Borrows Chester: Crimes (Provocation Repeal) Amendment Bill — First Reading 
Borrows Chester: Crimes (Provocation Repeal) Amendment Bill — First Reading 
[Volume:656;Page:5658] 
CHESTER BORROWS (National—Whanganui) 
: 
 It is a privilege to be able to stand and take some role in this debate on the Crimes (Provocation Repeal) Amendment Bill. It is interesting and heartening to note that the law is able to make some changes to take account of the I guess “livingness” of the criminal law as it operates within our society of changes that occur across that society and of the ways in which the criminal law evolves. It is interesting and pleasing to see that there is conviction from all sides of the House to enter into the debate around the defence of provocation and whether the time has come for its removal. 
I am one who argues that the time has come for the removal of the defence of provocation given that there has been the removal of the mandatory imposition of a life sentence upon conviction of murder. The historical context as has been explained is that the defence of provocation arose during a time when capital punishment was the preferred sentence for someone convicted of murder and more recently when a life sentence was mandatory. 
A number of statements have been made in respect of battered woman’s syndrome. It is important to note that that particular defence is not applied to provocation but more likely to one of self-defence because of the slow-burn nature of battered woman’s syndrome and the acts that come out of it. It is important to note what would happen with the removal of the defence of provocation in respect of charges of manslaughter. Two charges would be laid: one of murder and one of manslaughter where for instance there is an indication of some heat in the response to the behaviour exhibited around the situation where homicide has prevailed. Two charges would then be put in front of juries: murder and manslaughter which is laid in the alternative. Within the jurisprudence that seems to have evolved in cases where there are one or two stab wounds it seems that juries prefer a conviction on a charge of manslaughter as opposed to one of murder. Some cognisance is taken of the “heat of the moment” in respect of those charges. 
There has been some suggestion that no evidence would be given and that no cross-examination would be made in order to bring out evidence of provocation. I tend to think that there would be some evidence to a degree so that it could be raised at the time of sentencing. But I do not think there would be anything like the sort of labouring of the cross-examination to bring out evidence along the lines that we have seen over the last 20 years or so especially in respect of the most recent and high-profile cases we have seen on our televisions. 
I think it is certainly time to look at how this particular defence has played in the minds of juries. In the future I personally would like to see us take a look at the way and the circumstances in which we use juries. It is a real shame I believe that in many cases juries have the full theatre of court—or what is reduced to a theatre in a courtroom—played out upon them. Then there is a collective wisdom but in some cases some would argue it is a collective prejudice against complainants as they are outlined to be by evidence given particularly by a defendant which is quite rare and by those tending to be called by the defence in order to build a platform for a provocation defence. 
We need to think a little bit more—and I hope we do it soon—about how in the course of jury selection and jury debate around cases this collectivity can work upon the minds called to make decisions in the jury process. We can tend to find—and we find it not only in cases such as these but also particularly in cases of sexual offences against children—that if individual jurors were able to make a decision based solely on their thoughts and their assessment of the case without having to enter into the quite severe debate within the jury room then they may well come to a different view. I believe that that is definitely the case. 
It seems a bit obscure to make those comments now without trying to cast aspersions on those who sit on jury panels but I believe that this defence would never have received the sort of traction it has in the types of cases around homosexual bashing if the jury system was set up to allow people to be able to hold their views a little more privately at a time when they are making these decisions. 
Finally I say as chair of the Justice and Electoral Committee that I am pleased to be able to stand in this debate and acknowledge this bill. I look forward to the discussion and debate and to the submissions that will come before us and I acknowledge the fact that there seems to be some unity around the House at this time.