Crimes (Provocation Repeal) Amendment Bill

Hon SIMON POWER (Minister of Justice) Link to this

I move, That the Crimes (Provocation Repeal) Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, that the committee report finally to the House on or before 19 October 2009, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).

This bill proposes that the partial defence of provocation, which is provided in section 169 of the Crimes Act 1961, be abolished. Section 169 of the Crimes Act provides that culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused death did so under provocation. The origins of the partial defence of provocation date back to the 16th century. The historical rationale for the partial defence was to avoid the mandatory murder penalty, which, at the time, was the death penalty. Subsequently, the punishment for murder was mandatory life imprisonment, which was abolished by section 102 of the Sentencing Act 2002. The introduction of a discretionary sentence for murder with a presumption of life imprisonment has removed the historical rationale for provocation.

The Law Commission’s 2007 report The Partial Defence of Provocation reviewed Auckland and Wellington prosecution murder files over a 5-year period and found that provocation was raised in 15 of the 81 murder cases, but was successful in only four of those cases. Two of the successful cases were so-called homosexual advance or homosexual panic cases. The Law Commission recommended abolition of the partial defence, echoing the view of various law reform bodies in this country for over three decades.

There has been considerable dissatisfaction with the operation of section 169. The courts have encountered difficulties with the requirement that the unique characteristics of the accused may be taken into account, but, oddly, he or she is to be regarded as having the power of self-control of an ordinary person. This has been given various interpretations by the courts over time. The current approach, as laid down by the Court of Appeal, allows the characteristics of the accused to be taken into account in determining how that person perceived the gravity of the provocation. However, the jury is required to determine how the ordinary person would have acted when confronted with provocation at that level of perceived gravity. As one judge stated, “Most have seen the glazed look in the jurors’ eyes.” following instructions from the bench in this regard. More fundamentally, the defence assumes that ordinary reasonable people, when confronted with severe provocation, will react with a homicidal loss of self-control, when, in fact, ordinary people do not.

This Government considers that the partial defence of provocation is fundamentally flawed, and I note that my colleagues across the House share the same view. It effectively provides a defence for lashing out in anger, not just any anger but violent homicidal rage. It rewards a lack of self-control by enabling an intentional killing to be categorised as something other than murder. When the Government is attempting to send the strong message that people must find ways other than violence to manage their anger, it is inappropriate and undesirable that anger be singled out as an overriding mitigating factor that could be seen to justify conviction for manslaughter rather than murder.

Importantly, the repeal of provocation will not preclude self-defence from being raised in appropriate cases. If a person or someone else is under attack, he or she will be able to use reasonable force to repel that threat.

I am aware of the issues raised in support of retention of the partial defence. Without outlining all the arguments for and against provocation, I want to note the advice I have received to this effect: this defence is rarely relied upon by battered victims, and is more likely to be used by perpetrators of domestic violence. It is, therefore—I am advised—more likely to work against the interests of, in particular, battered women, than in their favour. To address another objection, the mentally impaired are generally precluded from relying on provocation as it requires the accused to have the power of self-control of the ordinary person.

I am also aware that not all who submitted to the Law Commission on its report supported abolition of the partial defence. Some submitters, mainly from the defence Bar, considered that it serves a useful and necessary function, and that reform of section 169 would be preferable to repeal. Although the Government does not support that view, I encourage anyone who considers that there are good reasons for retaining the partial defence to make a submission to the Justice and Electoral Committee.

This bill does not propose that provocation is considered as an express mitigating factor at sentencing; rather, the sentencing judge will be able to use his or her discretion under section 102 of the Sentencing Act 2002 to consider whether life imprisonment would be manifestly unjust given the particular circumstances of the case. Even if the court in a particular case determines that a life sentence is justified, it will still need to take into account the existence and degree of provocation, together with all other relevant aggravating and mitigating factors in fixing the length of the minimum non-parole period to be imposed. Although it is not apparent that the Sentencing Act will require amendment as a result of the abolition of provocation, the Government welcomes any submissions to the Justice and Electoral Committee on this issue.

This partial defence enables the accused to besmirch the character of his or her victim. Needless to say, the victim cannot defend his or her legacy. Repeal of the partial defence would make factors such as the alleged sexual behaviour of the victim less relevant at the trial. The emphasis upon such factors in evidence creates a great deal of distress for the families and friends of the victim. This results in those close to the victim feeling as if the victim is on trial rather than the accused. Although it is true that matters related to provocation may be relevant at sentencing, the nature of that process is such that the issue will not be canvassed before a jury with intense and prolonged media scrutiny. Sentencing generally lasts only for an hour or so. Distress for family and friends will be greatly reduced.

I conclude by making this point very clear: this bill is not a knee-jerk reaction to recent cases. The issue of provocation has been extensively canvassed, at least over the life of the last two Governments, and it has been on my work programme for some time. I am pleased to say to the House tonight that Parliament is now in a position to do something about it. I commend this bill to the House.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

I begin by congratulating the Government on the speed with which it introduced the Crimes (Provocation Repeal) Amendment Bill, and on acting in good faith by debating the first reading at the earliest opportunity, despite my decision to withdraw the bill that Charles Chauvel and I had introduced by way of the member’s bill ballot. I have not received a single negative response to our decision to withdraw the bill, and that suggests a maturity in a debate such as this, which we can have—and should have—constructed on a non-partisan foundation. I call that a win-win situation.

