Crimes (Provocation Repeal) Amendment Bill

Hon TIM GROSER (Minister of Trade) Link to this

I seek leave for the Committee on the Crimes (Provocation Repeal) Amendment Bill to take the bill as one question.

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

The Crimes (Provocation Repeal) Amendment Bill is a very important measure that the Committee is debating tonight, and I think it is a shame that members do not have a unanimous position on it. I think that that would be respectful to those who suffered throughout the trial of the Sophie Elliott case. I find it incredible that the one example that has been brought to the House as a reason for voting against the passage of this bill is a case that did not occur. It is the “case” of a close relative of Sophie Elliott coming into the room as she was being killed and expecting that a particular response—seeking to defend the life of a sister, in that particular case—would not fall within the definition of self-defence. In that entire contribution no mention was made of Ronald Brown. Ronald Brown died at the hands of somebody who said that Ronald Brown had approached him in a manner that was a homosexual advance, and that he was so affected by this approach he felt that it was within his right to claim the defence of provocation against a charge of murder, and he claimed that defence for himself. Mr Ambach was found guilty of manslaughter, not murder. I find it incredible that anyone can stand in this Chamber and put a hypothetical story ahead of the real case we have had played out in our courts. It was not on our television screens in the way that the Clayton Weatherston case was played out, but it was a case that happened pretty much at the same time. We saw the provocation defence being used.

I think what members—perhaps only a few—have overlooked is that provocation is only a partial defence. The partial defence existed when murder attracted either the death penalty or, subsequently, a life sentence, as the only mechanism for showing society’s abhorrence for the action that had been undertaken. For a person’s intentional taking of someone else’s life, society said that that person’s life would be taken—an eye for an eye, a tooth for a tooth, or whatever the expression might be. The death sentence was the original sentence for murder. That was replaced in this country—and I cannot recall the exact date off the top of my head—with a life sentence for murder. [Interruption] I cannot remember when the death penalty was replaced with a life sentence, but I believe it was in the 1960s. In 2002 a further step was taken, and that was to remove the obligation on the court to impose a life sentence if a murder conviction was entered. That was to recognise that there would be circumstances where the intentional taking of life would be proved, but the imposition of a life sentence would not produce a just result.

I heard the chairman of the Justice and Electoral Committee, Chester Borrows, use the example of the individual who entered into a suicide pact with his wife. That was a tragic, tragic case. The suicide pact was a two-way thing. It was effective for the taking of his wife’s life but was not effective in his own case. He survived his suicide attempt even though he had assisted his wife’s suicide. In that case he pleaded guilty to the charge of murder. He had intentionally taken the life of his wife. There is not a Court in this land that would have felt comfortable with imposing a life sentence on somebody in the tragic circumstances that played out in that particular case. So the court exercised the discretion that it now has under the Sentencing Act and imposed a sentence of 18 months, with leave to apply for home detention. That was an acceptable way of saying that there was a difference in such cases.

My deep and abiding concern about leaving this issue to a jury is that we invite jury members to put themselves in the place of the person who has been accused. We invite them to apply every prejudice that they might hold against the person who has provoked the individual. Nothing justifies the acceptance of provocation. I have felt very angry with people on occasions, but not so angry that I would want to take their lives. I cannot imagine a circumstance where I would be so angry. I have noted before that, when a lot of the feminist literature about the subject of the provocation defence was written back in the 1980s as a response to Dr Minnett killing his wife Leigh Minnett, many headlines changed the word manslaughter to “mans laughter”. The two words of course join to form the word manslaughter. The point was that it seemed that the characteristics of the reasonable expectation around self-control, and what would breach that self-control, applied only to men in those circumstances; they certainly did not apply to women.

In fact, women were far more likely than men to end up in front of the courts accused of the murder of their spouse or partner than men were. They would be far more likely to do so in what the court might consider to be a far more considered and cold, calculating fashion, because obviously the respective strengths of a man and a woman are different. Often, the woman’s response took the circumstances a little more into account. For example, in the case of the woman who took her husband’s life while he lay sleeping, the court accepted fully in that case that she was the victim of domestic violence, that she had been subject to severe threats, and that those threats had been made not only to her but also to her wider family. There are other instances where women have not been able to rely on the defence, because of the method of responding to the fear that they have felt. Nothing excuses the level of provocation that has been claimed in the cases that have been played out in the media over recent times, either.

Historically, this defence has had its time. Those who say that we are debating this legislation in Parliament now because of the two cases that we had in front of the courts over recent times actually have not bothered with the history of this defence. The Law Commission came down very, very clearly on two occasions for the repeal of the defence. The issue went back to the Law Commission for the second report because there was a concern about battered women’s syndrome and about people with mental impairment. There was a concern that, in actual fact, in the kind of defence where we would expect provocation to play a role, the defence had not been able to be used by the very people whom the Law Commission was concerned about. The Law Commission took a lot of time to do the research. I know that we have the figures in front of us somewhere that detail the number of successful uses of the provocation defence over the 5-year period that the Law Commission looked at. In 2007 it found that provocation was successfully relied upon by very few defendants. Crown prosecution files showed that during the 5-year period provocation was successfully relied upon in only four out of 81 murder cases.

