Crimes (Provocation Repeal) Amendment Bill

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

Thank you for the opportunity to continue speaking in the second reading of this important bill, the Crimes (Provocation Repeal) Amendment Bill. It is important that we consign the provocation defence to history. It is anachronistic, and, as I was saying as the House concluded its business the other night when we were dealing with this matter, this particular defence allows the charge of murder to be reduced to a finding of manslaughter. The word “manslaughter” was reported in some of the feminist literature of the time as being made up of two words: “man’s laughter”. That is because, in the days when I knew about this defence when I was a law student, there had been a very high-profile case where a husband, Dr Minnett, had killed his wife, Leigh Minnett, not actually very far from Parliament. The claim that he had made was that he had been so outraged and incensed, a rational response to an attack on his masculinity that his wife’s affair had brought about within him, that he was compelled to go and get his gun out of the wardrobe to shoot and kill her. As a young law student I, of course, found it utterly reprehensible that he was essentially able to get away with murder.

The interesting thing is that I found one of the old Broadsheet articles on the killing of Leigh Minnett, and I thought I would just read into the record the last little bit of that particular article, because I though that it really did sum up what was so wrong with the defence of provocation. It states: “The worst that can be said of a woman is that she sleeps around. Leigh was publicly tarred with this brush. The worst insult to a man is just the opposite: that he can’t get it up and it’s not worth getting up anyway. This is such a dreadful thing to say that it excuses even killing the speaker. The double standard has never been more clearly demonstrated than it was in the shooting of Leigh Minnett.” That is a really compelling statement, and it is why the defence must go.

Since that time, though, we have found the defence used in other circumstances. At this point I want to refer to the killing of Ronald Brown. I referred to him in the first reading debate on this bill, but want to mention him again, because his case will be—now we know this—the last case where the defence of provocation was successfully pleaded. His case sums up everything that is wrong with the defence, but from a different perspective from that applying to Leigh Minnett, where her husband was given a lawful excuse, as it were, to take her life and evade a conviction for murder, which really should have been applied in that case. In this case the defence was that an individual’s sexuality was threatened. The person who took Ronald Brown’s life was fearful that he was going to be the subject of a homosexual advance. Again, I say there is nothing that justifies the taking of another life, and, certainly, to plead that in these circumstances is reprehensible in the extreme.

I would have liked to say that the reason that the Ronald Brown case did not attract the media attention that Sophie Elliott’s murderer attracted was that the accused person in the Ronald Brown case did not give evidence at the trial. But deep down, I do not believe that was the reason. I believe that the media should reflect on what they have done in terms of the coverage they gave to Sophie Elliott’s murderer. These two cases stand in stark contrast to each other. I think that people need to look into themselves, and to ask themselves the question of whether the public interest was served by dishing up the narcissistic, personality-disordered individual whom we had presented to us night after night on our television screens, and by almost no mention being made of the individual who took Ronald Brown’s life. I think that that did not serve the public interest. I believe that what occurred was disrespectful to the family of Sophie Elliott and to her memory. I also think it was disrespectful to the family of Ronald Brown and to his memory, as well.

Nothing will reverse what happened in any of the cases where this defence has been pleaded. But I do think it is important for people to say there may be something that this Parliament can offer up to the victims’ families, and that is the knowledge that their experience in the courts will now galvanise the response of this Parliament into what, I hope, will be a unanimous vote of support for repeal. The facts that we are now up to the second reading, and that we will shortly move on to the Committee stage and the third reading tonight, means that this day, 24 November, will go down—it is technically 24 November; though we know that it is really 26 November, the date will be shown on our record, because we are in urgency, as being 24 November—as the day before the day that we acknowledge internationally violence against women. I think that tying this fact to the campaign that we have all been involved in, on both sides of the House, in the It’s Not OK campaign means it is really special that we are able to take this defence off our law books at such a time.

I believe that we will have plenty more opportunity to debate this bill as we go through the Committee stage, and then on to the third reading. I think the Law Commission’s report on this matter contained a very powerful statement when it referred to whether we should have a generic partial defence to murder. My very strong view is that we should not. The report said this: “This has the potential to reduce homicide to a lottery: it is an invitation to jurors to dress up their prejudices as law”. We must remove the reality that our jurors had been given an invitation to dress up their prejudices as law with this defence, and I welcome its removal from our law books.