I did not announce the withdrawal of our bill before I saw the Government bill, because I was concerned that the Government might have been tempted to consider alternative measures, such as degrees of murder being determined by the jury. I would have opposed that alternative. I have no objection to sentencing guidelines for judges, which was the path the previous Labour Government had chosen to go down. The bill that Charles Chauvel and I had developed was a straight repeal, as is the Government’s bill, and that is why we are fully supporting its introduction and, hopefully, its rapid progress through the House. I would not have supported recreating the problem by calling it another name.

Can I say to those who say that this measure is a knee-jerk response to two recent cases—and I fully back what the Minister of Justice has said—only one of which dominated the mainstream media, which is a matter I will come back to shortly, that this law change has been the subject of in-depth consideration across two Law Commission reports. The first report was in 2001 and the other report was in 2007. The first report focused on a range of criminal defences with particular reference to battered defendants, and recommended that this partial defence be repealed. It also recommended the repeal of the mandatory life sentence for murder. This is very important because, as the Minister has said, the rationale for the defence was to avoid the mandatory sentence for murder in cases with mitigating circumstances.

Most of the countries that retain the defence of provocation still have mandatory life sentences for murder. The previous Labour Government repealed the mandatory life sentence in 2002, thus the issue of the repeal of the defence of provocation came back to the Government. At that time officials raised concerns that were still prevalent in the community about battered women, and I am pleased that the Minister has focused on that. They also raised concerns about the potential impact on mentally ill or mentally impaired offenders. It was legitimate for the Government to refer the matter back to the Law Commission, given the extent of those concerns. The referral was made in 2004, and for 3 years this matter was subjected to detailed analysis, including an assessment, as the Minister has said, of murder cases over a 5-year period—2001 to 2005 inclusive. This research challenged many of the assumptions about the pleading of the defence and the circumstances in which it was actually pleaded. I found the report very informative, including, as the Minister has said, the fact that the defence had been successfully pleaded in only four out of 81 cases over those 5 years.

This report also asked an important question, which was what would replace the defence, if anything. As I indicated before, the Law Commission considered a range of alternatives and settled on the sentencing guidelines. The commission rejected the other options—in particular, the introduction of a generic partial defence. Just one sentence in that report convinced me why the jury should have no part in the decision. This is the quote from the report that I felt was compelling: “This has the potential to reduce homicide to a lottery; it is an invitation to jurors to dress up their prejudices as law,”. That is a very powerful statement, because, in many ways, that is precisely how the current law stands—a lottery.

So this bill was not a knee-jerk reaction, nor has the work on the repeal commenced as a result of the two cases I referred to before, and to which I now wish to turn. I too acknowledge the families of Sophie Elliott and Ronald Brown. Nothing will erase the impact of the slurs cast on their characters in the criminal trials that their families had to endure, but to both families I offer up the knowledge that their experience will galvanise the response of Parliament into what I hope will be a unanimous vote of support for repeal.

I have known about the defence of provocation for nearly 30 years. Dr Minnett killed his wife in 1980, while I was still a law student. I remember the feminist literature rewriting the word “manslaughter” to read “man’s laughter”. I recall not being able to believe that somebody could get away with murder by saying that his wife had driven him to it by challenging his sexual prowess. Leigh Minnett did not deserve to die, nor did Sophie Elliott, nor did Ronald Brown.

I want to mention Ronald Brown because his case will be the last case where the defence of provocation was successfully pleaded in New Zealand. His case sums up what is wrong with the defence. I would like to say that the only reason his case did not attract the media attention that Sophie Elliott’s murderer did was that the accused did not give evidence at the trial. Deep down I know that is not true. That is not the reason why it did not get the media attention of the other case. I hope the media reflect on that, and also reflect on the level of coverage they gave to an individual who was characterised as having a narcissistic personality disorder. It was not required in the public interest, it was disrespectful of the family of Sophie Elliott, and it was disrespectful of her memory.

Returning to Ronald Brown, the Law Commission identified that the defence of provocation is overwhelmingly used by men, and is often used in situations where they say that their sexuality was threatened when their partner left them for another man, or, as in Ronald Brown’s case, they say that they were propositioned by another man. My objection is that the evidence as to what allegedly incited this homicidal loss of self-control is entirely in the hands of the person who has silenced for ever the only other witness to the events. My other objection is that a jury is asked to determine whether the provocation was “sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control;”.

In one section of the report, reference is made to substantial literature that documents the way that the defence has acted as a shield for men to react with murderous violence to threats to their sexual identity. The following point is made: “an acceptance that such reactions are those of the ordinary person (as the provocation defence explicitly does when it succeeds) implies that it is natural and excusable to feel revolted and violently outraged by the gay men and the former partners who have done no more than exercise their freedom of choice and expression.” The Law Commission states that the defence puts a premium on anger, and not merely anger but homicidally violent anger.

We have a campaign in this country with the catchphrase “It’s not OK.”, and this defence of provocation is as not OK as the violence it excuses. The existence of the partial defence has been described as a blot on the criminal law, and it is time that it is removed. I commend the bill to the House.

