I have drafted a bill for my colleague Lianne Dalziel, Labour’s Justice Spokesperson, which in line with the Law Commission’s recommendations would remove the partial defence of provocation from the Crimes Act 1961.
The defence is sometimes wrongly referred to as the “Gay Panic Defence”. Provocation is a partial defence to murder contained in section 169 of the Crimes Act 1961. When it is pleaded successfully, it reduces a murder charge to a manslaughter conviction.
There must be some – but need not be much – evidence of provocation before a judge lets a jury consider whether it should be available as a defence. The threshold test that the judge has to apply is extremely and unacceptably low. It therefore needs to be raised so that a crazed reaction to a mere advance, taunt or affectionate touching is never enough to let a killer escape a murder conviction.
If someone is on the receiving end of an unwanted advance or a taunt then they should just walk away. If an advance is accompanied by physical pressure or contact, then reasonable – but never deadly – force to repel the pressure should be the absolute maximum allowed by the law.
There is ample room for the judge to consider provocation as a mitigating factor during sentencing without murder being reduced to manslaughter on the flimsiest of evidence.
I have attached the bill and am keen for feedback on it here
PS: David Farrar also has a good post on Kiwiblog here.
I have attached the bill and am keen for feedback on it.
Where?
The bill is attached now.
Excellent! Just what we need to get rid of an out of date and out of touch piece of legislation. It brings us in line with other comparable countries. Great work!
I think it is time the partial defence goes. I suspect the widespread revulsion at the Weatherston defence may help move public opinion on this issue.
My only hesitation is the minimum non parole period of ten years with murder combined with a no provocation defence could result in too harsh a sentence for someone who (for example) kills someone who raped them.
Is the solution that they still get found guilty of murder but give Judges some discretion with the minimum non parole period?
Excellent work.
In my view, as a semi-lay-person, the defense of absence of mens rea should be sufficient. To have provocation explicitly as a defence – even though it refers to provocation to the extent that it renders the person incapable of reason – is abhorrent.
Provocation may play a part in rendering a person incapable of forming intent to kill, but it should not be an explicit defence.
To my mind, the abhorrence of the provocation defence is that the deceased is the one on trial for provocation, and they cannot answer back. If the accused has accepted the fact of killing, it then becomes a question of proving intent. As with the basic tenet of innocence until proven guilty, it is still up to the State to prove intent, and it is encumbent upon the accused to offer evidence of lack of intent.
The allowance of provocation defence simply enforces the view that people do not need to be accountable for their own actions.
However, in the recent cases where provocation has been used as a defence, it is still an option for the judge to impose a heavy sentence equivalent to that of murder, as allowed in Statute. The danger there is that it is likely to be overturned at Appeal.
more legislation based on identity politics.don’t you guys ever learn?
Time to change the jury system also?
David, would killing someone who was raping you perhaps be considered self-defence?
I am pleased to see someone taking this seriously, Charles. It was a travesty Mark Burton and the Labour-led government you were part of did not pick up on the Law Commission’s recommendations to dispense with this in 2007.
The Law Comm canvassed the topic widely and got good feedback from groups such as women’s groups and mental health (the groups you’d think would be interested in provocation as a defence). Much of the feedback supported abolition.
Hopefully, Farrar can try and pressure some of his parliamentary colleagues to support a bi-partisan initiative. Perhaps the Attorney General can lend some support too.
While you’re right this is not strictly the “homosexual panic” clause – let’s be honest – that’s pretty much how it has been used. It’s a tragedy the punishment for brutally killing gay men has been lightened through the (mis)use of this defence.
Idiot/Savant deserves much praise for keeping this on the political radar.
There are several questions DPF and others have asked that it would good if you answered Charles. This issue should be easy for everyone to agree to.
Jarbury + DPF:
Its unlikely you could rely on provocation to get off killing someone who raped you. Unless, you could show that being raped was a characteristic that you held that would cause you to lose the ordinary power of self control. Prima Facie we’d all expect rape to fit here – but it doesn’t really.
Its much more likely that Self Defence would apply (definitely before or during the rape, or immediately after if the threat was still imminent).
But we done need provocation anyway – DPF in your scenario there is room under the sentencing act to mitigate sentences in circumstances like the one you mentioned. Im not 100% which wins out, the minimum parole period, or the judges discretion under the sentencing act. But i presume its the sentencing act.
Perhaps its helpful to look at it this way. If someone is raped, then goes home, collects a knife, comes back and murders someone – should we allow them to use manslaughter as a defence? I so no. There was clearly murderous intent.
Where there is a question of mental instability, which could arise from some traumatic event such as a rape – we have the defence of sane automatism. Which could be applicable (and is an actual defence, it gets you off completely).
DPF:
There is (albeit) limited discretion already not to impose the minimum non-parole period.
