LAWFUEL – New Zealand Legal Jobs & News – Reforming the partial defence of provocation to make it work better would be preferable to abolishing it, says University of Auckland Professor of Law, Warren Brookbanks.
The Law Commission has released a report titled The Partial Defence of Provocation, which recommends that provocation be abolished as a defence, the Auckland District Law Society reports. Professor Brookbanks in an interview with Law News said that he was divided in his own mind as to whether abolition was the right course of action but came down on the side of believing that reform would be preferable.
He said that he probably stood with the Criminal Bar in asserting that there were already limited numbers of defences for people charged with serious crimes and having the defence of provocation was one means of putting the prosecution to the proof. Abolition would essentially remove the distinction between murder and manslaughter, which he said was an important distinction as it meant that people responsible for killing a person but who had been swayed by extenuating, strong emotions did not run the risk of being stigmatised as murderers.
Professor Brookbanks said he was aware of strong moves towards abolition of the defence both in New Zealand and overseas, because of the argument that the current rules were difficult to understand and apply. The law had become extremely complicated and was almost impossible to operate in practice. “Certainly a strong case can be made for reform.” However, the issue was whether to go the full way to abolition. “My preference would be to retain and reform the doctrine to preserve the important distinction between murder and manslaughter.” Professor Brookbanks said that a successful precedent for reform was the approach which had been taken to self-defence 25 years ago.
The law had been redrafted so that it was expressed in very simple terms and this had worked very well in practice. Victoria University Faculty of Law Associate Professor, Elisabeth McDonald, said that what had changed her mind in favour of abolition of the partial defence was the imminent advent of a Sentencing Council, which she said would make the sentencing process more transparent. Professor McDonald said that at present there was no ability for the public to analyse why particular decisions had been made but the council would result in more openness. In relation to the position of battered women, she said that they continued to fall through a crack in the legal process. Provocation did not work well as a defence for them but self-defence was also problematic. This was because the law required threats or perceived threats to be imminent.
However, Associate Professor McDonald queried whether, if the perpetrator believed that there was no other option available and pre-emptive action was required, it should matter when that belief was held. She said that further work was required on the law of selfdefence. Law Commission president, Sir Geoffrey Palmer, in releasing the commission’s report said every law reform body that had considered what should be done about provocation had recommended repeal of the partial defence. The matter had been considered half a dozen times over a 30 year period and the conclusion had always been the same. He said that the time had now come to act on the recommendation. Sir Geoffrey said that the problems with the partial defence were such that they could not be overcome by redrafting it. In particular, the commission did not believe that the policy basis for the defence was sound. He said that the commission had been asked to consider the implications of repeal for battered women and the mentally ill or impaired.
It found that provocation was successfully relied on by very few such defendants. Instead, an analysis of all of the homicide files held by Crown prosecutors in Auckland and Wellington relating to trials occurring between 2001 and 2005 showed that provocation had been successfully relied on 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. More broadly, and more importantly, intentional killing in anger in any circumstances is inexcusable. Section 169 (of the Crimes Act), 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.” Sir Geoffrey said that the repeal of provocation would change only one thing for defendants who would formerly have relied on it: they would be convicted of murder instead of manslaughter.
He said that the provoked, by legal definition, were intentional killers, and all other intentional killers were 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.” Sir Geoffrey noted that the life sentence was no longer mandatory for murder. Under the Sentencing Act 2002, sentencing judges had 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.”
The 107 page report states that there is a widespread view that the present operation of section 169 is unsatisfactory. Twelve out of the 16 Crown Solicitors support repeal, while the Defence Bar is adamantly opposed to repeal but nonetheless wants the partial defence framework to be reformed. This would either be to include more partial defences or to replace provocation with a partial defence that is broader in scope. The report notes that senior members of the judiciary have repeatedly expressed dissatisfaction with the defence in appellate judgments. The commission says that among mental health professionals there is virtually universal recognition that provocation benefits very few defendants who are mentally ill or impaired. The same is true for women’s groups considering the defence from the perspective of women generally and battered women in particular. The report notes that there were broadly two views about the appropriate remedy among those consulted. Those favoured reform of the partial defence framework were those who considered it was important to involve juries in the assessment of relative culpability and who felt it was similarly important to signal reduced culpability by means of a manslaughter verdict.
However, the commission says that it considered all of the available options and found each one to be flawed. “While there are some arguable reasons to retain a partial defence framework, overall we consider these unconvincing, and in any event insufficient to outweigh the considerable problems with each reform option.” The report says that the commission has accordingly come down on the side of those supporting the second option of repeal. It says that provocation could then be dealt with as a sentencing issue.