Crimes (Provocation Repeal) Amendment Bill

Hon PAULA BENNETT (Minister for Social Development and Employment) Link to this

I move, That the Crimes (Provocation Repeal) Amendment Bill be now read a third time. The purpose of this bill is to repeal the partial defence of provocation. Provocation is included in section 169 of the Crimes Act and states that a verdict of murder can be reduced to manslaughter if the offender can show that the crime was committed under provocation. Recent examples have illustrated the significant issues posed by this defence. Extensive consideration by the Law Commission and other bodies has emphasised the need for the defence to be abolished. It is with pride that I stand in support of the bill, on behalf of my party. I will defer to the chair of the Justice and Electoral Committee, Chester Borrows, who will contribute more fully to this debate on our behalf.

CHARLES CHAUVEL (Labour) Link to this

It is said that hard cases make bad law. Tonight we had a new maxim from the ACT Party—hypothetical stories spun for electoral rhetoric make for rotten politics. Let me recall three of the hard cases that illustrate the bad law that we have now. And unlike what we heard in the second reading from Mr Hide, and in the Committee stage from Mr Garrett, these are facts—not hypotheticals. These are the most recent cases in which the defence of provocation has succeeded.

In the case of the Crown and Ambach earlier this year, Ambach beat Mr Brown to death with a banjo and then with the weight from a dumbbell. Ambach ransacked the downstairs of Mr Brown’s home, whether before or after the beating is not clear. The police arrived and found Mr Brown unconscious on the stairs with very serious head injuries, including the bridge of the banjo rammed down his throat. While detained in a police cell, Ambach manipulated a cut to his finger and heavily smeared the walls of the cell and his face with the blood. Police officers in attendance thought his injuries to be serious, owing to the amount of blood, and took him to hospital. There, no injuries other than a cut to his finger were found.

In an interview the next day Ambach was calm and through an interpreter gave an account of the previous evening. Ambach said Mr Brown touched him on the thigh after he had been drinking with Mr Brown for a time. Ambach said that he indicated he was not interested in Mr Brown in that way and said he pushed Mr Brown’s hand away. Ambach said he then had another drink and that at some point Mr Brown went upstairs, turning the downstairs lights off. Ambach says that Mr Brown called him to come upstairs. He claimed that he wanted to leave but said he could not find the way out. Ambach claimed not to be able to remember anything after that. But later in his police interview he said he thought he went upstairs. In no clear sequence he remembered flashes, including Mr Brown chasing him round a table and Mr Brown throwing things at him. Ambach claims to have barricaded himself in and claimed to have no memory of how he hurt Mr Brown.

At trial Justice Winkelmann allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ambach was convicted not of murder, but of manslaughter, and sentenced to 8 years in prison. The sentence but not the verdict is under appeal, but as with the comments made by Lianne Dalziel and I throughout this debate, nothing I have said bears on the sentencing appeal.

The case of the Crown and Ali was one I mentioned in my first reading speech on this issue, so I will not repeat its revolting facts here. I will record, though, that on the facts that were similar to those I have just recited in respect of Ambach, at that trial Justice Williams allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ali was convicted of manslaughter and sentenced to 3 years’ imprisonment.

In the case of the Crown and Edwards, on the evening of 20 July 2003 Mr McNee was driving his car along Karangahape Road in Auckland. Edwards, in the company of two friends, noticed Mr McNee’s car. Edwards concluded that Mr McNee was looking for somebody to pick up. Having been released from prison 10 days earlier—he had some 50 previous convictions—he had no money so he jumped into the car when it stopped at the nearest traffic lights. Edwards said he concluded a bargain with Mr McNee to perform sexually in his presence for $120. Mr McNee said that his home was nearby and as Edwards needed a shower they went there. Following the shower, Edwards went into the main bedroom. According to him, after some sexual contact he got to his feet and started hitting Mr McNee with his fists. In court he admitted to striking Mr McNee between 30 and 40 times.

Edwards said he felt very angry and that everything afterwards became a blur, after the first few blows. When Edwards stopped beating Mr McNee, Mr McNee was on the floor and there was blood everywhere. Edwards then made off with items of Mr McNee’s property.

At trial Justice Frater allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Edwards was convicted of manslaughter and sentenced to 9 years’ imprisonment.

Each of the three cases over the past 6 years that I have outlined shares four very disturbing features. First, the account we are left with of the events in question is inevitably that of the killer. The killer goes out of his way to besmirch the character of the victim, portraying him as sexually predatory and therefore somehow deserving of the agonising death meted out to him. Grotesquely, the voice of the victim is silenced, and substituted for by the only surviving witness, the person who stabbed, beat, or otherwise brutalised him to death.

