Last night Parliament abolished the partial defence of provocation.
I’ve posted both my second and third reading speeches on my website, but I thought that I would repost two particualar sections that sum up my sentiments:
…I believe that this bill is an important step towards a society where violence is condemned, where unremorseful killers are not given the opportunity to publically impugn their victims, and where the victims of crime can feel a little safer…
…Lastly, I want to remember those for whom this repeal comes too late. May they be the last to have their ordeals impugned in a court of law. Not one of their deaths is tolerable, and each of the victims whose killer has used the partial defence of provocation – successfully or not – stands as a silent witness to this reform…
I hope Charles that a battered wife who kills her husband will not suffer from this knee jerk reaction. Then we see-saw back to where we were yesterday.
I too think it’s a knee jerk reaction taken from the Weatherstone case and not from a detatched place. What will replace it? I hope something will replace it. I think this has been poorly done and it bad for our justice system.
I was a bit surprised that this news item was tagged on to the end of a lot of bulletins and that there was so little discourse on this site about it. I was even more surprised that it appears only ACT voted against this repeal.
I have to say, and I hope my membership isn’t cancelled for this, that I agree with ACT on this issue (to an extent). The point of this law was to allow the defendent (who after all is NOT GUILTY unitl proved otherwise) to make a case that there were exceptional circumstances that lead to the alleged crime. That case is then decided upon by a jury of the defendants peers. How is this a bad thing. The law clearly worked as, with the specific recent Weatherstone case, the jury did not believe the defence of provocation and found the defendant guilty of murder.
One of the worst things any country can do is engage in quick fix, knee jerk law making, its happening in the UK right now and as a result the UK police are having to digest and enforce roughly 2000 pages of NEW law each year (which they are struggling with). Lazy lawmaking (and the ETS is a prime example) comes back to bite you on the ass, end of story. I have to say, I believe that the defence of provocation, whilst unpalatable to some, was not lazy lawmaking as it put the power in the hands of ordinary New Zealanders (not judges or politicians). I believe the repeal is ‘lazy’ and ill concieved.
To cover the specific points you make Charles; I agree that we should condemn all violence, but we must also legislate for the world in which we live, not just the one we would like to live in. Sometimes violence will occur in society that society finds morally acceptable (the ethicists amongst us will no doubt pull out the tried and tested hypothetical situations). In terms of impugning the victims of violence, whilst I agree that this is a possibility with the defense of provocation (and that this is objectionable to the families of the victims), does your position not assume that all victims of violence are totally innocent of any wrong doing. Whilst this may be the case sometimes, it will not always be the case. In essence, life is not just black or white, its a bit of both, and the law SHOULD reflect that. Moreover, we must always assume that the defendant is guilty until proved otherwise, and whilst that may be difficult for the families of victims, it does protect all of us in society from wrongful incarceration.
Having a defence of provocation may well be the RIGHT thing to do, even if not the popular option.
Ooop, just notices a slight typo. That last paragraph should say that “we must always assume that the defendant is NOT guilty until proved otherwise”. Just thought I should make that clear before someone else picks it up and runs with it…
Yes!!! Thankyou!
And Charles please do not justify supporting this change on the unfortuante killings of 2 gay men in seperate instances. Unfortunate as the sad deaths were for me it still does not justify the exclusion of this defense.
Herodotus – clearly you know very little about the history of this defence. The provocation defence has been used, for years, to shield heterosexual men in murder cases for having murdered their wives/girlfriends or when they claim an unwanted sexual advance from a gay man – “she/he drove me to it”. Many, many people have literally gotten away with murder (a finding of manslaughter sticks in the throat for the families of those victims) while provocation has been in force. This isn’t just ‘unfortunately kilings of 2 gay men’. This has been a sustained attack against classes of people for a long, long time. I won’t name names but there is a literal roll call of victims here.
I am exceptionally proud of Labour for having championed this law change in the first place – and very pleased that Power saw the sense in this move. All in all this is a great day for justice and fairness.
@Chris R
I think if there is a “knee jerk” reaction it was to the less publicised recent case where the defendant was aquitted for saying he was provoked into bludgening a gay man to death because he had the “audacity” to make a pass at him…
Shame on the jury…
Sorry not aquitted, sentence reduced to manslaughter… Had a brain melt…
Sorry seond brain melt, found guilty of manslaughter… I’ll get it right one of these posts..!