Hon NATHAN GUY (Associate Minister of Justice) Link to this

The Crimes (Provocation Repeal) Amendment Bill is very important and is before the House tonight for its first reading. First of all, I congratulate the Minister of Justice, the Hon Simon Power, on bringing this bill into the House—indeed, very swiftly. I know that the bill was on his work programme and I know that this issue has been around for a while now. I see that the Law Commission first recommended the repeal of this law in 2001 and it was the subject of a stand-alone report in 2007. So it is great to see that this new Government and, indeed, the Minister of Justice are getting on with a very robust work programme.

The defence of provocation is included in section 169 of the Crimes Act and states that a verdict of murder may be reduced to manslaughter if the offender can show that the crime was committed under provocation. Recent examples have illustrated the significant issues raised by this defence. Extensive consideration by the Law Commission and other bodies, as I have just mentioned, has emphasised the need for the defence to be abolished.

The trial process, including sentencing, is often deeply traumatic for the families and friends of the victim. The distress caused to those close to the victim will be greatly reduced if any defence argument as to provocation-type issues is confined to sentencing. This is because the ability to adduce evidence is far less at sentencing. Provocation issues will not be canvassed before a jury, and sentencing generally lasts only for an hour or so.

The other important point is, we believe, that the risk that juries will acquit altogether when confronted with an intentional but provoked killing is very low. They will still sometimes convict of manslaughter if an alternative defence such as a lack of intent has been run, but they are most unlikely to let an offender walk free on the grounds of sympathy alone.

The repeal of provocation, as a partial defence to murder, from the statute book is indeed the preferred option. It is not proposed that provocation is considered as an express mitigating factor at sentencing. Rather, the sentencing judge will be able to use his or her discretion under the Sentencing Act 2002 to consider whether life imprisonment would be manifestly unjust, given the particular circumstances of the case. If the sentencing judge determines that a life sentence is justified, then he or she can take into account the existence and degree of provocation together with all the other relevant factors in fixing the length of the minimum non-parole period.

The repeal of the partial defence would make factors such as the alleged sexual behaviour of the victim and the nature of the relationship with the defendant less relevant at the trial—the emphasis upon such factors in evidence resulting in a significant amount of distress for families and friends of the victim.

This is an important bill that is heading to the Justice and Electoral Committee. I notice that it is only about six pages long but it is extremely worthy, and I know that the Justice and Electoral Committee, under the very good chairmanship of Chester Borrows, will be looking forward to hearing the many submissions it is likely to receive from the New Zealand public on a very important issue. I commend this bill to the House.

CHARLES CHAUVEL (Labour) Link to this

In the case of the Crown and Ali, Mr Hart was killed by his nephew by marriage Amsheen Ali, who was 16 at the time of the killing. Ali and a friend Nadan had tried to persuade Mr Hart to lend them a car so that they could go out to a nightclub. Their repeated requests were met with refusal. They smoked cannabis with Mr Hart and drank a little alcohol. At one point Ali picked up a knife from the kitchen, played with it, and then put it next to him on the couch while he watched television. At the time of the killing all the other guests had left and Nadan was outside smoking. Ali claimed that Hart had made a homosexual advance towards him, hugging him, rubbing his hands on Ali’s body, and attempting to kiss him on the neck. Ali said that he was scared that Hart would rape him. Ali allegedly pushed Hart away on a number of occasions before he grabbed the knife and stabbed Hart at least five times, including once in the back, once in the chest, and once in the neck. Ali then called out for Nadan and they left Mr Hart’s house, locking it and taking with them his car keys, wallet, credit cards, and some cannabis. Ali subsequently returned to collect the knife, then they drove off, collected two other friends, and drove around Auckland for a number of hours. Ali told his friends about the killing but then said he was joking; he never mentioned the alleged advances. Ali and Nadan then left Mr Hart’s car in central Auckland, after wiping it down to remove fingerprints and taking out the CD stacker and stereo. They then disposed of Mr Hart’s possessions, including his wallet and his credit cards. Ali was arrested the next day. He admitted killing Mr Hart but said he did not mean to. On those facts he was convicted of manslaughter and sentenced to 3 years in prison.

There are equally inappropriate uses of the defence in the casebooks in recent times. My friend and colleague Lianne Dalziel has mentioned the case of the Crown and Ambach. I will not say any more about that because I understand that sentencing is yet to occur in that case. But it is appropriate to pay tribute to Mr Brown, the victim in that case, and to note with satisfaction that if this Parliament does its job in a speedy fashion Mr Brown will be the last person in respect of whom this misguided defence succeeds. I will also not go into the facts in any detail of the well-known recent case of the Crown and Edwards, where Mr McNee was killed and where in horrific circumstances his killer escaped a conviction of murder and was eventually sentenced on the lesser offence of manslaughter. These cases demonstrate that the scope for things to go wrong when this defence is pleaded successfully is ample, and it is appropriate for this Parliament to finally take the action it is taking tonight to begin to erase the defence from the statute book.

As the Minister of Justice said, when the Crimes Act, under which we currently operate, was first passed in the 1960s, there was the death penalty in this country. In those days murder meant a death sentence—it was automatic; manslaughter had other consequences. So one can perhaps see why it would have been thought appropriate at those times to distinguish between a crime of passion, a crime in the moment, and a premeditated killing, and that is what the law did. But since we abolished the death penalty in the 1960s, and, as Lianne Dalziel observed, as even murder does not now automatically result in a life sentence, this defence simply has no further logical application on the statute book of this country.

