Garrett David: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Garrett David: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8272. Text is incorporated into the Bound Volume.] 
DAVID GARRETT (ACT) 
: 
 I stand as the representative of the only party opposing this bill and I am happy to so. 
Hon Lianne Dalziel 
: Shame! 
DAVID GARRETT 
: Well that party is shameful for attacking me personally and questioning my motives and my commitment to victims. I will leave others to judge that. 
The irony of today is that I was a great believer in majoritarian democracy which basically means that the majority and certainly the vast majority knows best. In deciding what ACT members were going to do with regard to this bill I read widely. I looked at a quote from Benjamin Franklin. He said this about democracy: “Democracy is a vote between a two wolves and a lamb about what to have for dinner.” I am quite happy to be the contrarian here and say that what the majority might think on this occasion or any other might not necessarily be correct. We have seen in recent days amusingly for ACT members that the contrarian mentality—some would say the denier mentality—about global warming might just be right. So we will see. 
As I said in my first reading speech and in my speech during the Committee stage it is easy to hold up Clayton Weatherston’s case as an example of all that is bad in the justice system. As I said a few minutes ago the central point is that the defence failed. The jury saw him for the scumbag that he is. This bill does not entirely remove the power to determine provocation. There have been some disingenuous statements about that. What the bill does is shift the consideration of the argument for provocation from juries as arbiters of fact to judges. It makes provocation a potential factor to be considered by a judge under section 102 of the Sentencing Act in deciding whether to depart from the presumption and impose a term less than life imprisonment because to do otherwise would be manifestly unjust. 
That Sentencing Act is the same Act that that automatically in a Kafkaesque or Orwellian way reduces sentences to just one-third of what is handed down by the judge. The Sentencing Act itself is manifestly unjust. It lets persons who are given 10 years in jail serve 3½. The bill before us suggests that we do not trust the community to judge its peers when on the evidence quoted by Ms Dalziel and confirmed by me juries have shown themselves on the whole to be more than capable of fulfilling that role and deciding whether the partial defence is justified. 
Members on the other side of the House have tried to portray this defence—and I am sad to say that Chester Borrows whom I respect greatly has done this also—as synonymous with a gay panic defence. Well that is simply not true. One successful case involved a female victim of long-term domestic violence. Another involved the son of a terminally ill woman. No one has mentioned tonight—and I am not surprised sadly—the case of Epifania Suluape a Samoan woman who killed her husband after years of physical and emotional abuse. She had been cheated on countless times mocked and taunted by her former partner who was a noted artist while she stayed at home in Mangere and looked after the kids. She had been cut with a machete and even infected with a venereal disease. 
Finally the partner said he was going off with his latest floozie and she asked him whether that was the case. He laughed at her and she hit him with a hammer and killed him. The jury decided that she was provoked. The judge disagreed and said there were no significant mitigating factors and that the offence bordered on murder. [ 
Interruption 
] No—no Labour members mentioned Epifania Suluape. Her sentence of 7½ years for manslaughter was reduced to 5 years on appeal. But had the trial judge listened to the jury in the first place there would have been no need for an appeal. To me and the ACT party it makes sense to trust a jury of one’s peers rather than a judge in terms of a decision about whether provocation is an acceptable factor or defence. 
All of us in the House want to avoid a repeat of the Clayton Weatherston trial. What a terrible spectacle it was! But a law change would not and will not avoid that. All it will do is move provocation from a defence to be put to the jury to a factor to be put before the judge at sentencing. Why would any offender now even if it is fancifully imaginable not put the factor of provocation? We will not be sparing the families of this country. We will still be subjecting them to the kind of thing that the Elliott family had to put up with—it will just be in front of a judge rather than a jury. 
The Law Society and I—we are somewhat unusual bedfellows—would be more inclined to support a law change if we replaced it something else such as a diminished responsibility defence. Other common law countries that have abolished this defence have done so only when it has been replaced by an alternate defence like that of diminished responsibility battered woman’s syndrome or temporary insanity. The Law Society says—and as I have said I have checked with the submitters—that its position remains the same—before we tamper and remove a defence that has been a part of our law for centuries we must replace it with something else such as diminished responsibility. 
Hon Lianne Dalziel 
: Oh God! 
DAVID GARRETT 
: I am quoting the Law Society I say to Ms Dalziel so she should not groan. That member is normally a big fan of the Law Society. Well I am agreeing with it on this occasion. 
One of those submitters said that if the provocation defence was to be abolished “juries might convict on the alternative charge of manslaughter based on their sympathy for the defendant rather than on rational grounds.” Another learned prosecutor said that there is a real possibility of the number of hung juries increasing as they become split over whether those who would argue provocation should be found guilty of the offence of murder. 
Finally I noted in my first reading speech that this bill needed to be considered by a select committee. That is why ACT members voted for it at first reading. I said in my first reading speech that I hoped it would receive at least as many submissions as the Sentencing and Parole Reform Bill which had more than 1000. I ask members to guess how many submissions were received on this bill. Mr Chauvel loosely talked about a majority of submissions. Well there were 14 submissions—14 submissions on a defence that has been part of the common law for centuries. 
I urged the House to calm down take a breath and think things through. Well that will clearly not happen. I believe that if we abolish the defence of provocation as we are about to we will create a whole host of other problems instead. I am happy to be the representative of the contrarian party in the House and vote against this bill.