Comments on: Provocation is gone

By: Spud

Spud — Mon, 30 Nov 2009 20:17:10 +0000

@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.

By: Abbie's Ghost

Abbie's Ghost — Mon, 30 Nov 2009 19:59:21 +0000

@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.

By: Spud

Spud — Mon, 30 Nov 2009 19:52:51 +0000

@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.

By: Lianne Dalziel

Lianne Dalziel — Mon, 30 Nov 2009 19:16:38 +0000

@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.

By: Kevthefarmer

Kevthefarmer — Mon, 30 Nov 2009 11:45:07 +0000

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?

By: Spud

Spud — Sun, 29 Nov 2009 22:58:52 +0000

I agree, Kev, and even the fact that Weatherstone was the poster boy for this repeal is disgraceful.

By: Kevthefarmer

Kevthefarmer — Sun, 29 Nov 2009 10:59:09 +0000

“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.

By: Lianne Dalziel

Lianne Dalziel — Sun, 29 Nov 2009 05:23:39 +0000

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.

By: Kevthefarmer

Kevthefarmer — Sun, 29 Nov 2009 03:38:27 +0000

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”.

By: Spud

Spud — Sat, 28 Nov 2009 19:23:42 +0000

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.