When the ‘corpus juris’ meets a corpus delicti: The appearance

Criminal Law Desiderata
New Zealand's criminal law is totally reliant on codification (all offences being

statutory in this jurisdiction), a process which started with the Criminal Code Act

1893, which transmogrified into two successor statutes: the Crimes Act 1908 and the

revisory Crimes Act 1961. Consequently no convictions are permissible for old

common- law offences, although some common-law defences survive, such as that for

insanity (per M’Naghten's Case [1843] 10 Cl. & Fin. 200). The Criminal Code Act

1893 abolished the common-law distinction between felonies and misdemeanours in New Zealand.
The doctrine of clear homicidal intention is founded in the leading English case of

Woolmington v DPP [1935] AC 462 (All ER Rep 1 [HL]), which firmly established the presumption of defendants’ innocence in criminal trials and inscribed it into English common law. The three requisite elements of an indictable crime are: (1) the actus reus (=the offending/injurious physical event); (2) the mens rea (the mental element of guilt resident in the psyche of the accused at the time of the commission of crime(s) ); and (3) the absence of any relevant defence (e.g. infancy, self-defence, provocation, insanity or compulsion) which would demonstrate the absence of a blameworthy, evil mind and, therefore, negative any notions of criminal liability.
Quite obviously the principle of concurrence (the scintilla temporis) between the actus reus and mens rea applied, prima facie, to the legal minors Juliet Marion Hulme and Pauline Yvonne Parker when they mortally wounded Honora Parker on 22 June 1954, but their liability was far from absolute. Indeed, it was problematic inasmuch as the insanity

defence was arguably applicable to them and, additionally, the requisite psychic

criminous intention or 'knowledge' (viz., the mens rea) only seems to have

been consciously present after they jointly performed the gruesome (and inarguably

criminal) actus reus against Mrs Parker/Rieper. This is vitally important given that ,

at law, the accused may even act with an apparent mens rea and yet have felt no moral

guilt in the lead-up to - and in the execution of -- ,say, homicide. I would suggest

that neither Hulme nor Parker had an inferable 'guilty' state of mind, even though

there was demonstrable evidence both of intent and 'foreseeability' in Pauline

Parker's pre-event diary entries. The legal fault principle operative in the New Zealand jurisdiction is that mens rea "is a concept independent of knowledge of illegality or immorality of motive" but that there is "no criminal liability if a 'guilty mind' exists only after the actus reus."[4] For mens rea to be established at law the key requisites are intent, knowledge, or recklessness of the physical ingredients of the actus reus, including wilful blindness or indifference. The core issue in the Hulme-Parker case was the degree of applicability of Havelock Ellis' definition of the insane criminal as a person who, "being already in a condition of recognizable mental alienation, performs some flagrantly anti-social act."[5] The reason why this is so is connected with the fact that New Zealand has no equivalent of s2 of the Homicide Act 1957 (U.K.) with its statutory doctrine of legally

'diminished responsibility' which has reduced the importance of the insanity defence

in the United Kingdom. While, ordinarily, Hulme and Parker would have known that

murder is an intentional act of law-breaking, there was strongly suggestive – if not

exactly probative—evidence at their trial that both young women were so mutually

enwrapped in a complex matrix /compound of fervid reality-denying fantasy and

psychic stress that Elllis' concept of mental alienation would have done better justice

to their conjoint frame of mind. This signals the end of a régime which arraigned defendants and deemed them culpable on the strict grounds of causation with no element of intent being factored into the judgement. Sir Edward Coke distinguished between unlawful forms of killing via the concept of the unclergyable felony of culpable homicide involving "malice forethought [premeditated killing] , either expressed by the party or implied by law"(The Third Part of the Institutes, supra., 47), a concept based on a series of decrees and statutes of 1389, 1496, 1512, 1531 and 1547 which gradually developed the formula of "wilful Murder of malice prepensed."[6] Thus an historic distinction existed between the felony of deliberate killing without justification and killing which has occurred without the sine qua non of culpability, par malice prepense (premeditation). The "most serious form of homicide known" to 12th century jurists such as Ranulph de Glanvill was called the murdrum, a voluntary and secretive act of prepensed murder.[7] Clearly the awful crime against Honora Parker seems to dovetail well with this historic definition both as to the secluded location (a shrouded path in Victoria Park) and to the willed and pre-planned nature of the girls' collective attack upon the hapless parent, but the unresolved problem with this crime lies—even with due deference to the doctrine of res judicata—

