Dalziel Lianne: Crimes (Provocation Repeal) Amendment Bill — First Reading 
Dalziel Lianne: Crimes (Provocation Repeal) Amendment Bill — First Reading 
[Volume:656;Page:5648] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I begin by congratulating the Government on the speed with which it introduced the Crimes (Provocation Repeal) Amendment Bill and on acting in good faith by debating the first reading at the earliest opportunity despite my decision to withdraw the bill that Charles Chauvel and I had introduced by way of the member’s bill ballot. I have not received a single negative response to our decision to withdraw the bill and that suggests a maturity in a debate such as this which we can have—and should have—constructed on a non-partisan foundation. I call that a win-win situation. 
I did not announce the withdrawal of our bill before I saw the Government bill because I was concerned that the Government might have been tempted to consider alternative measures such as degrees of murder being determined by the jury. I would have opposed that alternative. I have no objection to sentencing guidelines for judges which was the path the previous Labour Government had chosen to go down. The bill that Charles Chauvel and I had developed was a straight repeal as is the Government’s bill and that is why we are fully supporting its introduction and hopefully its rapid progress through the House. I would not have supported recreating the problem by calling it another name. 
Can I say to those who say that this measure is a knee-jerk response to two recent cases—and I fully back what the Minister of Justice has said—only one of which dominated the mainstream media which is a matter I will come back to shortly that this law change has been the subject of in-depth consideration across two Law Commission reports. The first report was in 2001 and the other report was in 2007. The first report focused on a range of criminal defences with particular reference to battered defendants and recommended that this partial defence be repealed. It also recommended the repeal of the mandatory life sentence for murder. This is very important because as the Minister has said the rationale for the defence was to avoid the mandatory sentence for murder in cases with mitigating circumstances. 
Most of the countries that retain the defence of provocation still have mandatory life sentences for murder. The previous Labour Government repealed the mandatory life sentence in 2002 thus the issue of the repeal of the defence of provocation came back to the Government. At that time officials raised concerns that were still prevalent in the community about battered women and I am pleased that the Minister has focused on that. They also raised concerns about the potential impact on mentally ill or mentally impaired offenders. It was legitimate for the Government to refer the matter back to the Law Commission given the extent of those concerns. The referral was made in 2004 and for 3 years this matter was subjected to detailed analysis including an assessment as the Minister has said of murder cases over a 5-year period—2001 to 2005 inclusive. This research challenged many of the assumptions about the pleading of the defence and the circumstances in which it was actually pleaded. I found the report very informative including as the Minister has said the fact that the defence had been successfully pleaded in only four out of 81 cases over those 5 years. 
This report also asked an important question which was what would replace the defence if anything. As I indicated before the Law Commission considered a range of alternatives and settled on the sentencing guidelines. The commission rejected the other options—in particular the introduction of a generic partial defence. Just one sentence in that report convinced me why the jury should have no part in the decision. This is the quote from the report that I felt was compelling: “This has the potential to reduce homicide to a lottery; it is an invitation to jurors to dress up their prejudices as law”. That is a very powerful statement because in many ways that is precisely how the current law stands—a lottery. 
So this bill was not a knee-jerk reaction nor has the work on the repeal commenced as a result of the two cases I referred to before and to which I now wish to turn. I too acknowledge the families of Sophie Elliott and Ronald Brown. Nothing will erase the impact of the slurs cast on their characters in the criminal trials that their families had to endure but to both families I offer up the knowledge that their experience will galvanise the response of Parliament into what I hope will be a unanimous vote of support for repeal. 
I have known about the defence of provocation for nearly 30 years. Dr Minnett killed his wife in 1980 while I was still a law student. I remember the feminist literature rewriting the word “manslaughter” to read “man’s laughter”. I recall not being able to believe that somebody could get away with murder by saying that his wife had driven him to it by challenging his sexual prowess. Leigh Minnett did not deserve to die nor did Sophie Elliott nor did Ronald Brown. 
I want to mention Ronald Brown because his case will be the last case where the defence of provocation was successfully pleaded in New Zealand. His case sums up what is wrong with the defence. I would like to say that the only reason his case did not attract the media attention that Sophie Elliott’s murderer did was that the accused did not give evidence at the trial. Deep down I know that is not true. That is not the reason why it did not get the media attention of the other case. I hope the media reflect on that and also reflect on the level of coverage they gave to an individual who was characterised as having a narcissistic personality disorder. It was not required in the public interest it was disrespectful of the family of Sophie Elliott and it was disrespectful of her memory. 
Returning to Ronald Brown the Law Commission identified that the defence of provocation is overwhelmingly used by men and is often used in situations where they say that their sexuality was threatened when their partner left them for another man or as in Ronald Brown’s case they say that they were propositioned by another man. My objection is that the evidence as to what allegedly incited this homicidal loss of self-control is entirely in the hands of the person who has silenced for ever the only other witness to the events. My other objection is that a jury is asked to determine whether the provocation was “sufficient to deprive a person having the power of self-control of an ordinary person but otherwise having the characteristics of the offender of the power of self-control;”. 
In one section of the report reference is made to substantial literature that documents the way that the defence has acted as a shield for men to react with murderous violence to threats to their sexual identity. The following point is made: “an acceptance that such reactions are those of the ordinary person (as the provocation defence explicitly does when it succeeds) implies that it is natural and excusable to feel revolted and violently outraged by the gay men and the former partners who have done no more than exercise their freedom of choice and expression.” The Law Commission states that the defence puts a premium on anger and not merely anger but homicidally violent anger. 
We have a campaign in this country with the catchphrase “It’s not OK.” and this defence of provocation is as not OK as the violence it excuses. The existence of the partial defence has been described as a blot on the criminal law and it is time that it is removed. I commend the bill to the House.