Tigger – There is/was good reason for this cause of defense I just hope that we end up with Womens refugee or other such organisations later on crying out for legit reasons, that such a defense is valid. Unfortunately I think no matter which way we go there are going to be people who perhaps with public sympathy will suffer a double blow. Initially thier circumstances and then their response to the said circumstances.
Herodotus, I see time and time again you think ‘provocation’ was some sort of physical attack.
It wasnt.
These were so called ‘advances’, or ‘hurtful words’ that the victim was supposed to have said or did. With no supporting evidence other than the defendants say so.
The battered woman situation is more likely to be self defence which still can be a defence
OK then I will take my ignorance and sulk off. But improved with the increased understanding
Jeremy, I agree with you on the facts you present (I will admit that I do not know the details of the case you present – I was probably still in the UK). On the face of it, having a gay man make a pass at you would in no way be a suitible provocation for murder, and I would call that murder, not manslaughter. However, just because, on the basis of the facts here, the jury mada a mistake, that mistake was in line with our justice system and, dare I say it, a mistake in the right direction (and I say that with the caveat that you continue reading my reasoning before jumping to the reply section).
I would rather 10 individuals were found guilty of manslaughter instaed of murder, in error, than one individual was found guilty of murder in error. That is the whole basis of the justice system we have, innocent of the greater crime unless proved, beyond reasonable doubt, otherwise. Clearly in this case, the jury had a reasonable doubt. I would be looking at the prosecution team to hang their heads in shame, not the jury.
What’s important here is the principle, not the individual applications or situation, remember, all statues of Justice show her blindfolded). We will always find specific instances where laws seem unjust, but in principle, is it more or less just that an individual can make a defence of provocation, and let a jury decide their fate (and in response to Ghostwalker, yes, let the jury decide if ‘hurtful words’ or ‘advances’ are acceptable as provocation). I would say that this is more just than the alternative (in principle). However, I fear that the repeal has been motivated by specific cases, and not the principle, hence Justice has had her blindfold removed momentarily.
In any case, the debate is academic, the law is repealed, and in a spirit of collective responsibility, I accept that this is where the Labour caucus has gone on this issue, I just think this is a debate worth having.
Chris R , the law isnt some grand construct, its much more often made in response to specific cases. In fact amendments are always made to specific cases.
Do we not learn from the changed circumstances, ie a husband cant rape his wife would be seen now as outrageous yet once it was different.
As for manslaughter being seen as a much lesser charge, we should move to the situation of Murder 1,2,3 to reflect the different degrees of intent.
I like the 1 2 3 idea.
OK then, I can accept that critique of my perspective (although some would strongly argue that the law should be a grand construct), and like Spud, I do think that degrees of murder are something that would be beneficial in any justice system.
What else would we like to see in a justice system? I particularly like the Scottish “Not Proven” verdict. It allows a jury to say, hey, we have a doubt about your guilt, but we also think that you are not 100% innocent.
What else would people like to see in a NZ justice system, I’d be interested to see what people say?
Do you know what happens to not proven defendants?
I was disturbed earlier in the year by the suggestion that we could have non-unanimous guilty verdicts.
Spud, apparently there is a stigma attached to those that get’ not proven’ in major cases.
Since the Scots are the only ones to have this system I dont think anyone else will adopt it.
In some ways we already have a quasi 3rd verdict.
Guilty, Not guilty and ‘Innocent’ in that the judge stops the trial and directs the jury to acquit.
I think this has happened in a few rape trials
The result of a not proven verdict is the same as a not guilty, that being, you get acquitted. The difference is that, as a defendant, you can’t turn round after the trial and say, “I was found not guilty of that charge”. Essentially, your innocence on that charge is always in doubt.
Thanks.
@Chris R, I think the law was redundant and allowing an abuse…
No cases where someone has found someone abusing a child (etc) and then killed them have ever used the defence of provocation… Why would you..? When even the most incompetent lawyer would go for full aquittal in such a situation…
When a defence is being used to get sad losers off for killing their ex’s or straight guys for murdering gay guys we should remove it…
I think all the points made are valid and in most cases convincing. Perhaps the biggest issue some of us had here is that there was little of this debate previously (the last post I can find was from Lianne Dalziel in September and had 6 comments). I realise that ETS and ACC have been at the forefront of debate recently, and time is limited, a shame in this case I think.