Secondly, aspects of the evidence indicate dishonesty on the part of the killer. Ambach’s and Edwards’ alleged blackouts, Ambach’s smearing of blood from a flesh wound to make it look as if he were wounded more severely, Ali and Edwards’ theft of their victims’ property after killing them, and Ali’s wiping of fingerprints from the crime scene and the selling of his victim’s property, are not the actions of people with a propensity to tell the truth. Their claims of blackouts during which they experienced uncontrolled rage, the essence of the provocation defence, just do not ring true.

Thirdly, horrific violence was inflicted in the killing. In Ambach’s case a banjo bridge was found rammed down the neck of his victim; in Ali’s case there was a stabbing five times; and in Edwards’ case there were 30 or 40 blows.

Fourthly, a High Court judge in each instance instructed a jury, letting each killer get away with murder by allowing a manslaughter verdict, in each case to a man who claimed to be the unwitting victim of sexual advance from another. Uncontrolled rage led to a reward: a lesser verdict, in circumstances where more controlled anger or violence would have seen the killer penalised with a more severe verdict.

The overwhelming majority of submitters to the Justice and Electoral Committee supported the abolition of this outdated and discredited defence. The Law Commission rightfully recommended its repeal. My colleague Lianne Dalziel rightly introduced a member’s bill to effect that repeal. I was glad to draft it for her. She rightly and graciously withdrew that appeal so that Simon Power could advance the Government’s decision to progress repeal, and I commend that decision in the House today.

It is wrong for the ACT Party, which masquerades as the liberal party and as a champion of victims’ rights, to be the only group in this House to oppose repeal. That is an insult to the victims of violent crime, but it shows that party’s true colours. It votes today to continue to sanction a defence that legitimises violence against gay men and against women. I say shame on it. Having heard David Garrett’s contribution during the Committee stage, I think Chris Carter is right. We understand the coded message being sent about which New Zealanders’ lives and votes are worth more than others in the ACT Party’s estimation. I congratulate the rest of the House on moving to take this Dickensian defence off the statute book by the end of this evening.

CHESTER BORROWS (National—Whanganui) Link to this

The Crimes (Provocation Repeal) Amendment Bill amends the Crimes Act 1961 to abolish the partial defence of provocation. 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 the death did so under provocation.” Section 170, an adjunct to section 169, would also be repealed by this bill.

It is fair to say that society has high expectations of the criminal law. We expect it to be efficient and effective, and, most important, to be fair: not just fair for defendants but fair for all participants, including the victims of crime and their families. There are times when we must look at the system with fresh eyes and ask whether the law is still serving the interests of those it was designed to protect. In this case, I think we all agree that the answer is no. The partial defence is notorious for allowing the defendant to tarnish the character of the victim at trial. In particular, it allows irrelevant factors such as the sexuality of the victim to be raised by defence counsel. This causes unnecessary distress to victims’ families and friends. Limiting any defence argument about provocation to the sentencing stage will greatly reduce the media scrutiny of a victim’s conduct.

Recently, the Government announced eight new initiatives to support the victims of serious crime. Four of those initiatives will provide further assistance to the families of homicide victims. I am pleased to add the repeal of the partial defence of provocation to the list of steps taken by this Government to improve the responsiveness of the criminal justice system to the needs of victims of crime and their families.

I am also confident that the repeal of provocation will strengthen, rather than dilute, the protection offered by the law to the victims of domestic violence. The defence is rarely relied upon by battered defendants and is more often used by the perpetrators of domestic violence to excuse their homicidal violence against a partner. In one example that I have been told of, provocation was successfully relied upon by a man who killed his partner after she broke a promise to him to not report a beating he had given her on the previous day. I can think of no clearer evidence that the partial defence of provocation allows the law to be used against those most in need of its protection.

The labelling of an intentional killing as something other than murder is inconsistent with the State’s obligation to protect the value of all human life. This is where I have a significant problem with the position of the ACT Party, because essentially it wants to have a different class of offender and a different class of victim. This comes from the party that protests that it is the party that argues for victims’ rights most of all. It says in one situation there is an excusable murder, and in another situation there is a murder that is not excusable, depending on the role or the circumstances of the victim. I find that to be completely abhorrent. I also find it to be inconsistent that the earlier speaker on this bill from the ACT Party, David Garrett, said that if provoked, for example, by a situation where he came across someone offending against his own child and he went on to take that person’s life, the member would be prepared to do the time for that. In fact, he said in his opening remarks that he would be prepared to kill for the sake of his child.

