Provocation Defense Should not Be Repealed Says NZLS Criminal Law Committee

LAWFUEL – The NZ Legal Newswire – LawTalk reports that the partial defence of provocation is an important part of our legal framework and should not be repealed as the Law Commission recommends, NZLS Criminal Law Committee Convener Jonathan Krebs says.

The Criminal Law Committee discussed the issue on 26 October, the day the commission released its report on the matter. The committee recognised that provocation was problematic, that it was not easy to explain and that it was not easy for a jury to understand. However, it thought it should be retained until there is some alternative.

“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.

The Law Commission suggests the new sentencing model could include provisions for considering provocation as part of the sentencing process. The Criminal Law Committee’s position was that “we shouldn’t be talking about getting rid of provocation” until the new sentencing regime was in place.

In relation to the situation where battered women killed their abusers, the Law Commission found that few women had “successfully relied upon provocation” as a defence. However, the Criminal Law Committee considers that the situation for battered women is “another area of diminished responsibility” where provocation can apply and should be available as a defence.

“If they recast the partial defence of provocation into a partial defence of diminished responsibility, that would answer the concern, but that would also be widening the defence,” Jonathan Krebs says.

The NZLS Women’s Consultative Group made a submission to the Law Commission stating that it considered abolition of provocation as a partial defence was not likely to prejudice the position of female accused who offended against their abuser, although self-defence might still be appropriate in many situations.

Law Commission President Sir Geoffrey Palmer said provocation was no excuse for murder and that s169 of the Crimes Act 1961 must be repealed, when he released the commission’s report 98, The Partial Defence of Provocation, which is available at

He said the Law Commission had reported on this issue in 2000 and had recommended repeal then but in 2004 the Government asked it to consider several further matters, resulting in the latest report.

In relation to the implications of repeal for battered women and the mentally ill or impaired, the commission found that very few such defendants had successfully relied upon provocation. Crown prosecution files showed 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.”

The commission noted that a life sentence was no longer mandatory for murder in New Zealand. Under the Sentencing Act 2002, sentencing judges had the 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 said.

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