elliott in 2009.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).

So where am I going with this? 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.

Alternatively my argument is that there should be a substantial increase in the penalty. Why?

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. If happy to leave the conviction to stand - then increase the sentence knowing for well that the conviction was based upon an admission of conduct (the actions that killed baby Moko) that would likely met murder save for the grounds they have pled that are not defences in this country.

The remaining alternative for the Court is to quash the conviction for manslaughter based upon the plea bargain and leave it then for the Crown to come back with charging them with something else - i.e. murder. It is, after all, not for the Court to tell or order the Crown to bring a prosecution but it is right for the Court to ensure the integrity of the system by ensuring convictions have a sound foundation. If evidence comes to light within an appeal that suggests the conviction is not sound then that should be set aside.

"...... and so ends the submission for the Crown, your Honours of the Court of Appeal."

• Professor Chris Gallavin is Deputy Pro Vice-Chancellor, College of Humanities and Social Sciences, at Massey University