Section 102 of the Sentencing Act 2002 provides:
“102 Presumption in favour of life imprisonment for murder
(1) 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.”
The proviso might allow a sentence of less than 10 years to be imposed for murder resulting from a seriously provocative act. That is, a provocative act may qualify as “the circumstances of the offence”. The threshold of “manifestly unjust” is pretty high though and, I suspect, only seriously provocative events will qualify.
At the end of the day, the proviso gives judges discretion to determine, within the legislative direction, when a reduced sentence is justified. Unlike juries, they will be accountable for the judgement. First, they need to give reasons for their decision. Secondly, they will be subject to review on appeal.
I am happy to answer the answer the questions but at the same time encourage you all to read the Law Commission Report, which can be found at: http://www.lawcom.govt.nz/ProjectReport.aspx?ProjectID=138
Under the Sentencing Act it is no longer mandatory to sentence an offender who is convicted of murder to life imprisonment – there is a presumption in favour of life unless “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”. If a a court does not impose a life sentence, it must give written reasons for not doing so. The requirement to impose a minimum non parole period of 10 years only arises where a life sentence has been imposed – so that’s the answer to your question David.
And the person who asked why it wasn’t advanced by the former government, that is solely because this issue was linked to our proposal to introduce a Sentencing Council and sentencing guidelines – also proposed by the Law Commission and scrapped by the incoming National government. If you read Chapter 6 of the report you will find the Law Commission proposed that a draft guideline be drafted for consultation so people could see how the presumption in favour of a life sentence could be departed from in the absence of the partial defence.
Thank you all for your interest in this important issue. Charles and I will have a lot more to say about this publicly once the current cases are concluded.
Wouldn’t your bill also remove provacation such as molestation or rape as a defense. Maybe we should see what the sentence is before deciding the law is not working.
Kerry,
Tevita Noa beat his wife to death with a cricket bat and was sentenced to only 6 years and nine months after using the fact he found explicit txt messages and images on her cellphone as “provocation” which reduced the crime from murder to manslaughter.
Amsheen Arif Ali stabbed to death a gay man who made a sexual advances toward him. He called the homosexual advances “provocation” and was found guilty of only manslaughter and sentenced to only three years.
I could continue the list, does that answer your questions about sentencing?
WRT rape and molestation, as I said somewhere else:
Anita – Exactly! Self defence and provocation are fundamentally different.
There’s a typo:
The title of the bill is inconsistent from the title of the Act, as detailed in clause 1: it should be “Crimes (Abolition…”, not “Crime (Abolition…”.
I’m also not a fan of placing explanation directly in the text of the bill – I’d delete the bits in the brackets in clauses 5 and 6. Explanation can go in the explanatory note and the clause by clause analysis. I realise that they appear in the Law Commission’s draft, but:
1. That doesn’t mean it’s a good idea; and
2. They at least make grammatical sense in the Law Commission’s draft bill; because you’ve changed the structure, they don’t make grammatical sense in your draft (to do so, they’d need to appear directly after the section references, not following the words “is repealed”.)
Thank you Graeme – I missed the typo too – what an eagle eye you have. I will discuss Clauses 5 & 6 with Charles. It could be resolved by giving them headings or reverting to the Law Commission draft with a single clause referring to the two sections of the principal Act being repealed. I think I might expand the Explanatory Note to include some reference to the substantive issues that have been raised in this discussion thread – particularly in relation to sentencing – and also the many examples of the cases where the defence has been successfully pleaded and the inconsistency in sentencing that produces anyway. (Thanks for your comments Anita.) I was doing my law degree when Dr David Minnitt killed his wife, Leigh Minnitt, and not only served a short time in prison for manslaughter (described in one article I recall as “man’s-laughter”) but returned to practise as a general practitioner. The time for change has come and I am sure the Parliament will respond positively.
Is it true that Power is trying to say getting rid of provocation is his idea?
It depends on what you thin the job of the law is but it seems to be that if you have a person who is being provoked in an extreme sense (one that any reasonable pannel of judges or a reasonable jury would recognise) and a person who committed murder without any meaningful provocation, that the latter individual is much more dangerous to society, much more likely to reoffend and in a sense more ‘responsible’ for the event.
Ie that the logic behind the defense is good even if the application is wrong. All you achieve by putting the former in jail for a longer period of time is the same thing you achieve by canceling parole for offenders who appear to have been rehabilitated.
Also the change in name of the title of the crime may (if appropriate) reduce a stigma just enough to be appropriate.
I do however agree that some of the usage of this law looks like a ridiculous waste of time at best and a perversion of our justice system at worst. I just imagine tightening up the law so that more of these arguments get kicked out as not meeting the standard of a defence worth going to trial over.
