31 October 2007

Gordon Copeland MP
Parliament Buildings
WELLINGTON

Dear Mr Copeland

Your press release dated 30 October – “Provocation a justifiable defence”

Your press release earlier this week, in defence of provocation law, contained a number of inaccuracies. I am writing to correct those errors, and to briefly explain why the Law Commission is, as you put it, “pushing the issue”. A considerably fuller explanation can, of course, be located in our published report: The Partial Defence of Provocation (NZLC R98) www.lawcom.govt.nz .

Some of the errors to which I have referred are trivial; others are fundamental. To begin with the minor matters: according to your statement, “the Law Society says provocation has only been successful in four out of 81 cases over four years”; the statement subsequently refers to “a tiny number of successful defence cases using provocation – two battered woman [sic], and two men after unwelcome homosexual advances”. The statistics to which you refer are in fact drawn from our own case study, of all Auckland and Wellington murder files between 2001 and 2005: see further Appendix A of our report. This was thus a five-year period; it did not involve the Law Society; and there were four successful cases out of 81 in our sample (which, according to Ministry of Justice figures, comprised approximately 45 percent of the equivalent national total). As regards the nature of the successful cases, there was in fact only one battered woman, and two “homosexual advance” cases; the remaining defendant, Mr Simpson, killed his elderly terminally ill mother.

Your thinly disguised aspersions, to the effect that the Law Commission has been unnecessarily proactive and impetuous on this issue, are also incorrect. As President, it would not normally behove me to call attention to such matters, but on this occasion, I am pleased to be able to report that two differently constituted Law Commissions have considered this partial defence twice (in 2001 and 2007), and recommended its repeal on both occasions; furthermore, the publication of our latest report completes a reference that has been on our books for nearly four years. Furthermore, in the three decades that have elapsed since the Criminal Law Reform Committee first reported on this matter in 1976, four other NZ law reform bodies have independently arrived at the same conclusion. We are thus not alone in our views; nor are we acting suddenly.

Notwithstanding your views expressed to the contrary, provocation patently has not “worked in the past”. Our reasons for recommending the repeal of this archaic defence have very little to do with the small numbers relying on the defence, and the nature of the successful cases. They have a great deal to do with the trouble that it has caused trial and appellate courts, in every jurisdiction, and its redundancy in a legal environment that includes discretionary sentencing for murder. Furthermore, history demonstrates the impossibility of attempting to reform it.

Finally, I note that you may find yourself in a minority with your assertion that there is “no need for change”. Clearly, not everyone supports repeal. The criminal defence bar, in particular, is strongly opposed to this remedy. However, virtually everyone, including the defence bar, agrees that reform of some sort is required.

Yours sincerely

Geoffrey Palmer
President

ENDS

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