Garrett David: Crimes (Provocation Repeal) Amendment Bill — First Reading 
Garrett David: Crimes (Provocation Repeal) Amendment Bill — First Reading 
[Volume:656;Page:5654] 
DAVID GARRETT (ACT) 
: 
 I rise to speak on the Crimes (Provocation Repeal) Amendment Bill. Before I get to my notes I would like to say that in my relatively short time here I do not think I have heard a more moving speech than that made by the previous speaker Kevin Hague. I would like to make it absolutely clear to this House and whoever may be listening that I find it absolutely repugnant that someone—and I am vaguely familiar with the case in Christchurch some years ago that was referred to by Mr Hague—could go off for a bit of queer bashing I think it was called and successfully use a provocation defence. 
I also find it difficult to accept the outcome of the more recent McNee case where a sex worker who obviously knew he was going to have a sexual transaction with a man could then successfully use a provocation defence. I want to make it very clear again that that kind of savagery has no place in 21st century New Zealand. Having said all that—and I will not resile from my preamble—we are only cautiously supporting this bill at its first reading. 
I was looking around the House while my colleague Kevin Hague was speaking. I do not know every member. I know many of the members who are lawyers—I am thinking of Mr Power Mr Chauvel Ms Dalziel and Mr Parker. But as far as I am aware none of us is a criminal lawyer. I certainly am not. 
The question of a provocation defence is a very very vexed question and I believe that the bill is the epitome of a measure that should go to a select committee. It is absolutely not simple. I notice with great interest that there is universal support for the bill at its first reading from all sides of the House and as I have said as was shown in the most moving way by Mr Hague. 
The Hon Lianne Dalziel as Mr Power and Mr Hague mentioned was lucky enough to have a bill pulled from the ballot a few weeks ago. Her bill would have done much the same thing as this bill and I notice and applaud her for graciously eschewing political point-scoring and for giving her support to this Government measure. 
As much as I respect the Hon Simon Power I fear I cannot accept that this bill and Ms Dalziel’s bill are unconnected with the recent Weatherston case. Before I speak any further let me make it very clear that I am very very aware of the boundary between this legislature and the courts. If I thought for one moment that Justice Potter would be influenced in her sentence by what I am saying tonight then I would say no more. I understand that the convention of non-comment extends beyond verdict to sentence and I will choose my words as carefully as I can. 
I think it is unavoidable and it does not help—and I mean no disrespect to the honourable Charles Chauvel—to refer to a recent prominent case. We all know that that case is of Clayton Weatherston stabbing his girlfriend. I will confine my observations to those facts that are public knowledge. Weatherston stabbed his girlfriend 216 times in a frenzied attack continuing long after she was dead. At his trial the defence he used was that of provocation. It has to be said to digress just slightly that he did not have any other defence it seems to me inexpert as I am in criminal law. His defence was at least in part that she deserved to die. That the provocation defence was even available to him upset many people. 
In the past I have criticised criminal lawyers but I would like to go on record as saying that the criticism of Ms Ablett-Kerr in this particular case is abhorrent. Criminal lawyers have to do their job. It is not a part of the law that I chose quite deliberately. Criminal law is a vital part of our system and she offered what seemed to me to be the only defence available. But that defence failed. Twelve ordinary people heard it. The jury saw the odious Mr Weatherston smirking in the witness box and they rejected the defence. 
One point that has escaped attention both in this House and sadly to a great extent in the media is that Weatherston could have done exactly the same thing using the defence of self-defence. It will be recalled that he claimed—and as other speakers have said correctly no one was there to contradict him—that Ms Elliot attacked him with scissors. So he could have used the defence of self-defence and could have said the very same things. 
I say again that the provocation defence did not work. Provocation is— 
Mr DEPUTY SPEAKER 
: Although the member has said he will be very careful in what he is saying I warn the member that the discretion to waive the sub judice rule resides with the Speaker. The rule extends to after sentencing. The member may address general aspects of the law but should not address the particulars of the case. I ask the member to be very careful in what he is saying. He can talk only about general aspects of the law not about specifics. 
DAVID GARRETT 
: Provocation is no more than a possible defence as was the former possible defence under section 59 of the Crimes Act. People perhaps tend to forget that it is not the case with provocation self-defence or with section 59 as it then was to simply offer up that defence and walk. Recent cases where the provocation defence has been offered have shown that it is just that—a possible defence. In fact a very small number of provocation defences are successful. I believe that in the last 5 years the defence of provocation was used in 15 cases of murder and if my notes are correct four were successful. 
A Samoan lady successfully offered the defence a few years back. I regret that the surname of the lady has slipped my mind. Her partner had flaunted his infidelity. He was a well-known fellow who went to displays in Auckland. He flaunted his lover and taunted his partner with it while she looked after 10 kids and dependent relatives at home. The lady was clearly driven beyond distraction. Her partner came home having announced he was leaving. She asked him whether that was the case having laid down a tomahawk in front of him. He taunted her again and she killed him. Her defence of provocation was successful. 
As I have said it seems to me that this bill cries out for careful scrutiny at a select committee. I very much hope it will get as many submissions as we received on the Sentencing and Parole Reform Bill; I think we received 1070 submissions. I for one would be very very happy if we received double that number on this measure. I am not always a supporter of legal academics but I will be listening very very carefully to anything and everything they have to say. 
It is very important that we do not throw the baby out with the bathwater; that we do not allow ourselves to be blinded by recent cases and cases from the more distant past that arguably are even more abhorrent such as the case in Christchurch; and that we remember that the defence works for both sexes all sexual orientations and all genders and needs to be examined very closely. We are not convinced at this stage of the merits of abolishing entirely the provocation defence. We will be very interested to see what the select committee comes up with. 
Just in closing I will touch on a bill that was put before an earlier Parliament I think by a former National MP advocating degrees of murder. As I understand the argument before the House tonight we effectively have that provision now by virtue of sections of the Sentencing Act that have removed the mandatory sentence of life imprisonment for murder. I regard the Sentencing Act as thoroughly unsatisfactory legislation as it automatically reduces sentences to one-third of what judges hand down.