It definitely deserved more debate. I still think that there are cases that would warrant a provocation defence.
The police and crown prosecutors are persuing an agenda of seeking the removal of motive from the equation of criminality. Politicians of all persuasions are easily swayed into this reductionist viewpoint by the promise of cheaper legal proceedings and a higher conviction rate.
The Crown vs Weatherston case, which has been used as a trojan horse for the removal of the defense of provocation, has in fact demonstrated that the defense of provocation was NOT an easy way out for a criminal. A defense counsel has the right to enter a not guilty plea and a duty to argue the case for the defense as best they can. The outcome is for the jury to decide. No-one can doubt that in this case the jury did their duty.
Motive is the very essence of criminality. To remove motive from the equation and to find guilt based solely on the forensics, a smoking gun and a dead body will lead incrementally to the obsolescence of trials by jury as no judgement call will need to be made. Another short step on the road to a bureaucratic and police state.
I believe that the Ellis Family were primed/groomed by the police and/or prosecution to bring, by their statements, the defense of provocation into disrepute. I believe they have been cynically manipulated by a bureaucratic elite who waited for the opportunity of an emotive case (pretty young woman killed by nerdy academic misfit) upon which to fly their flag.
When, at some future date, a battered woman kills her abusive partner and a jury is left with no option but to find her guilty of murder, then the chickens will surely come home to roost. Remember, the defense of self-defence is only valid as an immediate response to an actual physical attack (abuse can take many other forms). One wonders what would be the outcome. Either the woman is found guilty of murder with the mandatory sentence. Or the police or prosecution service refuse to prosecute the case for fear of the fallout from the outcome. Or the absurdity of a not guilty verdict followed a rash of copycat slayings. The proper outcome – a defense of provocation with a conviction for manslaughter and more or less leniency in the sentence according to the merits of the case – will not be an option.
Herein lies the thin end of the wedge. Repeal of section 59 (removal of the defense of reasonable force with regard to child discipline) was the thinnest end. This latest machination is the newest nail in the coffin of common sense. Coming up in the future will be the removal of the (already severely curtailed) defense of self-defence.
What silliness, any woman who has been abused by her partner and then kills him should be advised by her lawyer to pleed not guilty due to loss of facilities…
The right to self defence will never be removed, the section is slightly ambiguous and the Police often interpret it poorly but that is not something to be pinned on that section in as much as it should be worded more strongly…
“advised by her lawyer to pleed not guilty due to loss of facilities”
I presume you are are referring to loss of mental faculty. does that defense even exist in NZ? What English Law would refer to as “committed while the balance of his/her mind was disturbed”. I would have thought that if it did it would have been used by Weatherston’s defense counsel. If such a path existed the convicted felon could be detained “at Her Majesties Pleasure” (sorry to offend your republican sensibilities,JH,)In a secure psychiatric prison. If necessary for ever, or until it is determined he/she no longer poses a threat to society. It appears to me that NZ’s preferred option is to dump the nutters into ordinary prisons where they can murder other inmates and attack prison staff. God knows there are enough nutters in this country to warrant such a facility.
I agree with you on that Kev (while wondering how you know I’m a Republican), the loss of a comphrensive Mental Health System in NZ is an underlying, unpublicised national disgrace…
A few things, firstly, Weatherston took a knife to the murder and looked silly enough pleading provacation he would have looked utterly ridiculous pleading reduced capacity, temporarily insane, without facilities or whatever is available…
Secondly the murder and resulting manslaughter of a gay man recently was more of driver for the reform as far as I could tell from watching Parliament than the Elliot case…
Finally, as I said before the defence of provocation has not been used once in the 4 odd decades since the Crimes Act by a battered woman who has killed her husband however many men who have murdered gay men have been found guilty of manslaughter rather than murder by the availability of this defence, tell me, how many gay men should we allow to be murdered and their murderers unsuitably punished just in case a brave woman may need this defence..?
Provocation is gone because as a defence it was so open to abuse or misuse.
There is no need to replace it because the functional difference it made in the criminal law has gone, now that murder is punished the same as manslaughter. Provocation had just become irrelevant, yet the ability to use it abusively remained. All the more reason for it to go. Weatherston is a case where the jury had their heads on the right way, and the gay cases are where the juries were confused or prejudiced. Both are examples though where the defence of provocation was misused.