The defence is additionally inappropriate, as Lianne Dalziel has said, because it legitimises a violent reaction, a lashing out, and that is just not appropriate in a society that is trying to minimise, and refuses to condone, violence. Worse than that, it is a defence that involves almost the ultimate insult to the victim because in general terms, as the cases show, only the voice of the killer is left at the trial—and normally not even the voice of the killer; it is the replay of the killer’s police interview, because usually the killer does not even enter the witness box. All that the jury ever hears is the killer’s account of the victim’s last moments, and inevitably the account is coloured; it is designed to paint the victim as somehow morally inappropriate, and deserving, even, of what eventually happened to him or her. Lianne Dalziel has described a recent case where the public finally realised that the application of the partial defence can have absolutely revolting consequences when a trial is played out and it is applied.

I am pleased New Zealand is joining most other comparable overseas common law jurisdictions that have already abolished the partial defence. Most of them inherited it, as we did, from Victorian English law and have seen fit to do away with it. It is timely that we should do the same. I also want to say a few words, after acknowledging the Minister’s efforts, to praise the work of the Law Commission because as now so often happens with worthy law reform projects in this Parliament, effectively the Minister is giving life to a bill that was the appendix to the 2007 Law Commission report on this matter. As the Minister noted, concerns have been publicly expressed on earlier occasions, when this sort of law reform was considered, that perhaps it might be something of a two-edged sword to abolish the partial defence as far as battered women or the mentally incapacitated might be concerned.

The Law Commission report is well worth reading for people who have those concerns, because it really does comprehensively put them to bed, and demonstrates that in fact doing away with this partial defence would make society a lot safer, including safer for women and for those of diminished capacity, rather than deprive people who might be wanting to avail themselves of the defence in those categories of the ability to do so.

The defence should have gone before now. The Law Commission reported in late 2007. There was a recommendation, I think, because of the recognition that there was ongoing or residual concern about differentiating between a crime of the moment and a premeditated killing, that there should be some differentiation, or ability to differentiate at least, on the part of the judge at sentencing. The recommendation from the Law Commission was that there should be a guideline from the nascent sentencing unit to guide judges when the facts reveal that there was something along the lines of true provocation involved in a crime. It is a matter of record now that the Sentencing Council was not set up prior to the election. It now appears that it will not be set up. That is the reason why the previous Government did not implement the Law Commission’s report prior to the last election.

But it is very good to see the Minister, Simon Power, introducing the Crimes (Provocation Repeal) Amendment Bill today. I commend him for doing so. I commend Lianne Dalziel for having introduced a very similar measure as a member’s bill, and also for showing the generosity of spirit to withdraw that bill and allow the Government bill to proceed. Clearly, given the rules of this House, that is the appropriate thing to do if we want to see this reform enacted speedily. I hope it will be enacted speedily. I hope the select committee will hear submissions that I am sure will overwhelmingly be in favour of reform and repeal. I join other speakers in commending the bill to the House.

KEVIN HAGUE (Green) Link to this

I stand tonight to honour Roy Jackson, Charles Aberhart, Ronald Anderson, Jim Curtis, Barry Hart, David McNee, and Ronald Brown. In 1960 Roy Jackson, a gay man from Auckland visiting his lover on the ship the Whangaroa at the Port of Napier, died after being assaulted by two seamen, who were charged with and acquitted of manslaughter. In this case the judge commented that their attack on Jackson was justified as the ship was their home. Charles Aberhart, a gay man from Blenheim, was kicked to death in Hagley Park in 1964 by six youths aged between 15 and 17, who were found not guilty despite evidence that they had gone to the park for “a spot of queer bashing”. They claimed that Mr Aberhart had provoked them by making a sexual advance.

The killer of Ronald Anderson in Hawke’s Bay in 1994 also used the homosexual panic defence. His killer claimed provocation from Anderson, who had put his hand on the killer’s knee causing a frenzied attack, first with a poker, then by punching, and finally striking him at least six times with an axe. He, too, was convicted only of manslaughter. In 1995 Jim Curtis was attacked and left brain damaged by Tai Tahi Masters after the two met in Napier. Masters hit Curtis using a glass decanter, again claiming homosexual panic after a sexual advance, and was acquitted of both attempted murder and assault.

My colleague Charles Chauvel has recounted some of the details of the killing of Barry Hart in 2003. He was stabbed at least five times. In 2003 David McNee was killed by at least 40 blows from Phillip Edwards, who claimed that a sex transaction had gone too far. Edwards, who had 56 previous convictions, claimed homosexual panic provocation and was consequently convicted of manslaughter and acquitted of murder. Very recently—and I am mindful of Charles Chauvel’s caution around the pending sentencing—Ronald Brown was killed by Ferdinand Ambach, who was found not guilty of murder but guilty of manslaughter. Mr Brown was beaten to death with a banjo, and was found with the banjo’s neck protruding from his throat.

These are crimes that I am sure members will note are characterised by a particular savagery, which is part of a culture of hostility and gay-bashing violence. I will speak exclusively tonight about the loathsome homosexual panic version of the provocation defence, in which the experience of a man receiving a sexual advance from another is seen as something so unacceptable to a reasonable person that responding by killing carries less gravity and is somehow more justifiable.