CHESTER BORROWS (National—Whanganui) Link to this

I am pleased to be able to take a call in respect of the Crimes (Provocation Repeal) Amendment Bill, because it is the timely removal of a partial defence of provocation, which no longer really has any applicability in our law. The reason it was initially installed within the law was that there was a death penalty, so it was a way that somebody who might have brought about what some would say was a justifiable or excusable homicide, to some degree, was able to be accommodated within the sentence, i.e. manslaughter, for killing another human being. Some years ago the Crown moved to take away, firstly, the death penalty, later on, mandatory life imprisonment for someone convicted of murder, and then the presumption of a 10-year sentence. This is the time for the defence of provocation to go.

We can imagine a scenario where a person we can all relate to—for instance, a parent coming on to a scene where his or her child has been assaulted or abused in some way—loses his or her rag, as some would say colloquially, and kills the offender. Some would argue that that should be excused in some way. I think that in this country we need to acknowledge homicide for what it is, the killing of one person by another, and murder as the intentional killing of one person by another. If someone kills somebody and intended to kill somebody, regardless of the circumstances there is a name for that offence, and it is called murder.

Allowing the sentencing judge to take account of provocation at the time of sentencing is the most appropriate course for the courts to be able to take in respect of that. We have seen, for instance, in the last couple of years a failed suicide pact. An elderly gentleman who had brought about the death of his wife, and had then failed in his attempt to kill himself, survived, was charged with murder, pleaded guilty because he quite rightly said to the court that he did intend to bring about the death of his wife, and was sentenced to a community-based sentence of home detention, because he was not seen as a threat to anybody else in the community, and nobody could argue that that was not the correct penalty and did not correctly fit the crime.

It is a shame that the legislation has taken so long to get here. The barriers to provocation, having been removed as a partial defence to murder, have been lifted for about 4 years now. It is unfortunate that the previous Government was distracted with a different agenda, but I am pleased to see that we have wide support from across the House for this legislation. I commend it to the House. It is timely that this now passes into law.

GRANT ROBERTSON (Labour—Wellington Central) Link to this

On the evening of 20 July 2003, 24-year-old Phillip Edwards was walking down K Road in central Auckland. A convertible driven by David McNee, aged 55, approached Edwards. After a discussion, Edwards agreed to perform a sexual act in front of Mr McNee for a fee. Edwards had just been released from prison and was in need of cash. Edwards then agreed to return with McNee to McNee’s home for a shower. While he was there, there was further low-level sexual activity. At some point during that activity, Edwards reacted violently towards Mr McNee and began beating him around the head and the face. He stated at the trial that he had become very angry, and that after the initial assault, everything became a blur. Edwards then covered McNee’s body with a blanket, robbed his home, and took his money, his alcohol, and his convertible. Pathologists reported to the court that McNee was struck between 30 and 40 times. The assault was so severe that McNee could have survived for only 15 minutes after Edwards had stopped.

I raised that story at the beginning of my speech to indicate that that is the kind of crime committed by somebody who is able to successfully invoke the partial defence of provocation. I raised the case in that detail to indicate the strength of feeling that reverberated around the gay community immediately after that case and immediately after other cases that have been discussed in earlier readings of the Crimes (Provocation Repeal) Amendment Bill. I raise that case today to give a real-life example as to why what Parliament will do today is a very important step and a very, very necessary step. People like David McNee, Ronald Brown, and Jim Curtis, who have been subject to successful defences by those who have committed assault or murder against them, need our respect and our thoughts today, as do their families.

I also pay some respect to everybody who has supported this bill’s passage through the House, particularly my colleague Lianne Dalziel, who spoke shortly before me. Lianne Dalziel and Charles Chauvel brought forward a private member’s bill to remove the partial defence of provocation. The Government has stepped up as well, and I congratulate Simon Power on having led that move. I also congratulate the select committee on bringing the bill back to the House today.

