The provocation defence

July 10th, 2009 at 10:09 am by David Farrar

The Herald reports:

The family of a man who was bashed to death with a banjo have angrily condemned the law that allows a partial defence of after his killer was found guilty of manslaughter last night.

Ferdinand Ambach, a 31-year-old dive master from Hungary, had been accused of murdering Ronald James Brown, 69, after the pair got into a violent argument at Mr Brown’s Onehunga flat on December 7, 2007.

He claims that Mr Brown, who was gay, made unwanted sexual advances towards him. During the trial in the High Court at Auckland, his lawyer, Peter Kaye, raised the possibility Mr Brown may have attempted to rape Ambach which triggered “a monstrous rage” where the tourist temporarily lost his self-control.

As far as I know, there was no evidence submitted to prove this – it was just rasied as a possibility.

After three and a half days of deliberations, the verdict was delivered at 6.45pm. When Ambach was found not guilty of murder, but guilty of manslaughter, there were gasps from Mr Brown’s friends and family in the public gallery. Ambach was expressionless as he was remanded in custody until sentencing.

The family say:

Mr Brown’s niece Tracy Evans told the Herald her family were “deeply disgusted with the verdict”. She said the [provocation] law was “archaic” and had allowed a murderer to receive a reduced sentence for a “horrific crime”.

“It’s a sad indictment on our legal system that the defence can completely fabricate a case and slander a good man’s character in an attempt to defend a murderer.”

Indeed. Made worse by the fact the dead person can not defend themselves.

I do know of a couple of cases where provocation was exceptional, and a manslaughter verdict was (imo) justified.

But in recent years more and more I see the provocation defence being used to slander the dead, and especially used for “homosexual panic” claims. One case had a the accused get manslaughter only with this defence despite the fact he was a male callboy!

If unwanted sexual advances was legitimate provocation to kill someone, the population would be greatly reduced.

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76 Responses to “The provocation defence”

  1. NOt1tocommentoften (436 comments) says:

    DPF – excellent topic to post – very topical. It relates of course to this case and the case involving Weatherston.

    The Law Commission did a report on this defence in 2007 and recommended that it be repealed. Whether or not there are cases that ‘should’ rightly come within the scope of this defence, they very rarely (if not at all lately) come before the Court, and instead, the defence is being used in spurious cases such as this one (where it succeeded much to my horror) and is being used in the Sophie Elliot case.

    I don’t beleive the defence is appropriate in NZ – an alternative of course is to take these factors into account on sentencing as mitgating factors which can be looked at in their totality.

    Away with the defence!

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  2. Inventory2 (10,230 comments) says:

    And guess what – Charles Chauvel has been on the radio news this morning saying that the provocation defence is an ass, and should be abolished. As it happens, we are alrgely in agreement with his view, but it begs the question – why moan about it now, when you had nine years in government when you COULD have made such a change?

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  3. Brian Smaller (4,036 comments) says:

    If you are interested in this I think you should go over to the Weatherston thread on this site. There has been some good discussion and it was somewhat eye-opening for a legal lay-person such as myself.

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  4. mickysavage (786 comments) says:

    The provocation defence was enacted to provide some respite from the automatic life sentence that murder attracted. It allowed essentially some discretion where the killing was a “crime of passion”. It realised that there was a difference between a passion killing and, for instance, a cold blooded gang hit.

    The solution is to do away with automatic life sentences. This was done in part in 2002 where the Sentencing Act was changed to allow for a sentence for a lesser period if “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”.

    It may be time to review the section to see if it is still necessary but this should be in the context of a review of all killing sentences.

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  5. Chris Doms (73 comments) says:

    No right Turn yesterday:
    “If that standard – or its misogynistic equivalent, “the bitch tried to leave me” – applied to straight men, there’d be a lot less of them about.”
    http://norightturn.blogspot.com/2009/07/its-not-murder-if-theyre-gay.html

    DPF today:
    “If unwanted sexual advances was legitimate provocation to kill someone, the population would be greatly reduced.”

    Could be coincidence, I guess.

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  6. stephen (4,063 comments) says:

    …why moan about it now, when you had nine years in government when you COULD have made such a change?

    My guess is that it hardly ever came up.

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  7. ngaioconservative1 (10 comments) says:

    The question I have is are all these provocation defences just a coincidence or have defence lawyers opened up a precedent which they are now mining for all it’s worth? If it is the latter then I say close the dang loop hole now!

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  8. unaha-closp (1,154 comments) says:

    If provocation is not allowed and accused has indeed felt provoked to violence by unwanted sexual advances then the next available argument is self-defence. If the jury finds cause to believe that the deceased practiced unwanted sexual aggression toward the accused (like they obviously did here) then is there not a good chance the accused is going to walk?

