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So, provocation can be repealed: its reason for existence has been legislated away.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

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