I will make one thing very clear. I have had a lot of contact with members of the public about this bill, and for the most part there has been widespread support for what Parliament is doing today. However, there are some people who feel that passing this bill is in some way a knee-jerk reaction to two very recent cases, those involving Sophie Elliott and Ronald Brown. I think it is very important to put on the record the fact that this issue has been discussed for some time. I do not want to put it on the record in a political way, as perhaps the previous speaker, Chester Borrows, did. The partial defence of provocation was considered by the Law Commission in 2001 and again in 2007. The move to implement the Law Commission’s recommendations is timely, but it is not a knee-jerk reaction. In my view, this defence is something that has been a stain on our law books for some time, and I think that reacting as a Parliament, as we are now, is quite considered in the circumstances.

I also make it absolutely clear that we need to consider the notion of a gay panic defence, and the fact that it somehow or other has been able to last on our statute book for some time, in the wider context in terms of society’s view about sexuality. I do not want to spend too much time on this topic, except to say that, particularly in the recent case of Ronald Brown, it is important that we think about the kind of defence that was mounted by the defence counsel. The defence counsel sought to portray Mr Brown’s lifestyle as a gay man as being somehow or other a “dark thing”. That was the phrase used—that it was a dark part of his life. I think that kind of rhetoric and language does not speak well for the views of some people in our community, and I hope that our being able to take the defence of provocation off the statute book and away from even being able to be considered in terms of a defence will start to address those sorts of views and issues. I think this is a very timely thing for us to do.

I will make reference to a couple of things that the Justice and Electoral Committee discussed when it was dealing with this bill. The first is the question around whether there should be any amendment to the Sentencing Act to explicitly allow for the consideration of the defence of provocation. The committee decided that that was not necessary at this stage, because these issues can be considered by judges under their existing statutory discretion. I certainly accept that people far more learned in the law than I am are able to bring forward that idea and that we should accept it.

I think we also should remember that the Law Commission had a second recommendation when it came to issues around this defence, within the concept of establishing the Sentencing Council to draft sentencing guidelines. Labour was looking into implementing the Sentencing Council towards the end of its term in Government, and I urge the National Government to consider it again. I think it would help to ensure consistency in sentencing whilst leaving flexibility for judges to depart from the guidelines where they believe that should be the case. I think that the National Government should look at having another investigation into that option.

When we look at community attitudes towards this matter, we see it is quite clear that the community supports this bill. We have seen a number of commentators come forward and make sure that we are all aware that essentially, as my colleague Charles Chauvel put it, we have to let people know that they simply cannot get away with murder. I think that is vitally important. As earlier speakers have already said, this is murder. As my colleague Lianne Dalziel said, we can look at situations in recent times, such as the trial for the murder of Sophie Elliot. The accused took the stand, and the abhorrence of the community grew as the victim was simply not able to defend herself. To see night after night on the news the pictures of somebody sitting in the dock and conveying that kind of attitude was something that the public of New Zealand found repugnant. I think it is important that the public was able to come to that decision by seeing that happen. But, equally, if we take ourselves back to the case of Ronald Brown, as Lianne Dalziel mentioned, we did not see the same reaction. Perhaps that was because Mr Ambach did not take the stand, but I also believe it speaks of some attitudes in our society that perhaps we, as a society, need to further address.

I am very pleased to stand in the second reading debate and support this bill. I believe that it marks a real advance for us in terms of attitudes towards victims and towards the families of victims, in making sure that we lift, in a sense, the debate we have in our community around how we treat people who are murdered and how we treat their families. As I come towards the end of my speech, it is probably timely to note the names of the people I mentioned before, and I will add a couple of other to them: Roy Jackson, Charles Aberhart, Ronald Anderson, Jim Curtis, Barry Hart, David McNee, and Ronald Brown. These people did not have the dignity of the law that should have surrounded them. They did not have the support of the law that should have surrounded them, and today this Parliament goes some way towards addressing the hurt and concern that they and their families felt. Thank you.

KANWALJIT SINGH BAKSHI (National) Link to this

I stand to support the Crimes (Provocation Repeal) Amendment Bill. The purpose of the bill is to repeal the partial defence of provocation. At a time when the Government is sending a strong message that people must find a way other than violence to manage their anger, it is inappropriate that anger be singled out as an overriding factor justifying conviction for manslaughter rather than murder.