in determining whether their conjoint actus reus conformed to the dicta of express malice (here, a killing in the absence of provocation) or to the norms of subjective recklessness (as the conscious taking of an unreasonable risk when "the accused had a conscious appreciation of the relevant risk"[8]) or to shared insanity (folie à deux). Recklessness seems applicable but in a limited context: clearly not in terms of an intention to cause general bodily injury with a careless attitude about whether death might ensue but in the sense of confused adolescent foresight, in which the emotionally immature defendants inflicted serious bodily injury which they knew was likely to cause death.[9] I find the general (=non-legal) connotations of the concept at least suggestive given their symptomatology, sharing a clearly fantastic state of mind and location within an aggressively hetero-normative culture (both of which would generate counter-therapeutic sequelae). The defence psychiatrist, Dr R.W. Medlicott, asserted that Hulme and Parker “showed gross exaltation” which continued after the murder and during the trial, adding that “In spite of their intelligence and lack of scruples the girls’ murder was particularly stupidly planned.” [10]

Francis B. Sayre reminds us, critically, that malice aforethought "is not, strictly speaking, mens rea in the sense of the underlying mental element upon which criminality in general is based" but that "if by mens rea we mean whatever mental requisite is necessary for any particular crime, malice aforethought may constitute one form of mens rea", as one way of determining "a precise intent at a given time."[11] Before discussing the thorny parameters of the 'precise intent' of Hulme and Parker, it may be worth citing Professor Kenny who attempted, famously and unsuccessfully, to proffer a nuanced reading of degrees of mens rea, in terms of 'more guilty' and 'less guilty' states of mind.[12] Sayre's response to this was to acknowledge that there are different kinds of requisite states of guilty-mindedness affixing to particular crimes, arguing that mens rea covers "whatever mental element is necessary to convict for any particular crime" and ,therefore, that "there is no single precise requisite state of mind common to all crime."[13] Sayre concluded that there was a pressing need to replace the old canon law/ius commune (common-law) notion of mens rea with this "new conception of mentes reae." [14] Andrew Simester and Warren Brookbanks point out that mens rea "is not normally concerned with the attitudes of defendants; it is concerned with what they intended, knew, and did not know", which is why neither worthy attitudes nor good motives provide defences under the criminal law.[15] They add that Woolmington's Case established that the prosecution/Crown "has the burden to bring evidence which prima facie proves all actus reus and mens rea elements of the offence beyond reasonable doubt “, while the defendant “has an evidentiary burden to raise any evidence which suggests the possible availability of a defence..."[16]
The Hulme-Parker case proceeded on the statutory presumption of sanity (s23 Criminal Code Act 1893 and s43 Crimes Act 1908) and upon the settled law that foresight of wrong-doing involves greater culpability than negligence or recklessness. Glanville Williams has expressed the legal penumbra surrounding the doctrine of culpable intervention: that if the defendant is an adult and is "of sound mind and is not acting under mistake, intimidation or similar pressure" the intervention/involvement is his/her own responsibility and "is not regarded as having been caused by other people."[17] The status of Pauline Parker and Juliet Hulme as marginal young adults and the evidence suggesting that their mental state on and immediately before 22 June 1954 was hardly ‘sound’ problematizes the trial’s outcome and brings to mind Leslie Moran’s allusions to Foucault on law’s intimate relationship to “a bio-politics of social control” -- a schema in which ‘biopower’ regulates and controls human subjects for state-centric goals. [18] Moran explores how law enacts its own peculiar and licit violence and can operate as “an arbitrary practice of domination rather than a practice controlled by language, rule and reason”, especially in cases involving the conjunction of sexuality and inter-personal violences.[19] Citing Deleuze and Derrida, Moran unpacks the logic of a ‘Gothic’ legal praxis which “has come to resemble a practice of unruly violence”, both conceptually, as a dominant social discourse (imposing “an idiosyncratic view of the world and its enforcement by way of arbitrary decisions”) and through the “more familiar violence that is punishment.”[20] Moran has written of legalized violence “as physical and conceptual domination and a practice of pain through punishment” imaged as a régime of ‘good’, legitimate and curative violence and as public vengeance [21] , adding that the judicial “Production of the guilty as victims draws attention to the importance of public vengeance and recognizes the practice of law as a sacrificial practice” [22] and, in this case, anything but a therapeutic jurisprudence.