Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — First Reading 
Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — First Reading 
[Volume:656;Page:5651] 
CHARLES CHAUVEL (Labour) 
: 
 In the case of the Crown and Ali Mr Hart was killed by his nephew by marriage Amsheen Ali who was 16 at the time of the killing. Ali and a friend Nadan had tried to persuade Mr Hart to lend them a car so that they could go out to a nightclub. Their repeated requests were met with refusal. They smoked cannabis with Mr Hart and drank a little alcohol. At one point Ali picked up a knife from the kitchen played with it and then put it next to him on the couch while he watched television. At the time of the killing all the other guests had left and Nadan was outside smoking. Ali claimed that Hart had made a homosexual advance towards him hugging him rubbing his hands on Ali’s body and attempting to kiss him on the neck. Ali said that he was scared that Hart would rape him. Ali allegedly pushed Hart away on a number of occasions before he grabbed the knife and stabbed Hart at least five times including once in the back once in the chest and once in the neck. Ali then called out for Nadan and they left Mr Hart’s house locking it and taking with them his car keys wallet credit cards and some cannabis. Ali subsequently returned to collect the knife then they drove off collected two other friends and drove around Auckland for a number of hours. Ali told his friends about the killing but then said he was joking; he never mentioned the alleged advances. Ali and Nadan then left Mr Hart’s car in central Auckland after wiping it down to remove fingerprints and taking out the CD stacker and stereo. They then disposed of Mr Hart’s possessions including his wallet and his credit cards. Ali was arrested the next day. He admitted killing Mr Hart but said he did not mean to. On those facts he was convicted of manslaughter and sentenced to 3 years in prison. 
There are equally inappropriate uses of the defence in the casebooks in recent times. My friend and colleague Lianne Dalziel has mentioned the case of the Crown and Ambach. I will not say any more about that because I understand that sentencing is yet to occur in that case. But it is appropriate to pay tribute to Mr Brown the victim in that case and to note with satisfaction that if this Parliament does its job in a speedy fashion Mr Brown will be the last person in respect of whom this misguided defence succeeds. I will also not go into the facts in any detail of the well-known recent case of the Crown and Edwards where Mr McNee was killed and where in horrific circumstances his killer escaped a conviction of murder and was eventually sentenced on the lesser offence of manslaughter. These cases demonstrate that the scope for things to go wrong when this defence is pleaded successfully is ample and it is appropriate for this Parliament to finally take the action it is taking tonight to begin to erase the defence from the statute book. 
As the Minister of Justice said when the Crimes Act under which we currently operate was first passed in the 1960s there was the death penalty in this country. In those days murder meant a death sentence—it was automatic; manslaughter had other consequences. So one can perhaps see why it would have been thought appropriate at those times to distinguish between a crime of passion a crime in the moment and a premeditated killing and that is what the law did. But since we abolished the death penalty in the 1960s and as Lianne Dalziel observed as even murder does not now automatically result in a life sentence this defence simply has no further logical application on the statute book of this country. 
The defence is additionally inappropriate as Lianne Dalziel has said because it legitimises a violent reaction a lashing out and that is just not appropriate in a society that is trying to minimise and refuses to condone violence. Worse than that it is a defence that involves almost the ultimate insult to the victim because in general terms as the cases show only the voice of the killer is left at the trial—and normally not even the voice of the killer; it is the replay of the killer’s police interview because usually the killer does not even enter the witness box. All that the jury ever hears is the killer’s account of the victim’s last moments and inevitably the account is coloured; it is designed to paint the victim as somehow morally inappropriate and deserving even of what eventually happened to him or her. Lianne Dalziel has described a recent case where the public finally realised that the application of the partial defence can have absolutely revolting consequences when a trial is played out and it is applied. 
I am pleased New Zealand is joining most other comparable overseas common law jurisdictions that have already abolished the partial defence. Most of them inherited it as we did from Victorian English law and have seen fit to do away with it. It is timely that we should do the same. I also want to say a few words after acknowledging the Minister’s efforts to praise the work of the Law Commission because as now so often happens with worthy law reform projects in this Parliament effectively the Minister is giving life to a bill that was the appendix to the 2007 Law Commission report on this matter. As the Minister noted concerns have been publicly expressed on earlier occasions when this sort of law reform was considered that perhaps it might be something of a two-edged sword to abolish the partial defence as far as battered women or the mentally incapacitated might be concerned. 
The Law Commission report is well worth reading for people who have those concerns because it really does comprehensively put them to bed and demonstrates that in fact doing away with this partial defence would make society a lot safer including safer for women and for those of diminished capacity rather than deprive people who might be wanting to avail themselves of the defence in those categories of the ability to do so. 
The defence should have gone before now. The Law Commission reported in late 2007. There was a recommendation I think because of the recognition that there was ongoing or residual concern about differentiating between a crime of the moment and a premeditated killing that there should be some differentiation or ability to differentiate at least on the part of the judge at sentencing. The recommendation from the Law Commission was that there should be a guideline from the nascent sentencing unit to guide judges when the facts reveal that there was something along the lines of true provocation involved in a crime. It is a matter of record now that the Sentencing Council was not set up prior to the election. It now appears that it will not be set up. That is the reason why the previous Government did not implement the Law Commission’s report prior to the last election. 
But it is very good to see the Minister Simon Power introducing the Crimes (Provocation Repeal) Amendment Bill today. I commend him for doing so. I commend Lianne Dalziel for having introduced a very similar measure as a member’s bill and also for showing the generosity of spirit to withdraw that bill and allow the Government bill to proceed. Clearly given the rules of this House that is the appropriate thing to do if we want to see this reform enacted speedily. I hope it will be enacted speedily. I hope the select committee will hear submissions that I am sure will overwhelmingly be in favour of reform and repeal. I join other speakers in commending the bill to the House.