Historically, the sole reason for the provocation defence was to avoid the mandatory murder penalty, effectively rewarding the person for his or her lack of self-control. Section 102 of the Sentencing Act 2002 now allows the presumption of life imprisonment to not be adopted on the grounds of manifest injustice. The historical rationale of section 169 of the Crimes Act 1961 has, therefore, been abolished. Juries have encountered difficulties in determining how an ordinary person would have acted when confronted with provocation at that level of gravity. The defence assumes that ordinary, reasonable people who are confronted with severe provocation will react with a homicidal loss of self-control, when, in fact, ordinary people do not.

The Government considers that the partial defence of provocation is fundamentally flawed. 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. The trial process, including the sentence, is often deeply traumatic for the families and friends of the victim. The distress caused to those close to the victim will generally reduce any defence argument, as the provocation issue is confined to sentencing. We believe that the risk that a jury will acquit altogether when confronted with an intentional but provoked killing is very low. Juries will still sometimes convict for manslaughter if an alternative defence such as lack of intent has been run, but they are not likely to let an offender walk free on the ground of sympathy alone.

The repeal of the partial defence of provocation for murder from the statute book is the preferred option. It is not proposed that provocation be 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 the life sentence is justified, he or she can 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. The repeal of 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 in the crime. The emphasis upon such factors in evidence results in significant amounts of distress for the families and friends of the victim.

In conclusion, I make the point that this is not a knee-jerk reaction to the recent Weatherston case. The matter has been on the Minster of Justice’s work programme for some time.

CHARLES CHAUVEL (Labour) Link to this

The Justice and Electoral Committee has recommended that the partial defence of provocation should be repealed, and that is a sentiment that has been echoed by the vast majority of the submitters on the Crimes (Provocation Repeal) Amendment Bill. It is also a position I have campaigned for since before my entry into this Parliament.

There was a handful of submitters who raised some concerns about repeal and supported the retention of the defence. I would just like to use some time in this call on the second reading debate as an opportunity to respond to those concerns, particularly as I understand that one party in this Parliament, the ACT Party, has decided to adopt the position of opposing repeal. No doubt, judging by Mr Hide’s presence in the House tonight, we will hear from him as to why—

PAUL QUINN (National) Link to this

I stand to support the Crimes (Provocation Repeal) Amendment Bill, but in doing so I register a note of caution in terms of comments that the previous speaker, Charles Chauvel, made about submissions from the Law Society and other law-associated organisations. He cast them off as mere contributions from a trade union, which, in itself, I find ironic.

I note that my two esteemed lawyer colleagues Simon Bridges and Chester Borrows sympathise with those comments, but I, as an ordinary, simple man, think that some caution has to be registered. In my view we cannot lightly dismiss the cautions and expressions of concern that the Law Society and various law-associated groups have expressed.

The commentary on the bill shows that the select committee members agreed that sufficient flexibility is provided by section 9 of the Sentencing Act. In reality that places a very heavy burden on a judge, and our system of justice is actually based on 12 ordinary people. I want those comments to be registered, and on that basis I am very happy, as part of this Government, to support the bill.

JACINDA ARDERN (Labour) Link to this

I am pleased to take a call and follow on from the very useful contributions of my colleagues. I will be taking only a reasonably short call at this stage, and perhaps during the Committee stage I will make more detailed comments on some of the discussions that took place at the Justice and Electoral Committee. As has already been pointed out, Labour is obviously supporting this bill, particularly given that it mirrors the bill that was put forward in the ballot by the Hon Lianne Dalziel.

I reiterate and concur with the comments made earlier by the chair of the select committee, Chester Borrows, about the historical justification for the defence of provocation and about that justification being one of the reasons why repeal can, in fact, be justified. But there are a couple of additional reasons, which I want to add into the debate. An additional reason for the removal of the provocation defence, which was discussed at the select committee, is that the evidence as to what allegedly incited a homicidal loss of control, which in effect is what the defence of provocation must demonstrate, is entirely in the hands of the victim, and in almost all the examples in which provocation has been used as a partial defence in past years, that witness—the victim—has, of course, been silenced for ever.