I say murder is murder. The intentional killing of one human being by another is murder. It is not manslaughter; it is nothing less than murder. We should be honest enough, in this fair and democratic society, to understand that and to expect to stand up and pay an account for doing exactly that. At a time when the Government is working to send the message that people must find ways to manage their anger other than through the use of violence, it is inappropriate that a defence that effectively rewards a homicidal loss of self-control should remain on our statute book. I commend this bill to the House.

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

I will begin my contribution to this debate by congratulating my colleague Charles Chauvel. He came to this Parliament already an advocate for repeal of the partial defence of provocation, and I know that he has worked tirelessly to see that law removed from our statute book. I pay tribute to him. He drafted the member’s bill that I had the privilege to have in my name for a short period of time, and I thank him and congratulate him on all that he has done.

I also acknowledge the Minister of Justice, the Hon Simon Power. He introduced the Crimes (Provocation Repeal) Amendment Bill at the point where we were able to have such a bill introduced. I think it is important to say that, because various members of this House have made the point that we are having this debate now because of the Sophie Elliot case and the Ronald Brown case. That is not the case. In fact, the member’s bill that Charles Chauvel drafted for me was ready for the ballot some weeks before those cases hit the headlines. The reason that we deferred putting it in the ballot was to ensure that our participating in a public debate on the defence of provocation could not potentially give a lawyer grounds for appeal. As soon as we knew that those two cases would be dealt with, we felt that it was important that the bill not be submitted to the ballot until an appropriate time. I felt that the Minister introduced this bill in a very timely fashion as soon as he was in a position to do so. I pay tribute to him as well.

I also pay tribute to the chairman of the Justice and Electoral Committee, Chester Borrows. I think he has presented an extremely compelling argument to this House throughout the whole of the debate on this bill. With his experience in the police force and in the legal profession, I think he has brought a very useful contribution to the debate, but I also think he should be congratulated on his personal knowledge and his understanding of the issues.

I do not normally do this—this sounds terrible—but I want to thank Simon Bridges as well. I thought he gave an incredibly sensitive and thoughtful speech, and Jacinda Ardern and I gave him big ups before. I want him to know that it was very moving. I thank him on behalf of all of those whose memories of their loved ones have been ruined, in may respects, by the people who murdered them claiming this defence. I thought he added a very, very powerful message tonight.

I will follow on from some of my colleagues and say that I regret that we could not speak with one voice in Parliament tonight. I think that would have been the best way that we could have offered something to the families of Sophie Elliot and Ronald Brown. I was asked during the Committee stage of this bill whether I had children. No, I do not have children. The reason I was asked whether I had children was not to question whether I would be prepared to die for my child; it was to question whether I would be prepared to kill for my child. Even though I do not have children, there are people whom I would die for, but, no, there is no one whom I would kill for, because I do not believe that it is my right to kill another, to intentionally take a person’s life from him or her.

As my colleague Chris Carter pointed out, the ACT Party has disgracefully employed a dog whistle technique in this House tonight. Those members use the hypothetical example of a father responding to a direct threat to a child—to a child being abused or attacked. That was the example we had given to us—a hypothetical case. Not one case in the litany of cases presented by two Law Commission reports—not one case—mirrors the hypothetical example. Why? Because not one such case would see a lawyer recommending pleading provocation; he or she would go for complete acquittal. That is the point I am making. The lawyer would argue that the father was incapable of forming intent. I ask members to tell me if they could find a jury that would convict a father in those circumstances.

This defence is not about those cases. This defence is about men who determine that the anger they feel about being approached by somebody of a different sexual orientation is grounds for them to take that person’s life, or that the subsequent behaviour of a former partner, former wife, or former girlfriend, even—their former partners’ choosing to be with somebody else, or not considering that their sexual prowess is up to it, as it were—somehow justifies their taking their former partners’ lives, and, often, the lives of the new men in their lives, as well. That was the example we had from Simon Bridges. That is what this defence has been used for, and no amount of sophistry from the ACT Party will change that.

The law change is not happening because of the Sophie Elliot case or the Ronald Brown case, but we would pay tribute to their memories by passing it unanimously. I believe that in this House we have a responsibility to keep our statute book up to date. This defence is past its use-by date. I commend this bill to the House.

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

Tēnā koe, Mr Deputy Speaker. Kia ora tātou katoa. I thank all of those who have contributed their kōrero tonight. I find it a bit strange to come back to the House today. I have been away all day at a tangi for a young man, Hāwea Vercoe, who was taken just a couple of days ago in Whakatāne. We are talking about provocation, and I do not know what provocation caused that young man’s death, but he lost his life at a very young age and leaves behind a young family. A couple of hundred people were at his marae today. It is a bit difficult to come back to the House and to think of him, and to also think of the stories that other members have provided as background information this afternoon and this evening. Nō reira, kia ora tātou katoa.

