Section 69 of the Crimes Act says culpable homicide that might otherwise be murder may be reduced to manslaughter "if the person who caused the death did so under provocation".
It is an archaic part of the law that unconscionably turns the victims of society's most serious crime into victims for a second time as their reputations are sullied by the people who killed them.
The leader writer then lauds Justice Minister Simon Power for going where Labour was not bold enough to go after the latest Law Commission recommendation of two years ago:
So it is good news that Justice Minister Simon Power will reform this part of the law, something Labour failed to do two years ago. The minister says: "I do not believe this defence has any place on the statute books. It wrongly enables defendants to besmirch the character of victims and effectively rewards a lack of self-control."
Mr Power must be careful: he risks becoming the new century's Ralph Hanan, a reforming National justice minister who, with a far-sighted justice secretary, modernised much criminal procedure in the 1960s. The jury is still out on that. But Mr Power is showing considerable political courage in a sphere imbued with tradition and expense.
Inevitably, there will be claims that Power is reacting to the saturation coverage of the Weatherston murder trial. That's probably, in our humble and considered opinion, a reflection of our cynicism towards politicians of all hues. But we agree totally with the writer's criticism of the former government, which was twice advised that a law change should be considered. On the second occasion, there wasn't even a Cabinet paper prepared.
It was galling to see Liane Dalziel try to introduce a Member's Bill yesterday, and we were delighted that the Government refused leave. Dalziel and her colleague Charles Chauvel had nine years to propose a law change when Labour was in government. We believe that it is entirely appropriate that the Government drives this small but important law change, not yesterday's people.
13 comments:
Just an idle thought I2, but removal of the provocation defence won't stop the name of the dead being brought into question in a mrder trial.
Poor old Robin Bain springs to mind immediately.
"I do not believe this defence has any place on the statute books. It wrongly enables defendants to besmirch the character of victims and effectively rewards a lack of self-control."
The judge allowed that, not the law.
I applaud Power for this leadership. I feel strongly that as a society we must reduce any propensity to violence particularly where that violence leads to serious harm or death. I know nearly everyone wants to pull the plug on the piece of excrement who ended the valuable life of Ms Elliot but capital punishment only gains a measure of revenge and perpetrates the myth that killing is at times justified. I wish for a society that always holds to the value of life with the only exception where the defense of self,society or another be cause for extreme sanction.
"I feel strongly that as a society we must reduce any propensity to violence particularly where that violence leads to serious harm or death.
How do you feel about repealing self defence laws?
He Was Asking For It, perhaps do comprehension 101 and then read the last sentence
Well muz, how about contradiction 101 for you, then?
Tell me how repeal of a provocation law doesn't undermine self defence.
and how "...defense of self,society or another be cause for extreme sanction..."
isn't exactly what provocation law supports.
The two are inextricably linked.
Alex - yes, good point about Robin Bain. But given the defence mounted by Bain's team, perhaps Robin Bain should have been entitled to some form of legal representation.
He was asking.. - there's a degree of crossover between self-defence and provocation. Using the Weatherston case as an example, had Lesley Elliott killed Weatherston before he could kill Sophie (and her) that would be a clear case of self-defence. But had she come in and shot him AFTER he killed Sophie, self-defence would not apply. If provocation was restricted to a mitigating circumstance at sentencing, Mrs Elliott's lawyers would then be able to argue for a discharge without conviction at sentencing, even if a jury found her guilty of murder.
Would that work? What do our "legal eagles" say?
HWAFI I am happy to allow my fellow citizens to judge that and not have someone who stabs a victim 216 times or a fit young man batter then choke a sad old man and claim provocation as a defense of murder.Both those perps could have walked away from the situation and not have resorted to the extreme action they elected to take.
The Dom Post editorial demonstrates why reporters should not comment on jurisprudence.
"it is an archaic part of the law" have you read the law? do you know where most of it comes from and how old it is? Self-defence and concepts of the presumption of innocence are even more archaic, is their age a reason to dump them?
Further, every defence for a crime against a person potentially enables the victim to be wrongly smeared and besmirched. Weatherston could have plead not-guilty and spent hours on the stand attempting to sully the reputations of eye-witnesses along with the victim. Again, this is not a reason to throw out a defence.
The claim it rewards lack of self-control is equally flawed. Provocation does not get someone off having to face the consequences of their actions, manslaughter is a serious conviction and a serious label to carry for life. What provocation does is recognise those situations where killing is understandable but not excusable.
As I argue on my own blog, the only way you can ensure that no family has to sit in the court room and hear the reputation of the victim, someone they love, being besmirched and smeared by the accused's desperate attempts to escape consequences or warranted attempts to justify their actions (as the case may be) is if we end trials and just convict everyone who gets accused.
If you want there to be a concept of due process, of a presumption of innocence of a right to a fair trial for people to have a chance to explain themselves to the court then victim smearing is the price we pay. Putting provocation up as the fall-guy is wrong.
Further, it is the exact same, identical crappy argument trotted out by the anti-smacking brigade. Child abusers should not be allowed to try to justify their actions, we need to get rid of the defence so they can't. I do not understand how people can see its error when Sue Bradford says it but they cannot see it here?
All actions to remove the defence of provocation are to be commended.
If Simom Power is serious about abolishing provocation, he could have sped up the process yesterday by giving leave for Lianne Dalziel to introduce the bill. This is an issue which will gain good cross party support
The person spearheading the abolition of the partial defence of provocation is Charles Chauvel. Mr Chauvel has been in parliament for two and a half years. The only reason the bill is under Lianne Dalziel's name is bacause MPs are only allowed one bill in the members' ballot at a time. The bill has been written by Mr Chauvel.
Like Mr Power, the Dom Post has has chosen not to give credit where credit is due. All the other major newspapers have been honest in their reporting.
Check out Kiwiblog: you get better reporting there.
I disagree Orange. As I said in the substantive post, Labour had its opportunity to drive through this law change. It wasn't interested then. It is entirely appropriate that this be a government bill, and it will progress faster as a result.
Your blog is great.
A provocation test, also called a provocation trial or provocation study, is a form of clinical trial whereby participants are exposed,
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