So the defence really is an anachronism now, and it is time for it to go. I think it is unfair to use a hypothetical example arising out of a tragedy, when we know that the effect of having that defence there led to that particular family having to listen to things about their daughter that, in fact, nobody could get up and refute, because the only person telling the story was the one who had silenced for ever the other witness to the events in that room that tragic day. So I believe that we owe it to the families—not just of the recent cases, but also of the ones that have gone before—to them to act in unison in this Parliament and remove the defence. The reason for the defence has gone—it went with the death penalty and it went with the automatic life sentence—and it is time that we leave this matter to the judges. We are inviting juries to substitute their prejudices for law. That is what the Law Commission said, and I believe that it is absolutely vital that we take this opportunity to act as one and remove the defence that should no longer be on our law books.

JACINDA ARDERN (Labour) Link to this

I want to go back to the hypothetical situation that was set out by the Hon Rodney Hide, then followed up by my colleague Lianne Dalziel. I feel that Rodney Hide gave a disingenuous presentation of the way that a situation like that would currently be dealt with in our criminal justice system. I would be loath to leave the public or anyone else believing that when the Justice and Electoral Committee reviewed this repeal we felt that it would in any circumstances give rise to situations such as the scenario painted by Rodney Hide, where a family member who retaliated on seeing a family member murdered would be landed with a 17-year prison sentence. That is not the kind of scenario we would see, given the way that the Sentencing Act 2002 is currently drafted.

The reason I find his presentation disingenuous is that l would be very surprised—I do not know for sure; I would like some clarity from Rodney Hide as to the way ACT voted on the Sentencing Act 2002—if, in fact, ACT supported the level of flexibility that was purposely drafted into the law to allow for the very scenarios that he is painting. I would be very pleased to hear Rodney Hide speak again during the Committee stage to clarify his party’s position on the Sentencing Act 2002, which I think deals with the very issue and the very concerns that he has raised as a consequence of the repeal of the partial defence of provocation.

I will go over the parts of the Sentencing Act that would deal with this situation. Section 102 sits under Subpart 4 of Part 2. I referred to it in my previous speech. It sets out that although there is a presumption in favour of life imprisonment for murder, “An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.” I think the situation and the circumstance that Rodney Hide set out would, by any layperson’s reading, fit the criterion of being “manifestly unjust”. Indeed, further on in the Sentencing Act a number of explicit criteria are set out; when the imposition of a minimum period of imprisonment of 17 years or more would be required, there are a series of mitigating factors that, again, explicitly exclude the kind of scenario that Rodney Hide has set out for the Committee. So I think it is misleading to claim that this repeal could give rise to that kind of scenario. Chester Borrows, the chair of the committee, set out the case of someone involved in a suicide pact. At the time of the Sentencing Act discussion and debate, examples were frequently used of elderly couples and euthanasia. Again, those are situations where that threshold of “manifestly unjust” is very likely to be reached. I invite Mr Hide to explain to the Committee whether ACT supported the Sentencing Act 2002, and, if it did not, to explain how he reconciles his two differing positions on those provisions.

I will also dwell briefly on another point, which also was touched on by my colleague, and it is around the idea of battered defendants who are mentally ill or impaired. Some submitters presented to the committee in defence of use of the partial defence of provocation by defendants who are considered to be battered. The phrase “battered wife syndrome” was raised a lot in the select committee. My colleague has already pointed out that in cases where this partial defence has been used, it has been highly unsuccessful. So the argument could be raised that even if a defence is necessary for those particular circumstances, this defence is not it, because it has not worked for those groups of defendants.

The majority of the select committee concluded that it would be more appropriate for most of those defendants to rely on the defence of self-defence. I would add one qualification to that. There was quite considerable discussion in the select committee as to whether self-defence was a useful or successful defence for those particular defendants. A lot of people working in that particular sector—domestic violence, in particular—pointed to a number of scenarios and examples of battered women for whom we might consider it would be appropriate to argue self-defence, but the minds of a jury may perceive self-defence as the kind of defence that would be used if a woman retaliated after an immediate act of violence or felt herself under an immediate threat. They made the point to the committee that that does not fit with the psychology of battered women, and that there perhaps is a disconnect between what we see as the characteristics and behaviour of battered women and a jury’s perception of what constitutes self-defence. We did not reach a conclusion as a committee as to how we would appropriately deal with that particular problem and that disconnect. The only conclusion that we came to—on Labour’s side of the table, in particular—was that it was the exact kind of situation where we would be inclined to ask a Sentencing Council to consider where it would be most appropriate for these kinds of women to look in terms of their defence, given their situation. That is another reason why it is disappointing that the Government has removed the idea of a Sentencing Council, and has used all of the funding for it for the administration of a costly and potentially unsatisfactory offender levy.

I am pleased, though, that we are finally repealing the defence of provocation. The scenarios that have been painted by other members of the Committee are adequately covered, I think, by existing law. Again I invite Mr Hide to explain to the Committee his position on the Sentencing Act 2002.