The Law Commission, which others have referred to tonight, argues persuasively that the partial defence is fatally flawed. The commission’s research indicates that roughly half of the cases it examined where the provocation defence had been successfully used had been in this category of homosexual panic. I note that there is no equivalent heterosexual panic defence. The law is a powerful reflection on social attitudes, but it is also a shaper of attitudes. I have worked over many years on various measures to provide for equal treatment under the law on the basis of sexual orientation. There has been some success, but the Green Party’s policy is not to rest until full, equal treatment under the law is achieved.

The ongoing existence of this defence is a signal that violently taking the life of a gay man is of less consequence than taking the life of another. That is obnoxious in the extreme. It increases the actual physical danger faced by gay men, and it signals in the most graphic way possible both to gay men and to everyone else that our lives do not have the same value as the lives of others. The message sent to gay and bisexual men by the existence of this partial defence contributes substantially to a hostile and negative social environment that lowers self-esteem, and we know that contributes strongly to all sorts of negative effects in health, education, and other areas—a massive waste of human potential.

As Elisabeth McDonald has written this year in the Victoria University of Wellington Law Review: “The availability of the defence of provocation in cases of homosexual advances is therefore problematic because of its ability to excuse those who have subjected gay men to extreme violence in situations where there is no equivalent for straight men. In this way, the operation of the defence reinforces the vulnerability of gay men as ‘dangerous outlaws’. When men who kill in response to homosexual advances are not convicted of murder, ‘courts and juries [further] reinforce the notion … that gay men do not deserve the respect and protection of the criminal justice system.’ ” She goes on to say: “To the extent that a partial excuse is potentially available to men who kill as a consequence of any unwanted homosexual advance, however minor, it is difficult to explain this as anything except the condoning of homophobia. The script is that there is something seriously provocative about such an advance when made by a gay man to a straight man, when in any other context the provocation would be minimal or non-existent.”

Some will say that this law is an artefact of historic attitudes, now, thankfully, in the past. I draw members’ attention to the successful use of this defence this very year in the savage killing of Ronald Brown. This is a current issue, and it impacts right now on the way we live our lives. I choose not, however, to point the finger at past Governments that have not taken action to repeal this provision. Instead, I acknowledge the work done on the issue by Tim Barnett previously, and by Lianne Dalziel and Charles Chauvel. I give my thanks to Minister Power and to his colleagues in his caucus for taking this action now.

I am aware that there will be those who wish to argue that there are still valid reasons for retaining a provocation defence, and I know that these issues will be expressed at the select committee, including concerns that repeal will remove a legitimate defence for battered women and that the change will effectively shift the decision-making balance between judge and jury. But today, tonight, we take a stand for the intrinsic worth of all human beings and for the basic right of gay men to live and to love without discrimination.

DAVID GARRETT (ACT) Link to this

I rise to speak on the Crimes (Provocation Repeal) Amendment Bill. Before I get to my notes I would like to say that in my relatively short time here I do not think I have heard a more moving speech than that made by the previous speaker, Kevin Hague. I would like to make it absolutely clear to this House and whoever may be listening that I find it absolutely repugnant that someone—and I am vaguely familiar with the case in Christchurch some years ago that was referred to by Mr Hague—could go off for a bit of queer bashing, I think it was called, and successfully use a provocation defence.

I also find it difficult to accept the outcome of the more recent McNee case, where a sex worker who obviously knew he was going to have a sexual transaction with a man could then successfully use a provocation defence. I want to make it very clear again that that kind of savagery has no place in 21st century New Zealand. Having said all that—and I will not resile from my preamble—we are only cautiously supporting this bill at its first reading.

I was looking around the House while my colleague Kevin Hague was speaking. I do not know every member. I know many of the members who are lawyers—I am thinking of Mr Power, Mr Chauvel, Ms Dalziel, and Mr Parker. But as far as I am aware, none of us is a criminal lawyer. I certainly am not.

The question of a provocation defence is a very, very vexed question, and I believe that the bill is the epitome of a measure that should go to a select committee. It is absolutely not simple. I notice with great interest that there is universal support for the bill at its first reading from all sides of the House, and, as I have said, as was shown in the most moving way by Mr Hague.

The Hon Lianne Dalziel, as Mr Power and Mr Hague mentioned, was lucky enough to have a bill pulled from the ballot a few weeks ago. Her bill would have done much the same thing as this bill, and I notice and applaud her for graciously eschewing political point-scoring and for giving her support to this Government measure.

As much as I respect the Hon Simon Power, I fear I cannot accept that this bill and Ms Dalziel’s bill are unconnected with the recent Weatherston case. Before I speak any further let me make it very clear that I am very, very aware of the boundary between this legislature and the courts. If I thought for one moment that Justice Potter would be influenced in her sentence by what I am saying tonight then I would say no more. I understand that the convention of non-comment extends beyond verdict to sentence, and I will choose my words as carefully as I can.

I think it is unavoidable and it does not help—and I mean no disrespect to the honourable Charles Chauvel—to refer to a recent prominent case. We all know that that case is of Clayton Weatherston stabbing his girlfriend. I will confine my observations to those facts that are public knowledge. Weatherston stabbed his girlfriend 216 times in a frenzied attack, continuing long after she was dead. At his trial the defence he used was that of provocation. It has to be said, to digress just slightly, that he did not have any other defence, it seems to me, inexpert as I am in criminal law. His defence was, at least in part, that she deserved to die. That the provocation defence was even available to him upset many people.

