Crimes (Provocation Repeal) Amendment Bill: First Reading

I move, that the Crimes (Provocation Repeal) Amendment Bill be now read a first time. 

This Bill proposes that the partial defence of provocation, which is provided in section 169 of the Crimes Act 1961, be abolished.

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 death did so under provocation.

The origins of the partial defence of provocation date back to the 16th Century. 

The historical rationale for the partial defence was to avoid the mandatory murder penalty, which at the time was the death penalty. 

Subsequently, the punishment for murder was mandatory life imprisonment, which was abolished by section 102 of the Sentencing Act 2002. 

The introduction of a discretionary sentence for murder, with a presumption of life imprisonment, has removed the historical rationale for provocation.

In its 2007 report The Partial Defence of Provocation, the Law Commission reviewed Auckland and Wellington prosecution murder files over a five-year period and found that provocation was raised in 15 of the 81 murder cases, but was only successful in four of those cases. 

Two of these successful cases were "homosexual advance" or "homosexual panic" cases. 

The Law Commission recommended abolition of the partial defence, echoing the view of various law reform bodies in this country for over three decades.

There has been considerable dissatisfaction with the operation of section 169. 

The Courts have encountered difficulties with the requirement that the unique characteristics of the accused may be taken into account, but that he or she is regarded as having the power of self-control of an "ordinary person". 

This has been given various interpretations by the courts over time. 

The current approach, as laid down by the Court of Appeal, allows the characteristics of the accused to be taken into account in determining how that person perceived the gravity of the provocation.

However, the jury is required to determine how the ordinary person would have acted when confronted with provocation at that level of perceived gravity.

As one Judge has stated "Most have seen the glazed look in the jurors' eyes" following instructions from the Bench in this regard. 

More fundamentally, the defence assumes that ordinary reasonable people, when confronted with severe provocation, will react with a homicidal loss of self control, when in fact ordinary people do not.

This 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.

When the Government is attempting to send the strong message that people must find ways other than violence to manage their anger, it is inappropriate and undesirable that anger be singled out as an overriding mitigating factor that justifies conviction for manslaughter rather than murder. 

Repeal of provocation will not preclude self-defence being raised in appropriate cases. 

If a person or someone else is under attack, they will be able to use reasonable force to repel the threat.

I am aware of the issues raised in support of the retention of the partial defence. 

Without outlining all the arguments for and against provocation, I note that this defence is rarely relied upon by battered victims, and is more likely to be used by perpetrators of domestic violence.

It is therefore more likely to work against the interests of battered women than in their favour. 

To address another objection, the mentally impaired are generally precluded from relying on provocation, as it requires that the accused have the power of self-control of the ordinary person.

I am also aware that not all who submitted to the Law Commission on its report supported abolition of the partial defence. 

Some, mainly in the defence bar, considered that it serves a useful and necessary function and that reform of section 169 would be preferable to repeal.

While the Government does not support that view, I encourage anyone who considers that there are good reasons for retaining the partial defence to make a submission to the Select Committee.

This Bill does not propose that provocation is considered as an express mitigating factor at sentencing. 

Rather the sentencing judge will be able to use his or her discretion under section 102 of the Sentencing Act 2002 to consider whether life imprisonment would be manifestly unjust given the particular circumstances of the case. 

Even if the court in a particular case determines that a life sentence is justified it will still need to 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 to be imposed.

While it is not apparent that the Sentencing Act will require amendment as a result of the abolition of provocation, the Government welcomes any submissions to the Justice and Electoral Committee on this issue. 

As recent cases have shown, the partial defence enables the accused to besmirch the character of the victim.

Someone who, needless to say, cannot defend their legacy.

Repeal of the partial defence would make factors such as the alleged sexual behaviour of the victim less relevant at the trial. 

The emphasis upon such factors in evidence creates a great deal of distress for the families and friends of the victim. 

This results in those close to the victim feeling as if the victim is on trial, rather than the accused.

While it is true that matters related to provocation may be relevant at sentencing, the nature of that process is such that the issue will not be canvassed before a jury with intense and prolonged media scrutiny. 

Sentencing generally only lasts for an hour or so.

Distress for family and friends will be greatly reduced.

This is not a knee-jerk reaction to recent cases - the issue has been extensively canvassed and has been on my work programme for some time.

But I am pleased to be in a position to do something about it.

I commend this Bill to the House.