Law Commission Report on the Partial Defence of Provocation

A recently released report from the New Zealand Law Commission concludes that section 169 of the Crimes Act 1961 should be repealed, abolishing the partial defence of provocation.

The Law Commission president Sir Geoffrey Palmer said that provocation was no excuse for murder. He said “every law reform body that has considered what should be done about provocation – and there are half a dozen, dating back 30 years to 1976 – has recommended repeal of this partial defence.” The Law Commission has suggested that Judges should deal with provocation as a sentencing issue.

The Commission was asked to consider the implications of repeal for battered women, and the mentally ill or impaired. It found that provocation is successfully relied upon by very few such defendants. Instead, Crown prosecution files show that during a five-year period, provocation was successfully relied upon in only four out of 81 murder cases. Two of the four were so-called “homosexual advance” or “homosexual panic” cases.

“We do not believe that such circumstances offer a valid excuse for murder,” Sir Geoffrey said. “More broadly, and more importantly, intentional killing in anger in any circumstances is inexcusable. Section 169, as interpreted by the courts, requires the defendant to have demonstrated the self-control of an ordinary person. But even when very angry, no ordinary person responds to any provocation by deliberately killing. That is an extraordinary and inexcusable response.”

“If provocation is repealed, only one thing will change for defendants who would formerly have relied upon it. They will be convicted of murder instead of manslaughter. That is all that a partial defence achieves.”

Sir Geoffrey said that the provoked, by legal definition, are intentional killers, and all other intentional killers are convicted of murder. The Commission does not consider that the provoked should be treated any differently. This will not exclude them from recognition of any relevant mitigating circumstances. That can occur on sentence.”

The life sentence is no longer mandatory for murder in New Zealand. Under the Sentencing Act 2002, sentencing judges have discretion to impose a finite sentence.

“Sentencing judges may be better equipped to deal with the issues in a way that is consistent, and therefore just, than juries are. Sentencing guidelines presently being drafted by the Sentencing Establishment Unit based at the Commission are expected to assist judges, and offer public reassurance that the interests of particular groups of defendants will not be overlooked,” Sir Geoffrey Palmer concluded.

However, in the latest issue of Law Talk, published by the New Zealand Law Society, Criminal Law Committee Convener Jonathan Krebs has argued that provocation is an important part of our legal framework, and should be retained.

The Committee said they recognised some problems with the partial defence of provocation, but thought that there was no suitable alternative at this point in time, as the new sentencing framework is not fully in place. "It is important in our legal framework, even more so when there is no other ability for the jury to distinguish between degrees of murder," Jonathan Krebs said. Krebs said the defence should still be available from battered women who kill their abuser.

Law Talk quotes the Law Society Women's Consultative Group who said that the abolishing provocation as a partial defence was not likely to prejudice women who offended against their abuser.

The Law Commission report can be downloaded from: www.lawcom.govt.nz/ProjectReport.aspx?ProjectID=138

Law Talk articles can be accessed from: http://www.nz-lawsoc.org.nz/lawtalk/lawtalk.htm