As others have said tonight, the aim of the Crimes (Provocation Repeal) Amendment Bill is to amend the Crimes Act in order to abolish the partial defence of provocation. I was thinking of how we would describe this concept in te reo rangatira, in te reo Māori. “Whakakārangirangi” is to provoke. Or we might refer to “te mura o te ahi”, the heat of passion. There are concepts that refer to an out-of-control state of being, like wairangi, which is the losing of all self-discipline—a state of mental disorder and chaos that leads to an offence.

In the language of the street, though, provocation is a term that is associated with the myth most commonly associated with the attitude that he or she asked for it. In other words, possibly the way that a woman looks, the clothes that she is wearing, the location that she is visiting, the activity that she is involved with, the time of the day when she is out, and the look in her eye are all, apparently, sometimes valid reasons for taking advantage of her. The Māori Party states categorically that no one asks to be raped, no one asks to be abused, and no one asks to be killed. Nothing—I repeat, nothing—that a victim does, says, or wears is any justification at all for an offence.

It is absolutely appropriate to be debating this bill on the day after White Ribbon Day, an international day of action on which we wear white ribbons to show that we do not condone violence towards women. In celebration of our families and our universal hope for their peace and safekeeping, we will today take out the partial defence that has been used for the ultimate violence, the violence of murder.

As other speakers have noted, provocation is a partial defence that, when successful, can reduce a charge of murder to manslaughter. In effect, that means in practice that the charge laid against an offender can be reduced from murder to manslaughter if the offender can prove that the circumstances were enough to deprive him or her of self-control, and that this induced the offender to commit murder.

We were particularly persuaded by the logic of the Human Rights Commission, which acknowledged that at the heart of the defence of provocation is the need to balance conflicting sets of human rights: the rights to life, to justice, and to a fair trial. The Human Rights Commission considers that the interests of victims’ families are of particular relevance, and that this bill protects and respects their dignity. We were also interested in the views of the National Collective of Independent Women’s Refuges. The collective stated unequivocally that it is unacceptable for this defence to be used by people who have struck out in anger. All that it does is to reward a lack of self-control by enabling an intentional killing to be characterised as something other than murder.

In the experience of the victims of family violence, they have not benefited from this defence, at all. Indeed, perversely, the defence has been used more often and more successfully by the perpetrators of family violence against their victims. We all know that reality, having observed the highly televised ordeal of the family, the whānau, who had to suffer the indignity of witnessing their loved one being subjected to a horrific trial in which the one who had incurred the greatest injustice was unable to take the stand in defence. Her voice had been silenced and her truth was unheard, while the offender had the luxury of the court of public opinion in which to put forward his version of events. I agree with Lianne Dalziel, who said that the media fascination cum obsession with recent trials was certainly bordering on disrespectfulness towards the families who have suffered the humiliation of hearing their loved ones being insulted and degraded by an offender’s defence.

In our consultation with Māori working in the law profession, we found that there was support for repealing the defence of provocation, provided that something is written into the Sentencing Act for judges to take account of provocation in sentencing and, in doing so, to have regard to an offender’s special characteristics when assessing whether that person was likely to have been provoked. We sought advice about the process by which we might make an amendment to the Sentencing Act 2002 to add the statement “and any special characteristics” when judges are considering circumstances such as provocation for sentencing after a conviction for murder has been given. It appears, however, that such an amendment is outside of the scope of this bill, and is, therefore, out of order and unable to be tabled. In effect, the bill is very narrowly focused; it simply repeals the provocation defence. To amend the Sentencing Act is to extend the scope of the bill, which is not possible under the Standing Orders.

Notwithstanding that advice, we suggest that the cultural characteristics of a person should be brought into account when making the assessment for a sentence. We are aware that some things that are not hugely offensive for the average person might be highly offensive for a particular offender because of their particular Māori, Islamic, or other cultural background. We recall that section 16 of the Criminal Justice Act 1985 allowed an offender’s supporter to present information at sentencing about an offender’s ethnic or cultural background, and about the way that it may have related to the offending and the way that it may help to avoid future offending, as well. It may well be useful to look again at the application of that provision.