In the past I have criticised criminal lawyers, but I would like to go on record as saying that the criticism of Ms Ablett-Kerr in this particular case is abhorrent. Criminal lawyers have to do their job. It is not a part of the law that I chose, quite deliberately. Criminal law is a vital part of our system, and she offered what seemed to me to be the only defence available. But that defence failed. Twelve ordinary people heard it. The jury saw the odious Mr Weatherston smirking in the witness box, and they rejected the defence.

One point that has escaped attention, both in this House and, sadly, to a great extent in the media, is that Weatherston could have done exactly the same thing using the defence of self-defence. It will be recalled that he claimed—and as other speakers have said correctly, no one was there to contradict him—that Ms Elliot attacked him with scissors. So he could have used the defence of self-defence and could have said the very same things.

I say again that the provocation defence did not work. Provocation is—

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Deputy Speaker. Kia ora tātau katoa e te Whare. Ko tāku i te tuatahi, i a tātau e kōrero nei, mō te āhuatanga o te hunga kua ngaro atu i te tirohanga kanohi. Pēnei te āhuatanga i runga i te marae, me poroporoaki te hunga kua ngaro atu i ngā wiki, i ngā marama, i ngā tau kua hipa. Kua areare mai ngā taringa ki te āhuatanga o ngā kōrero a tēnā, a tēnā mō te hunga kua kōhurutia. Nō reira, ka tangi te ngākau mō te āhuatanga o ngā kōrero ka mutu, hoi anō i a tātau e noho nei i roto i te Whare Pāremata i tēnei pō, waiho rātou kia moe.

Ko tā tātau he whakatikatika i te ture, kia whai i tētahi huarahi hōu, kia kore tēnei Whare Pāremata e kōrero mō ngā take, ngā raruraru kua puta i te pō nei ā ngā tau kei mua i te aroaro. Ko tā te pire nei he whakatikatika i te Crimes Act. Kei roto tonu i tērā wāhanga e mea ana he momo karo tēnei i te whakakārangirangi, te mātātoa rānei mō ngā hāra nui, mō te kōhuru tonu. I raro i te ture i tēnei wā, ka whakaitingia te whakapae ā-kōhuru ki tērā o te whakapae ā-mate tūpono mēnā ka mate tētahi i raro i te korowai o mātātoa, o akiaki rānei. Ka tau tonu tēnei āhuatanga o te kōhuru engari, ka āhua whakarāpopotohia te roa o te noho i te whare herehere. Hei tā te pūrongo o te Kōmihana ā-Ture o te tau 2007, me whakakore i tērā wāhanga o te ture e mea ana, arā, ko tēnei mea te mātātoa. Ehara i te mea he maha ngā wā kua kōkirihia taua huarahi, ehara i te mea i waimaria. O ngā kēhi kōhuru e 81 i waenganui o ngā tau 2001 ki te 2005, e 15 i whai i tēnei momo huarahi, e rima noa iho i waimaria. I whakapapa mai tēnei wāhanga o te ture, kaua i tērā rau tau engari, nō te rau tau e 17 kē i kawea mai tēnei tikanga i roto i te Criminal Code Act 1893, ā, ko tōna pūtake mēnā ko te kōhuru tōna mutu mai, “he kōhuru tonu nā runga i te mura o te ahi, he mahi ā-ngākau, he mahi ohorere”.

Kāti, ko te mate kē, kia mōhio mai tātau ko te tau 1893 te tau i whakaaetia kia pōti tonu te wahine i Aotearoa nei. Koia nei te pōrangi o tēnei momo ture. He mea nui tēnei whakatau i te mea, hei tētahi ahorangi ā-ture nei i te Whare Wānanga o Wikitōria, hei tā Elisabeth McDonald me āna rangahau, i te nuinga o ngā momo kēhi ā-mātātoa nei, koia ērā ka puta i te wā ka mea tētahi tāne i patu i tētahi kia mate, nā ngā mahi whakaiti, whakahē rānei ā tētahi ki a ia, nā tana pōhēhē rānei he ngoikore te ure, he koretake te ure, he ure tautau ēnei momo āhuatanga katoa. Nō reira, he whakaiti tonu te titiro ki ēnei momo tohe. I ngā rā o mua, mēnā he whakakairanu te mahi, he moe wahine tahi, rua, toru rānei, ā, ka patua te wahine, he “crime of passion” tērā. Arā, anō nei e tika ana kia mate te wahine. Hoi anō, i ngā tau 90 ko tā wētahi whakataunga Kōti Pīrā, kāo. Ahakoa he whakakairanu te mahi ehara tērā i te karo, i te whakautu rānei mō te mahi tīwēwē a te tangata. Nō nā tata nei kua kōkirihia tēnei momo karo ā-mātātoa nei i te kōhurutanga o te hunga moe whakaeneene ā-tāne nei ka mutu, kua puta te kōrero, arā, te “homosexual panic defence”.

