Dalziel Lianne: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8258. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 The Crimes (Provocation Repeal) Amendment Bill is a very important measure that the Committee is debating tonight and I think it is a shame that members do not have a unanimous position on it. I think that that would be respectful to those who suffered throughout the trial of the Sophie Elliott case. I find it incredible that the one example that has been brought to the House as a reason for voting against the passage of this bill is a case that did not occur. It is the “case” of a close relative of Sophie Elliott coming into the room as she was being killed and expecting that a particular response—seeking to defend the life of a sister in that particular case—would not fall within the definition of self-defence. In that entire contribution no mention was made of Ronald Brown. Ronald Brown died at the hands of somebody who said that Ronald Brown had approached him in a manner that was a homosexual advance and that he was so affected by this approach he felt that it was within his right to claim the defence of provocation against a charge of murder and he claimed that defence for himself. Mr Ambach was found guilty of manslaughter not murder. I find it incredible that anyone can stand in this Chamber and put a hypothetical story ahead of the real case we have had played out in our courts. It was not on our television screens in the way that the Clayton Weatherston case was played out but it was a case that happened pretty much at the same time. We saw the provocation defence being used. 
I think what members—perhaps only a few—have overlooked is that provocation is only a partial defence. The partial defence existed when murder attracted either the death penalty or subsequently a life sentence as the only mechanism for showing society’s abhorrence for the action that had been undertaken. For a person’s intentional taking of someone else’s life society said that that person’s life would be taken—an eye for an eye a tooth for a tooth or whatever the expression might be. The death sentence was the original sentence for murder. That was replaced in this country—and I cannot recall the exact date off the top of my head—with a life sentence for murder. [ 
Interruption 
] I cannot remember when the death penalty was replaced with a life sentence but I believe it was in the 1960s. In 2002 a further step was taken and that was to remove the obligation on the court to impose a life sentence if a murder conviction was entered. That was to recognise that there would be circumstances where the intentional taking of life would be proved but the imposition of a life sentence would not produce a just result. 
I heard the chairman of the Justice and Electoral Committee Chester Borrows use the example of the individual who entered into a suicide pact with his wife. That was a tragic tragic case. The suicide pact was a two-way thing. It was effective for the taking of his wife’s life but was not effective in his own case. He survived his suicide attempt even though he had assisted his wife’s suicide. In that case he pleaded guilty to the charge of murder. He had intentionally taken the life of his wife. There is not a Court in this land that would have felt comfortable with imposing a life sentence on somebody in the tragic circumstances that played out in that particular case. So the court exercised the discretion that it now has under the Sentencing Act and imposed a sentence of 18 months with leave to apply for home detention. That was an acceptable way of saying that there was a difference in such cases. 
My deep and abiding concern about leaving this issue to a jury is that we invite jury members to put themselves in the place of the person who has been accused. We invite them to apply every prejudice that they might hold against the person who has provoked the individual. Nothing justifies the acceptance of provocation. I have felt very angry with people on occasions but not so angry that I would want to take their lives. I cannot imagine a circumstance where I would be so angry. I have noted before that when a lot of the feminist literature about the subject of the provocation defence was written back in the 1980s as a response to Dr Minnett killing his wife Leigh Minnett many headlines changed the word manslaughter to “mans laughter”. The two words of course join to form the word manslaughter. The point was that it seemed that the characteristics of the reasonable expectation around self-control and what would breach that self-control applied only to men in those circumstances; they certainly did not apply to women. 
In fact women were far more likely than men to end up in front of the courts accused of the murder of their spouse or partner than men were. They would be far more likely to do so in what the court might consider to be a far more considered and cold calculating fashion because obviously the respective strengths of a man and a woman are different. Often the woman’s response took the circumstances a little more into account. For example in the case of the woman who took her husband’s life while he lay sleeping the court accepted fully in that case that she was the victim of domestic violence that she had been subject to severe threats and that those threats had been made not only to her but also to her wider family. There are other instances where women have not been able to rely on the defence because of the method of responding to the fear that they have felt. Nothing excuses the level of provocation that has been claimed in the cases that have been played out in the media over recent times either. 
Historically this defence has had its time. Those who say that we are debating this legislation in Parliament now because of the two cases that we had in front of the courts over recent times actually have not bothered with the history of this defence. The Law Commission came down very very clearly on two occasions for the repeal of the defence. The issue went back to the Law Commission for the second report because there was a concern about battered women’s syndrome and about people with mental impairment. There was a concern that in actual fact in the kind of defence where we would expect provocation to play a role the defence had not been able to be used by the very people whom the Law Commission was concerned about. The Law Commission took a lot of time to do the research. I know that we have the figures in front of us somewhere that detail the number of successful uses of the provocation defence over the 5-year period that the Law Commission looked at. In 2007 it found that provocation was successfully relied upon by very few defendants. Crown prosecution files showed that during the 5-year period provocation was successfully relied upon in only four out of 81 murder cases. 
So the defence really is an anachronism now and it is time for it to go. I think it is unfair to use a hypothetical example arising out of a tragedy when we know that the effect of having that defence there led to that particular family having to listen to things about their daughter that in fact nobody could get up and refute because the only person telling the story was the one who had silenced for ever the other witness to the events in that room that tragic day. So I believe that we owe it to the families—not just of the recent cases but also of the ones that have gone before—to them to act in unison in this Parliament and remove the defence. The reason for the defence has gone—it went with the death penalty and it went with the automatic life sentence—and it is time that we leave this matter to the judges. We are inviting juries to substitute their prejudices for law. That is what the Law Commission said and I believe that it is absolutely vital that we take this opportunity to act as one and remove the defence that should no longer be on our law books.