I acknowledge the initiative taken by Lianne Dalziel—tēnā koe—Charles Chauvel, and Simon Power working together across the House on such an important change to the legislation. We in the Māori Party are proud to stand with the other parties and say that there is no excuse for violence. Whether it be the questioning of sexual performance, homosexual advances, the lifestyle, the clothes, or the way of being, there is no excuse for violence, and provocation most certainly is no excuse, not even as a partial defence for murder. The Māori Party is pleased to support this bill. Kia ora tātou.

DAVID GARRETT (ACT) Link to this

I stand as the representative of the only party opposing this bill, and I am happy to so.

PAUL QUINN (National) Link to this

I thank the National whip for allowing me to take a short call on the Crimes (Provocation Repeal) Amendment Bill, because I want to say a few words. I want to record that at the start of the process, notwithstanding that I was always going to support this bill simply on the basis that it is a Government bill, I had some personal reservations about it. Those reservations were particularly captured in the contribution of the leader of the ACT Party.

When I entered into the select committee process, I did so with some trepidation about my personal views and the fact that this was a Government bill. I am pleased to be able to stand here tonight and say that through the Justice and Electoral Committee and particularly because of the contribution and guidance of the chairman of that committee, Chester Borrows, and also David Parker, I was able to be persuaded, in a personal sense, to support this bill in its totality. A lot of my change of mind has been captured in this debate, but particularly in the poignant contribution of Chris Carter and also Lianne Dalziel’s final contribution. On that basis, I just wanted to say those few words. It gives me great personal pleasure to support this bill.

KEVIN HAGUE (Green) Link to this

One of the vagaries of urgency is that sometimes one is not in precisely the place one would like to be. It is with regret that I missed the second reading and Committee stage of the Crimes (Provocation Repeal) Amendment Bill. It was a huge privilege and pleasure for me to be able to stand in the first reading debate to make a contribution. I want to thank my colleague Paul Quinn for giving me the opportunity to collect my thoughts before standing here tonight.

Te Ururoa Flavell spoke in the third reading debate of the fact that this third reading comes just one day after White Ribbon Day. One of the things we do on White Ribbon Day is comment on, and take a stand against, a culture of violence in our society. Today we have an opportunity to do just that again. A culture of violence is one that we should oppose and we must do just that in this House today. I know also that my colleague Catherine Delahunty has spoken about a culture of homophobia. Members may recall that my first reading speech referred in the strongest possible terms to that culture and the requirement and duty upon all of us to take a stand against homophobia also. It is a great pleasure for me to note that this House chooses to do so on this day.

It sounds as if I have missed some great speeches, and to my colleagues who have made those I am sorry about that; I will read the Hansard and watch the tape with the greatest of interest. One of the interesting things for me about this issue is the culture change that has occurred. I spoke about that culture of violence and culture of homophobia, but I well recall that it was not so long ago that raising this issue would have met with the fiercest resistance. In listening to what I have heard of the debate tonight and the discussion around this law change in our wider community over the past few months, I draw a clear conclusion that there has been a sea change in culture on this issue. That is not only a sign of hope on this issue and in our capacity to challenge homophobia and violence, but it is also a wider sign of hope for other changes and for the possibility of holding out for important change even when it appears hopeless.

I started my first reading speech with a toll of those gay men who have lost their lives and whose assailants have been found not guilty of murder because of the reprehensible defence of provocation. Tonight I again pay tribute to the memory of those men. I also want to thank some members of the select committee and some other members of this House who have campaigned on this issue. In particular, I think of my colleagues and friends Lianne Dalziel and Charles Chauvel, who have led the way on this issue.

I also pay tribute and give thanks to other members of the select committee, in particular Chester Borrows. It was kind of him to allow me to participate in the select committee proceedings, and I found him to be an excellent and fair-minded chair, one who has justice in his heart. I also want to say thanks to the other members of the select committee, from all parties. I note in particular Simon Bridges’ contribution on the select committee, which I found to be really helpful, and I acknowledge Paul Quinn’s comments just now. I think the stories of those of us who have listened to arguments and changed our minds are great stories, and they are stories that should give hope to this House and to our nation. I also make what may seem a surprising acknowledgment of David Garrett. In the first reading debate I particularly appreciated the comments and the spirit that David showed in supporting the move to allow this to go to the select committee. I know that, even though he has spoke passionately in this debate about his opposition to the passage of this bill, he holds that view sincerely. I respect him for that, albeit I profoundly disagree with that view.

This bill removes one of the most loathsome provisions that stand in all of New Zealand law. It is a provision that provides for a charade in which the lives of gay men—and I unashamedly speak again about this one particular aspect of the law—are considered second-class and not worthy of the full protection of the law. It is a shameful law, and it is a credit to this House that we stand tonight in its repeal. Thank you.