Thanks for the further info- I may have to rethink my diatribe. I still smell a rat though, every time I see the state tinkering with the law.
Oh come on, EVERY defence is open to misuse and abuse, but it’s still good to have them! I’d hate to see a person who was genuinely tormented and provoked by someone, to the point where they lost control, going to prison because that defence was no longer available to them. This is possible and something else now needs to be introduced to the law to balance things out.
@Kev – What about the government wanting to reduce the types of trials that are heard before juries, just so that they can speech things along? I think some law changes are to the detriment of our legal system and are made for the wrong reasons, i.e. to move through cases faster rather than to get the fairest outcome in cases.
With regards to the gay cases vs provocation in the sense of domestic violence, street brawls and so-on there is a huge difference. The disgust or revulsion that a homophobic or racist person feels in a certain situation is generated in their own mind more or less independently of the actions of the person “provoking” that emotion. i.e. it is a product of prejudice. Whereas in “true” provocation the provocateur is actively trying to cause fear or mental anguish in the provoked person. That should be the “legal test”. If the provocateur succeeds in provoking their victim to the extent that the victim reacts in an irrational way, even if the outcome is fatal, then that should be sufficient defence to allow the conviction to be reduced from murder to manslaughter.
The case of the murderer of the gay man being found guilty of manslaughter following the defense of provocation is clearly a miscarriage of justice and if the above test had been applied it ought not to have happened.
@mjwkiwi, I cannot accept that “now that murder is punished the same as manslaughter” therefore it makes no difference if a person is convicted of murder or manslaughter. A murderer is a murderer for the rest of their life, not just for the duration of their sentence. It is a lifelong stigma and for some people murder is an unforgivable sin.
@JH, I cannot agree that an abused woman should have no other option than to plead “not guilty by reason of loss of mental faculty”. This amounts to a nice way of admitting a susceptability to “temporary insanity” and pays no recognition to the fact that the abusive partner set out to cause fear, intimidation and mental anguish to the accused. The lawyer may advise it but it is merely a legally expedient construct that does not actually have to be true to be effective in court. I believe the defense of provocation allows the victim of abuse to come out of the situation without stigmatising opinions regarding their sanity. I think both options should exist for the defendant.
@Spud, “What about the government wanting to reduce the types of trials that are heard before juries, just so that they can speech things along?” I think it is possible that the thinking behind this is not just speeding things along, but also that their is so much rubbish and politically/economically motivated law coming onto the statutes these days that the govt are worried that jurors will rebel. Defendants will stand up in court and say “Yes I did it but I’m not guilty” and the jurors will say “good on ya mate” and find them not guilty. I’m talking about, for example, selling traditional medicinal herbs (Yarrow, Tansy, etc) at the farmer’s market and being prosecuted under some “theraputic goods act” for selling “Restricted Substances”.
I was going to blog separately but have decided to wrap up this thread. Charles and I have worked as a team on this issue right from the start. Charles came into Parliament already a seasoned campaigner for the reform of this law. For everyone who has linked this law change to the killing of Sophie Elliott and Ronald Brown, nothing could be further from the truth. There have been two Law Commission Reports -one that reviewed several defences, including provocation, and one that dealt specifically with provocation. The latter report in 2007 was very detailed and traversed in detail the cases where the plea had been entered – 15 times in 5 years – 4 successfully. The Law Commission was firm that the plea had no place in a society unless it wanted to reward murderous rage. They expressly recommended against a diminished responsibility concept being introduced as it would enable the jury to dress up its prejudices as law. The decision should reside in the sentence imposed by the judge not the jury – in this regard there has been discretion in the law since 2002 – provocation might have been appropriate when the sentence for murder was death or even life imprisonment, but now it is not. Labour had a preference for Sentencing Guidelines to assist judges however National has abandoned the Sentencing Council. The law was an anachronism and its use-by-date well past.
“The decision should reside in the sentence imposed by the judge not the jury” -and what makes you think that a judge that allowed, perhaps because of his own homophobia, a defense of provocation to be entered despite the fact that in no way could the situation be regarded as truly provocative as opposed to merely inciting revulsion in a prejudiced person- makes you think that this judge will not continue to exercise the very same prejudice in his sentencing?