CATHERINE DELAHUNTY (Green) Link to this

I will take a very brief call in support of the Crimes (Provocation Repeal) Amendment Bill because Kevin Hague is not here to do so and I know that he was very, very passionate in support of this bill. Without being a lawyer, I appreciate the comments of the lawyers in the Chamber who have spoken about this bill from the point of view of evolving law. I highly support the comments of Lianne Dalziel about the use of discretion being maybe a heavy burden on judges, but it is preferable to an outdated mechanism such as the provocation defence.

When talking about the evolution of law I am thinking back to my earliest memory of kneeling in front of the radio the night that Parliament voted out capital punishment. My father was standing there virtually crying with joy because he campaigned against hanging in this country. One of my earliest memories of political participation was seeing what he went through and how happy he was that the law had evolved. I am thinking also about when I was travelling through Ireland and it was described to me that a gypsy was found stealing something from a farm in Ireland and was killed by the farmer with a fork. The defence was provocation, not because the gypsy had attacked the farmer but because the Roma—the travellers—are regarded as less than human. Therefore, the Irish judicial system had accepted that provocation was acceptable. The farmer was able to get away with killing somebody, simply because of who that person was.

I think about homophobia in this country and how it is still alive and well. I still hear young people, particularly young males, speaking in a homophobic way constantly about the idea that if anyone should approach them, that would easily provoke violence in them. I think we have a long way to go when it comes to addressing these things, which is why this bill is really important. We are removing a risk that that can be used against a person such as the victim of a homophobic murder.

We have come a long way. We have only to think about the Ku Klux Klan and how they have justified ethnic cleansing, and all the other stereotyping and violence that has been used to justify the murder of innocent people right across the planet. Battered woman’s syndrome is another example of how the law has evolved.

That is what we are here to do—to help the law evolve in a way that will be fair and just, and allow the courts to exercise due discretion and wisdom. I am sorry that Kevin Hague is not here to speak more eloquently. I know he did at the first reading. But the Green Party is pleased to support this bill and pleased to see so much unanimity around the House about it. We will be delighted to see this bill progress into law, for the sake of all the people who have been unjustly killed simply because they were different from the violent offenders who took their lives. Kia ora.

DAVID GARRETT (ACT) Link to this

I start by acknowledging my colleague Catherine Delahunty, and more particularly my colleague Kevin Hague, who spoke to me about the Crimes (Provocation Repeal) Amendment Bill some weeks ago. I have thought about it, and our caucus has thought about it. I have just walked into the Chamber, as you know, so I am not entirely aware of what has gone before me; members will forgive me if I am repeating what has already been said.

Nobody could be comfortable with the success of provocation defences in the case of Mr Ambach and in the case of—to cite the victim’s name—David McNee. I will start with him. That case was an example of a rent boy who was hired by Mr McNee to perform a service. His defence was that the terms of the contract, if you like, went way outside the boundaries, so he panicked and killed Mr McNee. I cannot remember the name of the offender; somebody will remind me, no doubt.

Hon CHRIS CARTER (Labour—Te Atatū) Link to this

I stand to support the Crimes (Provocation Repeal) Amendment Bill. After listening to the previous speaker, David Garrett, I say that I am a parent and I am a gay man, and I could hear the dog whistle in that speech. It was all about molestation; all that emotive stuff that has been used all too often as an excuse for bigotry and prejudice.

Mr Garrett did not say it, although I did sense that it was there in the background, but all too often people have stood up in the New Zealand courts and said: “I killed that guy because he hit on me.” I would like to ask the women in this Chamber how many times they have been hit on in their lives when they did not want it. It is probably lots of times. It was offensive, degrading, and it made them angry, but it did not give them the excuse to kill someone. They did not have that excuse, but that excuse has been used so often in the defence of people who killed gay men. They said they were so offended that a guy hit on them. I say again that the women in this Chamber know what that means. They know how offensive it is, but it does not give someone an excuse or a reason to kill another person. Saying no is enough, and if that does not work, there are other strategies and mechanisms that can be used, but we do not kill someone.

I do not think there is any excuse to give someone a licence to exhibit their prejudice. After all, where would end? It still sits there with gay men. It used to sit there with race. I suspect in some cases it probably still does, and that is totally unacceptable. Once it sat there with religion. My ancestors came from Ireland, which is a nation that was divided on religion. Religion was used as an excuse to kill people. No one would accept that today, and no one should accept sexual orientation as a basis to kill someone or to excuse their actions in murder or violence.

I say to Mr Garrett and to those who are opposed to this legislation that our law is robust. It is designed to keep people safe, and it has processes that are tried and true. There should be no loophole for a person to use prejudice to excuse actions that are illegal. Thank you.

CAROL BEAUMONT (Labour) Link to this

I raise a point of order, Mr Chairperson. Did the Māori Party just cast 5 votes in favour?

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

I seek leave of the Committee to change the vote. I have just checked with our people. I would like to change the Māori Party’s vote.

The TEMPORARY CHAIRPERSON (Charles Chauvel) Link to this

I move, That the report be adopted.