Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8266. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 It is said that hard cases make bad law. Tonight we had a new maxim from the ACT Party—hypothetical stories spun for electoral rhetoric make for rotten politics. Let me recall three of the hard cases that illustrate the bad law that we have now. And unlike what we heard in the second reading from Mr Hide and in the Committee stage from Mr Garrett these are facts—not hypotheticals. These are the most recent cases in which the defence of provocation has succeeded. 
In the case of the Crown and Ambach earlier this year Ambach beat Mr Brown to death with a banjo and then with the weight from a dumbbell. Ambach ransacked the downstairs of Mr Brown’s home whether before or after the beating is not clear. The police arrived and found Mr Brown unconscious on the stairs with very serious head injuries including the bridge of the banjo rammed down his throat. While detained in a police cell Ambach manipulated a cut to his finger and heavily smeared the walls of the cell and his face with the blood. Police officers in attendance thought his injuries to be serious owing to the amount of blood and took him to hospital. There no injuries other than a cut to his finger were found. 
In an interview the next day Ambach was calm and through an interpreter gave an account of the previous evening. Ambach said Mr Brown touched him on the thigh after he had been drinking with Mr Brown for a time. Ambach said that he indicated he was not interested in Mr Brown in that way and said he pushed Mr Brown’s hand away. Ambach said he then had another drink and that at some point Mr Brown went upstairs turning the downstairs lights off. Ambach says that Mr Brown called him to come upstairs. He claimed that he wanted to leave but said he could not find the way out. Ambach claimed not to be able to remember anything after that. But later in his police interview he said he thought he went upstairs. In no clear sequence he remembered flashes including Mr Brown chasing him round a table and Mr Brown throwing things at him. Ambach claims to have barricaded himself in and claimed to have no memory of how he hurt Mr Brown. 
At trial Justice Winkelmann allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ambach was convicted not of murder but of manslaughter and sentenced to 8 years in prison. The sentence but not the verdict is under appeal but as with the comments made by Lianne Dalziel and I throughout this debate nothing I have said bears on the sentencing appeal. 
The case of the Crown and Ali was one I mentioned in my first reading speech on this issue so I will not repeat its revolting facts here. I will record though that on the facts that were similar to those I have just recited in respect of Ambach at that trial Justice Williams allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ali was convicted of manslaughter and sentenced to 3 years’ imprisonment. 
In the case of the Crown and Edwards on the evening of 20 July 2003 Mr McNee was driving his car along Karangahape Road in Auckland. Edwards in the company of two friends noticed Mr McNee’s car. Edwards concluded that Mr McNee was looking for somebody to pick up. Having been released from prison 10 days earlier—he had some 50 previous convictions—he had no money so he jumped into the car when it stopped at the nearest traffic lights. Edwards said he concluded a bargain with Mr McNee to perform sexually in his presence for $120. Mr McNee said that his home was nearby and as Edwards needed a shower they went there. Following the shower Edwards went into the main bedroom. According to him after some sexual contact he got to his feet and started hitting Mr McNee with his fists. In court he admitted to striking Mr McNee between 30 and 40 times. 
Edwards said he felt very angry and that everything afterwards became a blur after the first few blows. When Edwards stopped beating Mr McNee Mr McNee was on the floor and there was blood everywhere. Edwards then made off with items of Mr McNee’s property. 
At trial Justice Frater allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Edwards was convicted of manslaughter and sentenced to 9 years’ imprisonment. 
Each of the three cases over the past 6 years that I have outlined shares four very disturbing features. First the account we are left with of the events in question is inevitably that of the killer. The killer goes out of his way to besmirch the character of the victim portraying him as sexually predatory and therefore somehow deserving of the agonising death meted out to him. Grotesquely the voice of the victim is silenced and substituted for by the only surviving witness the person who stabbed beat or otherwise brutalised him to death. 
Secondly aspects of the evidence indicate dishonesty on the part of the killer. Ambach’s and Edwards’ alleged blackouts Ambach’s smearing of blood from a flesh wound to make it look as if he were wounded more severely Ali and Edwards’ theft of their victims’ property after killing them and Ali’s wiping of fingerprints from the crime scene and the selling of his victim’s property are not the actions of people with a propensity to tell the truth. Their claims of blackouts during which they experienced uncontrolled rage the essence of the provocation defence just do not ring true. 
Thirdly horrific violence was inflicted in the killing. In Ambach’s case a banjo bridge was found rammed down the neck of his victim; in Ali’s case there was a stabbing five times; and in Edwards’ case there were 30 or 40 blows. 
Fourthly a High Court judge in each instance instructed a jury letting each killer get away with murder by allowing a manslaughter verdict in each case to a man who claimed to be the unwitting victim of sexual advance from another. Uncontrolled rage led to a reward: a lesser verdict in circumstances where more controlled anger or violence would have seen the killer penalised with a more severe verdict. 
The overwhelming majority of submitters to the Justice and Electoral Committee supported the abolition of this outdated and discredited defence. The Law Commission rightfully recommended its repeal. My colleague Lianne Dalziel rightly introduced a member’s bill to effect that repeal. I was glad to draft it for her. She rightly and graciously withdrew that appeal so that Simon Power could advance the Government’s decision to progress repeal and I commend that decision in the House today. 
It is wrong for the ACT Party which masquerades as the liberal party and as a champion of victims’ rights to be the only group in this House to oppose repeal. That is an insult to the victims of violent crime but it shows that party’s true colours. It votes today to continue to sanction a defence that legitimises violence against gay men and against women. I say shame on it. Having heard David Garrett’s contribution during the Committee stage I think Chris Carter is right. We understand the coded message being sent about which New Zealanders’ lives and votes are worth more than others in the ACT Party’s estimation. I congratulate the rest of the House on moving to take this Dickensian defence off the statute book by the end of this evening.