Ko ētahi kua kī, ko ngā karo ā-ture ngā tikanga ā-iwi me kī, nā te mea nō tētahi iwi tētahi. I te Kōti Pīra, i puta te kōrero ko te “slow-burning anger or passion”he āhuatanga o te iwi o Hāmoa nā te whakapapa rānei, nā te ira rānei o te tangata i pērā rawa te tangata hara. Kāre mātau i te kite i te tika o tēnei momo whakaaro. He rangirua te mutunga mai. Kei roto i te Sentencing Actwāhanga 27 tētahi kōrero e tono nei ki te kōti, kia rongo i ngā kōrero ā-whānau, ā-hapori, ā-iwi tonu o te tangata hara. Mā tēnei ka kitea ko te tikanga o ēnei kōrero ā-whānau, a-hapū nei ki tōna hara ka mutu, ko ngā momo huarahi hei whakatikatika i te hē. Tērā pea, ka whai wāhi ko te tangata hara me te tangata i rongo i tōna hara kia noho tahi. Nō reira, he kōrero nui ēnei kia whai wāhi te wāhanga ā-tikanga iwi i roto i ngā whiriwhiringa. Nō reira, kei roto i te ture, arā, te Sentencing Acttētahi wāhanga e anga tonu atu ana ki ngā tikanga ā-iwi, kāre mātau i te kite i ētahi painga o te noho o tēnei mea ā-tikanga nei i roto i tēnei ture hōu.

CHESTER BORROWS (National—Whanganui) Link to this

It is a privilege to be able to stand and take some role in this debate on the Crimes (Provocation Repeal) Amendment Bill. It is interesting and heartening to note that the law is able to make some changes to take account of the, I guess, “livingness” of the criminal law as it operates within our society, of changes that occur across that society, and of the ways in which the criminal law evolves. It is interesting and pleasing to see that there is conviction from all sides of the House to enter into the debate around the defence of provocation and whether the time has come for its removal.

I am one who argues that the time has come for the removal of the defence of provocation, given that there has been the removal of the mandatory imposition of a life sentence upon conviction of murder. The historical context, as has been explained, is that the defence of provocation arose during a time when capital punishment was the preferred sentence for someone convicted of murder and, more recently, when a life sentence was mandatory.

A number of statements have been made in respect of battered woman’s syndrome. It is important to note that that particular defence is not applied to provocation but, more likely, to one of self-defence, because of the slow-burn nature of battered woman’s syndrome and the acts that come out of it. It is important to note what would happen with the removal of the defence of provocation in respect of charges of manslaughter. Two charges would be laid: one of murder and one of manslaughter where, for instance, there is an indication of some heat in the response to the behaviour exhibited around the situation where homicide has prevailed. Two charges would then be put in front of juries: murder and manslaughter, which is laid in the alternative. Within the jurisprudence that seems to have evolved in cases where there are one or two stab wounds, it seems that juries prefer a conviction on a charge of manslaughter as opposed to one of murder. Some cognisance is taken of the “heat of the moment” in respect of those charges.

There has been some suggestion that no evidence would be given and that no cross-examination would be made in order to bring out evidence of provocation. I tend to think that there would be some evidence to a degree so that it could be raised at the time of sentencing. But I do not think there would be anything like the sort of labouring of the cross-examination, to bring out evidence, along the lines that we have seen over the last 20 years or so, especially in respect of the most recent and high-profile cases we have seen on our televisions.

I think it is certainly time to look at how this particular defence has played in the minds of juries. In the future I personally would like to see us take a look at the way and the circumstances in which we use juries. It is a real shame, I believe, that in many cases juries have the full theatre of court—or what is reduced to a theatre in a courtroom—played out upon them. Then there is a collective wisdom, but in some cases some would argue it is a collective prejudice against complainants as they are outlined to be by evidence given, particularly by a defendant, which is quite rare, and by those tending to be called by the defence in order to build a platform for a provocation defence.

We need to think a little bit more—and I hope we do it soon—about how in the course of jury selection and jury debate around cases, this collectivity can work upon the minds called to make decisions in the jury process. We can tend to find—and we find it not only in cases such as these but also particularly in cases of sexual offences against children—that if individual jurors were able to make a decision based solely on their thoughts and their assessment of the case, without having to enter into the quite severe debate within the jury room, then they may well come to a different view. I believe that that is definitely the case.

It seems a bit obscure to make those comments now without trying to cast aspersions on those who sit on jury panels, but I believe that this defence would never have received the sort of traction it has in the types of cases around homosexual bashing if the jury system was set up to allow people to be able to hold their views a little more privately at a time when they are making these decisions.

Finally, I say as chair of the Justice and Electoral Committee that I am pleased to be able to stand in this debate and acknowledge this bill. I look forward to the discussion and debate, and to the submissions that will come before us, and I acknowledge the fact that there seems to be some unity around the House at this time.

LYNNE PILLAY (Labour) Link to this

Along with other members in the House, I am pleased to stand and speak in support of the Crimes (Provocation Repeal) Amendment Bill. I first acknowledge the work done by my colleagues Lianne Dalziel and Charles Chauvel, who worked very hard on the recommendations. In fact, I also acknowledge the work done by the Law Commission over a considerable period of time on this really important issue. The principles of this bill were originally brought to this House not very long ago in Lianne Dalziel’s member’s bill. I think that it has been a very sensible, pragmatic approach for the Government to acknowledge how important this issue is. I can see Simon Power nodding his head in acknowledgment of that. This bill is now before the House—and certainly not before time.

I do not want to be negative, but I noted when reading the Law Commission’s report the comment that the repeal of the provocation defence would have been enhanced by the provision of a guideline. I think the recommendation at that time was for a guideline from the sentencing establishment unit. If there is one thing I am sorry about, it is the disestablishment of the Sentencing Council. I think that in these circumstances it would have added value.