The law has been debased by the removal of the mandatory life sentence for murder, now it has been further debased by this tinkering with permissible defense. the Law Commissions tone in its comments regarding “rewarding murderous rage” is emotional to say the least and now it seems that in the face of an intelligent debate that should have taken place a long time ago before this wretched bill went through parliament we are all being told to shut up!
Like so much of modern “democracy”, I dare say the whole thing was sewn up in the corridors of power before it even went to the chamber so no proper debate or committee proceedings have taken place, just a cross-party clamour to be seen to be closing a percieved loophole because a couple of senile judges have embarrassed the political establishment with their prejudice and ineptitude.
I agree, Kev, and even the fact that Weatherstone was the poster boy for this repeal is disgraceful.
I just spent half a day re-reading the Law Commission report. Notwithstanding my general objections to the law change, the following glaring omission sticks out like a sore thumb;
Recommendation of Law Commission
R2 The Sentencing Establishment Unit SHOULD DRAFT A GUIDELINE addressing departure
from section 102 of the Sentencing Act 2002 AS IT OUGHT TO OPERATE IF SECTION 169 OF THE CRIMES ACT 1969 (defense of provocation) WAS REPEALED. The guidance should cover not only the
relevance of provocation under section 102, but also the range of other mitigating
circumstances that might justify rebuttal of the presumption. PRIORITY SHOULD BE GIVEN TO THIS WORK, with a view to ensuring that a draft guideline is available IN TIME TO INFORM THE VIEWS OF THOSE CONSIDERING OUR RECOMENDATION for repeal.
So the Law Commission saw fit to place this second recommendation alongside that for the repeal of section 169 with sufficient gravity to use terms such as OUGHT and SHOULD, rather than “could” or “may” indicating that they see the sentencing guidelines as vital to the proper interpretation of the law as amended. BUT parliament saw fit to adopt the first recommendation without the second. Of course we can understand the National Party persuing this approach. They don’t like sentencing guidelines on principal as they wish the judiciary to have a free hand to dispense a different level of sentence to “their” class of people as opposed to “our” class of people. This surely would have been worth a fight over, even if it meant attempting to align with the apalling ACT party and the treacherous MAORI party and the despised GREENS. When will you get it into your heads that you are meant to be “Her Majesties Opposition” and it is your duty to OPPOSE. It rather negates your vehement advocacy for the Law Commissions report that you are only prepared to stick up for half of their recommendations. The public would in the end give you a lot more Kudos for engaging battle with the Nats than for hitching a ride on the populist bandwagon out of fear of not supporting this emotionally hyped law change . After all, the maximum sentence for manslaughter is life the same as for murder (apparently the stigma of being branded a murderer is of no consequence) so the whole issue has only been about not giving defendents the platform to say nasty things about their victims in court. Am I right?
@KevtheFarmer – Yay you read the report – you are now better informed than many others who comment on matters that are the subject of substantial research. I made it clear we preferred sentencing guidelines in line with the Law Commission Report. However I do not agree with your concern about judges sentencing vs juries verdicts. The former can be appealed, which is why straight repeal without guidelines (although not my preferred option) is far better than leaving this anachronism on the books. Juries prejudices cannot be appealed.
@spud – Weatherston is not the ‘poster boy’ (a vaguely offensive terms dealing with a narcissistic personality disorder) for the repeal.
@Lianne – yes he was, he was mentioned and still is mentioned in every news item and current affairs discussion about provocation.
I’m a wee bit informed, but I have work of my own to do so I don’t always go around doing research that I’m not paid to do.
@Kev – I agree with you, I’m so glad you’re on this thread.
@spud – Is that the politicians fault, especially when some like Lianne and Charles have worked on the issue for far longer than the justifiable anger and frustration over lliot’s death (not to limit the trauma of many others who have had to endure a trial where the defence was used)
If anything it only serves to demonstrates the near ubiquitous M.O of the media: shock and awe without letting the facts get in the way.
@Abbie’s Ghost – I never said it was the politicians’ fault and I know they have worked long and hard over this. But that doesn’t mean that I agree with the repeal, especially if it’s not replaced with anything. Dalziel said that Weatherstone wasn’t the poster boy for this repeal, and I was just saying why I thought he was. But I never meant to imply that he was the reason why her and Chauvel worked on repealing the defense.
This is the kind of misunderstanding that comes from communicating with text alone though.