The second point, which I think is another very valid reason for the removal of the defence of provocation, is that there is already a place for provocation to be taken into consideration in the weighing of aggravating and mitigating factors as part of the sentencing exercise. Having said that, I note that there were suggestions during the select committee process as to whether there needed to be more explicit reference to that in the Sentencing Act 2002. The decision was made by the committee that that was not necessary, and that that discretion already existed in the Sentencing Act, although it was perhaps not set out quite as explicitly.

In fact, it was noted by the select committee that that discretion exists under section 102 of the Sentencing Act. It allows a judge to take into account the existence and degree of provocation-related considerations, together with any other relevant aggravating or mitigating factors, to determine whether a sentence of life imprisonment would be manifestly unjust. So we can see that discretion already exists at the point of sentencing, which is the appropriate point for it to be taken into consideration—at the point when it is considered by the judge.

There is, though, another issue that the committee spent a bit of time on, and that is the term “manifestly unjust” in relation to a term of life imprisonment. The term “manifestly unjust” is a high threshold, and I think in this case it is warranted, particularly given the message that we are sending today in this House about the kinds of defences that can be used when a murder charge is being heard. But “manifestly unjust” is a high threshold, and the select committee considered the way that cases and guidelines would develop around this threshold following the repeal of the defence of provocation. The select committee also reported back that “Following the abolition of the partial defence, we would expect the courts, over time, to develop judicial guidance as to how such factors should be taken into account when determining whether a sentence of life imprisonment would be manifestly unjust for an offender convicted of murder.”

That leads me on to the two final points I want to make. The idea of a Sentencing Council was raised many time by Labour members. It was established, and provision was made for it, by the previous Labour Government, but it has since been abolished by the National Government. I think that is a shame, because this debate has again demonstrated the very valid role that a sentencing guidelines council could play in the future. That is something I want to come back to later on in this debate.

One final view that I wish to share is a sentiment I share with my colleague Grant Robertson. We are very pleased that we are here today to remove this partial defence, and we all acknowledge that it is not a knee-jerk reaction to the Clayton Weatherston case. I believe that today we have been given plenty of examples with plentiful justifications as to why the House should have reacted in past years to some manifestly unjust cases that have involved members of the gay community. Two cases that have been raised are those of Ronald Brown and David McNee. I am glad that we as a House are making this decision to repeal this defence today. I am disappointed that it has taken us as long as this to get to this point, and I look forward to debating this further throughout the evening.

Hon RODNEY HIDE (Leader—ACT) Link to this

The ACT Party opposes this Parliament’s removing the defence of provocation with the Crimes (Provocation Repeal) Amendment Bill. When Parliament moves after a particular case to remove elements of our jurisprudence in our criminal code that have been there for many, many years and have stood the test of time, we should give it careful thought. Looking at just one or two cases where the provocation defence was attempted, and then from that drawing the general principle, seems to us in the ACT Party to be an unhelpful way of thinking about this issue.

The question Parliament is considering is whether a reasonable person could be provoked sufficiently to commit a murder or to kill someone in a way that we would not normally regard as a murder. I am a simple person, and that seems to me to be entirely reasonable. I can imagine—and I do not think Labour members can appreciate this—being provoked to do some truly terrible things. The case of poor Sophie Elliott has been spoken of. She was killed by Clayton Weatherston in a premeditated way with a knife. She was stabbed 216 times, cut with scissors, and disfigured. It was premeditated and she was brutally murdered. The country was rightfully horrified by this vicious and brutal attack on a young woman. We were mortified that Clayton Weatherston would attempt the defence of provocation. But does it follow that we should get rid of the defence, particularly when that defence was not successful?

I ask members to turn the situation on its head and to think of themselves as, maybe, a brother of Sophie. I ask members to think of themselves going into that room; hearing the murder of their loved sister, her screams, and her cries; getting into the room; and seeing her cut to bits on the floor and Clayton Weatherston standing there with a dripping knife. What would members of this Parliament do? We do not know, actually, what we would do.

SIMON BRIDGES (National—Tauranga) Link to this

I want to address the concerns of the Hon Rodney Hide. Before I do that, I want to talk about the practice of this. I want to make some practical points. I will not take my full time, but I want to make a practical point and then—