Provocation: Geoffrey Palmer responds to Law Society
Predictably enough, the Law Society is lobbying for the partial defence of provocation to be retained. Or, more
precisely, some of its spokespeople are. I know for a fact that others may take a different view, making it debatable
that the Society can, in fact, speak as one voice on this issue.
In recommending the repeal of this partial defence, the Law Commission has considered every possible angle. Mr Krebs’
comments, reported in the New Zealand Herald on Friday, suggest that the Criminal Law Committee he convenes may not have
fully absorbed the issues. The needs of battered defendants were also invoked, inappropriately in my view. I am anxious
to respond. Hearts have prevailed over minds before in this long-running debate, and the interests of justice have not
been served by it.
The sole function of provocation, when successful, is to reduce a murder conviction to manslaughter. Historically, this
was because murder resulted in capital punishment, or more recently life imprisonment. The sentence for it was
mandatory, which was considered unjust in some cases. Since 2002, that is no longer true in New Zealand. The Sentencing
Act 2002 established discretionary sentencing for murder. If a murder has been prompted by provocation, or any other
mitigating motive, judges can sentence appropriately.
Mr Krebs is wrong in his assertion that provocation remains a partial defence in Australia. Australia is a federal
jurisdiction: every state has different laws. In both Tasmania and Victoria, which like New Zealand have discretionary
sentencing for murder, the defence has been abolished.
So, provocation can be repealed: its reason for existence has been legislated away. But should it be? Does it achieve
other desirable ends?
Certainly, an argument can made that the defence does achieve other desirable ends. In particular, some believe that
murder is the ultimate crime and, as such, juries should have a function in allocating the degree of blame, by deciding
whether a defendant will be convicted of murder or manslaughter.
This is not the forum to explore the merits of this view. Our published report does so, at some length. But in fact,
whatever its merits, it does not support Mr Krebs’ argument for the retention of provocation. If the proposition was
true, it would be true for the whole range of mitigating factors. Juries, by this reasoning, should be permitted to
decide upon them all – mental impairment short of insanity, depression, mercy killing – not merely provocation. In fact,
especially not provocation. The Supreme Court has acknowledged that provocation, almost universally, is used to defend
an angry response, which is the least deserving of all possible mitigating factors.
Any arguable advantages of the defence need also to be weighed against its palpable disadvantages. Provocation is widely
recognised as a troublesome and difficult area of the criminal law. Trial and appellate courts in every jurisdiction
have struggled with it. Eminent judges have described the defence as “plainly unsatisfactory”, “an all but impenetrable
and incomprehensible mess”, and “a blot on the criminal law”. They have said that it is “beyond reform by the courts”,
and “in need of early attention by Parliament”. Like the judges, New Zealand law reformers have been consistently
recommending abolition since 1976 – for over three decades.
Our terms of reference for this report specifically asked us to consider the interests of battered defendants. Indeed,
we had already considered this, when we recommended repeal on an earlier occasion (in 2001), but we duly considered it
again.
There is negligible evidence in New Zealand that battered defendants are benefiting from section 169, and some
considerable evidence in the literature that the defence is more often utilised by the same violent and jealous and
controlling husbands who are the perpetrators of battering. We reviewed all Auckland and Wellington Crown prosecution
murder files over a five-year period. We identified four cases out of a total sample of 81 in which the defence
succeeded. Only one of these defendants was a battered woman. The circumstances of her case were far from typical: the
defendant had experienced a long history of various forms of abuse, but she bludgeoned her husband to death with an axe
not out of fear and desperation in the face of grave personal risk, but immediately after he confirmed that he had
commenced a new relationship and would be leaving the family home. As such, the case is capable of being viewed as an
example of sexual jealousy. Had the perpetrator been a man, few would have attempted to defend his actions.
A further two cases – that is, half of the successful cases – were so-called “homosexual advance” or “homosexual panic”
cases.
Overall, we believe that there is a key point of principle at stake. New Zealand, as a society, should not continue to
partially excuse defendants whose angry resort to violence has caused the intentional death of another. New Zealand no
longer excuses an angry resort to violence in other legal contexts where the consequences are less extreme, such as
assaults and domestic disputes. That is not to say appropriate mitigating factors cannot be recognised in provocation
cases, by judges, on sentence, as they do for all other offending, and murders in any other context. But people who
choose to respond in this way should be accurately labelled as murderers.
ENDS