However, we are not here to languish for the council; we are here to look forward. In doing so, I say this measure is very much about justice. It is really important that many organisations, and in particular I acknowledge Women’s Refuge, have been very vocal on this issue. I acknowledge the work that that organisation and other victims organisations have done in advocating for the rights of not only the victim, the person who has been the subject of a murder, but also the families and friends who have lost their loved one in such a ruthless way, and who have then had to go through another re-victimisation process in terms of sitting through the court process and hearing the provocation defence. I know that nothing will relieve the anxiety and pain associated with that, and none of us can really realise how devastating that is for families. No one can repair that.

But I know it will certainly be of some reassurance to people who have been in that situation that all parties in this House, except for the ACT Party, are at this stage supporting the referral of this bill to the select committee. I note that the ACT Party, although it gave a supportive speech, has made it very clear that it is supporting only the bill’s referral to the select committee. But I am convinced that through the submission process, through hearing submissions from the families and organisations that will have their say, those members will become absolutely convinced about the merits of this bill. The bill deals with an injustice within our justice system, and it offers the ability to correct it. We have before this House a bill that I hope will attract support from every party, although that does not happen often in justice matters. I think that would be a very good message to give to victims in this country. It would tell all perpetrators of crime that this Parliament does not believe that a provocation defence is acceptable in this day and age, and it would give the message that the re-victimisation that happens through that process is just completely unacceptable.

I stand, along with my colleagues and other members of the House, in commending this bill. I am very pleased that it is to come to the Justice and Electoral Committee. I know, because this always happens with regard to bills of this nature, that we will have many submissions and that many people will come and tell their stories. That will be very painful for them and it will be very moving for the members of the committee, but it is something that is important. It is important to our justice system, and it is important to all New Zealanders. I am very proud to commend this bill to the House.

PAUL QUINN (National) Link to this

I am humbled to be invited by the whips office to make a short call on this bill, the Crimes (Provocation Repeal) Amendment Bill. The reason I am humbled and pleased to be able to stand to make a short call on the bill is that I support it on the basis that the defence is past its use-by date.

This law has been on our statute book for a number of decades. It was based on a justice system in a society and in a period when, in particular, the mandatory life sentence for murder applied, and provocation was one of the mitigating circumstances that was taken into consideration in order to deal with that situation. At this moment in time it is appropriate that we review this statute. In so doing, while I acknowledge previous speakers—and I do not want to lessen the impact of the speeches that have gone before, or the sincerity of those speeches—I think it is important to acknowledge that the defence of provocation has been called upon in most circumstances by a man who has had his sexuality questioned by a woman. I think it is very important that we note that it is a much broader issue than—if I can frame it in this way—just gay-bashing. I think that we should not lose perspective of that fact.

I am very pleased that I will be able to participate in the conversation that will occur in the Justice and Electoral Committee, and I will be pleased to join both my colleagues on this side of the House and my friends on the other side of the House to consider this bill. Like my friend and colleague Lynne Pillay, I look forward to hearing the submissions when they are presented before us. With those few short words, I say that I will be supporting this bill’s referral to the select committee. Thank you.

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I rise to take a brief call to congratulate my friend and colleague the Minister of Justice on moving on this very important issue so quickly. He has had a huge legislative workload this year, but he has given this issue some real priority. This is indeed a very, very serious issue, and one that has been crying out for reform for many years.

I commend the Law Commission for a very good piece of work, which was sent to the former Minister in charge of the Law Commission, the Hon Mark Burton, on 30 September 2007. The foreword by Sir Geoffrey Palmer makes for very interesting reading. He referred to the 2001 report, which had recommended repeal of the partial defence of provocation. I was very disappointed that Labour, during its term in Government, did not do anything about that. Then, in 2007, this report came out, and it expressed the views of the legal profession and of Crown solicitors. Twelve out of 16 Crown solicitors supported the repeal of the partial defence of provocation. The report said that senior members of the judiciary have, in appellate judgments, repeatedly expressed dissatisfaction with the defence. It referred to the concerns of women’s groups; it referred to the concerns of gay groups. As Sir Geoffrey said, the prevailing view thus appeared to be that something must be done about section 169 of the Crimes Act. But unfortunately the previous Government did not do anything about that matter after it received a very powerful report from the Law Commission.

Mr Chauvel is right. The defence should have gone before now, and the fact that it did not go should be a source of shame for the previous Labour Government. It was not because of the previous Government’s desire to have the Sentencing Council look at the issue. I think that is a feeble “after the event” rationalisation. It was because Helen Clark’s Government had different priorities. I would not want Labour Party members to think they can take any credit for this Crimes (Provocation Repeal) Amendment Bill. The credit for it rests solely with the Minister of Justice. They cannot take any credit whatsoever for it. They had every opportunity to act during their time in Government, but neglected the issue or refused to take any action whatsoever. Undermining freedom of expression in an election year was their priority; reforming the criminal law is ours.

Hon SIMON POWER (Minister of Justice) Link to this

I move, That the Justice and Electoral Committee consider the bill and that the committee report finally to the House on or before 19 October 2009, and that the committee have authority to meet at any time while the House is sitting (except during questions for oral answer), and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).