Power Simon: Crimes (Provocation Repeal) Amendment Bill — First Reading 
Power Simon: Crimes (Provocation Repeal) Amendment Bill — First Reading 
[Volume:656;Page:5646] 
Hon SIMON POWER (Minister of Justice) 
: 
 I move  
That the Crimes (Provocation Repeal) Amendment Bill be now read a first time. 
 At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration that the committee report finally to the House on or before 19 October 2009 and that the committee have the authority to meet at any time while the House is sitting except during oral questions during any evening on a day on which there has been a sitting of the House and on a Friday in a week in which there has been a sitting of the House despite Standing Orders 187 and 190(1)(b) and (c). 
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. 
The Law Commission’s 2007 report  
The Partial Defence of Provocation 
 reviewed Auckland and Wellington prosecution murder files over a 5-year period and found that provocation was raised in 15 of the 81 murder cases but was successful in only four of those cases. Two of the successful cases were so-called 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 oddly he or she is to be 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 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 and I note that my colleagues across the House share the same view. 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 could be seen to justify conviction for manslaughter rather than murder. 
Importantly the repeal of provocation will not preclude self-defence from being raised in appropriate cases. If a person or someone else is under attack he or she will be able to use reasonable force to repel that threat. 
I am aware of the issues raised in support of retention of the partial defence. Without outlining all the arguments for and against provocation I want to note the advice I have received to this effect: this defence is rarely relied upon by battered victims and is more likely to be used by perpetrators of domestic violence. It is therefore—I am advised—more likely to work against the interests of in particular battered women than in their favour. To address another objection the mentally impaired are generally precluded from relying on provocation as it requires the accused to 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 submitters mainly from the defence Bar considered that it serves a useful and necessary function and that reform of section 169 would be preferable to repeal. Although 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 Justice and Electoral 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. Although 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. 
This partial defence enables the accused to besmirch the character of his or her victim. Needless to say the victim cannot defend his or her 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. Although 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 lasts only for an hour or so. Distress for family and friends will be greatly reduced. 
I conclude by making this point very clear: this bill is not a knee-jerk reaction to recent cases. The issue of provocation has been extensively canvassed at least over the life of the last two Governments and it has been on my work programme for some time. I am pleased to say to the House tonight that Parliament is now in a position to do something about it. I commend this bill to the House.