GNZ,
Can you give an example situation where someone is provoked into killing (and where a self defence defence would not be available) where you would consider that the killing should not be considered murder?
The existing sentencing rules around parole periods for murder allow judges to differentiate sentences based on how dangerous the murderer appears to be and/or how terrible the murder is. s169 means a provoked culpable homicide is considered to be not murder, it is not required to allow judges discretion in sentencing.
There are aspects of the defence that are not working as they should, for example (and with no detailed knowledge of the Banjo-bashing-tourist case) I agree that the extent to which it is (successfully!) employed in circumstances involving homosexual advances is disgusting and unjust. Do we think a woman who killed a man after a lude advance would get away with saying she was provoked?
The point has already been made – which is that as a partial defence provocation is fundamentally different to self-defence. I think it is right, in principle, that our legal system recognises that culpable homicide in different circumstances is not worthy of the stigma of a “murder” conviction, nor the same period of incarceration that such a conviction entails.
However, this kind of populist/reactive politics is the pits. It is not an issue that Labour are going to find any differentiation from National on because National will take exactly the same stand.
As distasteful as we may find cases currently in the media spotlight (i.e. Weatherston) this should be a platform for informed public debate, not one for hasty legislative decision-making based off raw emotion.
mjwkiwi, Simon Power was reported on Prime news last night saying that it had been on his radar for a long time and he was preparing a cabinet paper. We all know Charles Chauvel and Lianne Dalziel are behind this bill but to have it adopted as a govt bill would speed matters up and not rely on the ballot.
When I studied Criminal Law as part of my law degree, self defence and provocation were the topics that sparked the most debate. IMO the problem with provocation is the low threshold of evidence needed to invoke this defence, as in the two cases going through the trial process at present.
There is ample room in the defence of self defence and in the mitigating factors a sentencing judge can take into account to cover provocation as pointed out in several comments.
Very interesting topic and good discussion.
Tim Gray,
This is not reactive, the Law Commission started working on it in 2004 and recommended repeal in 2007. The fact it’s taken a couple of high profile cases to get the media to care is frustrating, but many people have cared for a long time and three years of Law Commission thought and consultation is hardly populist or reactive.
On reading this thread I’m struck by how the difference between self-defense and provocation is being framed.
Many years ago I recall a very well-know QC being interviewed on his retirement (Bungay I think). In his experience he thought about 85% of unlawful killings were committed by ordinary people caught up in extra-ordinary circumstances, circumstances that lef them to commit an awful act that they would never have imagined themselves committing. He then went on to contrast these cases with a minority of killings committed for pecuniary, political reasons, acts of especial criminal brutality, cruelty or callousness; the killing of Police, witnesses, creditors and the like.
In this way he developed his case for a ‘degrees of murder’ structure to give the system more appropriate flexibility.
In the heat of a violent/emotional crisis, no-one is thinking clearly, much less cogitating clearly about fine distinctions between self-defence and legitimate provocation. While everyone here would happily argue for the right of someone to fight off a rapist, what if moments later in a fit of rage the would-be attacker was pushed over a balcony to their death?
Very interesting comments above, but as an ordinary lay person, I really don’t understand the exact differences between manslaughter, culpable homicide and murder.(Are there other categories, like ‘Reckless use of a motor vehicle resulting in death?) Maybe this is where the root of the problem lies; that our existing system DOES account for degrees of unlawful killing taking into account self-defense, provocation, intent and means…. but does so in built on very dated, obsolete and opaque legal foundations.
Interestingly enough, when Brian Neeson’s Degrees of Murder Bill was ballot-drawn about 15 years ago, the strongest opposition to it came from the NZ Police for reasons lost in the mists of time.
[...] Ever the enemy of due process, the Labour Party is also calling for the abolition of the provocation defence. [...]
[...] Ever the enemy of due process, the Labour Party is also calling for the abolition of the provocation defence. [...]
@the above two comments
An example is being used in these articles of a man taunting a woman about past molestation, where the woman snaps and murders him. Obviously the author could not/was too lazy to find a real example of this being used in a court. The fact of the matter is that the defence of provocation has OVERWHELMINGLY been used to reduce the charges against brutal murderers from murder to manslaughter.
It is not an overreaction, it is an overdue necessity for fair and equal justice in New Zealand.
Get on with repealing it, asap, for the sake of all the poor people who’ve been slaughtered and their killers have got away with manslaughter because of it, e.g. the banjo case.
I dont think it should be removed theres a reason it is there say for example someone attacks rapes and kills your child and you lose control at the sight of the perpetrator and commit murder you should be able to get manslaughter if the provacation is worthy of the reaction the jurors should be able to decide. In the weatherston case stabbing a woman 216 times for god knows what is not a justified reaction… thats why hes in jail for murder. Getting rid of a law just because that tosser tried to use it as a defence is no reason to get rid of a law.