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  9. democracymum (660 comments) says:

    I agree with DPF

    I wonder if ‘degrees of murder’ may be a better approach

    I also think that the defence’s ‘strategy’ to put Clayton Weatherston on the stand to somehow humanize him to the jury has backfired badly.

    His nightly testimony turns my stomach.

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  10. Le Grande Fromage (145 comments) says:

    based on a lifetime of watching legal dramas I think the murder defence options go something like this.

    Did it but no one can be sure – Pin it on someone else
    Did it but got caught red handed – claim provocation or say that you were temporarily mental.

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  11. Inventory2 (10,230 comments) says:

    @ democracymum – agree wholeheartedly. Weatherston’s testimonby is nauseating. But on the plus side, the jury is listening to his every word, watching his demeanour, and making a judgment on whether or not he is an arrogant awwwsss as Paul Henry would say. We can but hope that the jury makes the right decision.

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  12. MyNameIsJack (2,415 comments) says:

    One case had a the accused get manslaughter only with this defence despite the fact he was a male callboy!

    One case had the accused get manslaughter only with this defence despite the fact she was a prostitute.

    Does being a prostitute, male or female, reduce the value the law puts on that person?

    Is it OK for me to rape a prostitute, because in reality, its just like shop lifting? Should a homosexaual be forced to put up with unwanted sexual advances from another homosexual simply because he is homosexual? Should a hetro man also? Some homosexuals can become, shall we say, quite insistent.

    This is not to say I condone the actions of Ambach, but let’s not let a tragedy become a cause celebre for the homosexual lobby. That would be just too gay.

    [DPF: If you are going to claim the idea of homosexual sex was so revolting to you that you killed the person suggesting it, then an occupation of male callboy seems a strange one to be in]

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  13. NOt1tocommentoften (436 comments) says:

    MNIJ – Are you suggesting that it is alright to kill someone just because they shouldn’t have to ‘put up’ with an unwanted sexual advance? And given that some of the alleged ‘advances’ in these cases were touching a person on the knee or shoulder – are you saying it is appropraite to allow a defence in these cases as it is a justified response? Hell, if woman killed men every time they were the victim of an unwanted sexual advance there would be a lot of killings going on in bars around New Zealand…

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  14. MyNameIsJack (2,415 comments) says:

    No, not1, I didn’t say it was alright. Read again. Especially this bit This is not to say I condone the actions of Ambach…

    But sometimes homosexuals can become very insistent with other males, just as, sometimes males become over insistent with women. Each case should be judged on its merits, as it appears, the jury did in this one.

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  15. xxx (35 comments) says:

    A Hungarian tourist accused of murdering Auckland man Ron Brown turned into a “crazed monster” when the much older man tried to rape him, his lawyer says.

    Ferdinand Ambach, 32, has been on trial at the High Court in Auckland for the past two weeks, accused of murdering Mr Brown, 69, in his Onehunga home in December 2007.

    Yesterday, the Crown and defence presented their closing arguments.

    Crown prosecutor Deborah Marshall said Ambach killed Mr Brown out of anger and revenge for his unwanted advances.

    Mr Brown was a friendly, likeable man who met Ambach at an Onehunga bar, she said.

    They left together and walked to a nearby liquor store to buy some beer, then caught a taxi Mr Brown’s house in the same suburb.

    After a couple of drinks, Mr Brown dropped to his knees on the floor and ran his hand over Ambach’s inner thigh but stopped when Ambach told him he was not gay, Ms Marshall said.

    When Mr Brown later touched his groin, Ambach hit him at least five times over the head with a banjo, then rammed the broken neck into his mouth, she said.

    Mr Brown was left with a fractured skull, a fractured “Adam’s Apple”, bruised and swollen eyes, an 11 centimetre cut on his chin that ran all the way to his mouth and a 5 centimetre cut on his bruised left arm. His upper chest was also badly bruised.

    He died in hospital three days later.

    Ambach was also taken to the hospital, for treatment to a cut finger, where he was heard to yell “I should have killed him”, she said.

    Ms Marshall said Ambach was not provoked, and that Mr Brown’s actions would not have caused a normal person to have lost self-control.

    But Ambach’s lawyer, Peter Kaye, argued that Mr Brown’s advances involved much more than a casual touch.

    “This was an attempted rape,” he said.

    “The violence that occurred was horrific.”

    There was only one explanation for Ambach’s sudden transformation from the happy, friendly person seen on security camera footage at the liquor store, to the blood-splattered face of a “crazed monster” photographed by police in hospital.

    Ambach’s disjointed memory of that night included being chased, not being able to push himself up off the floor with his arms, of hiding in a wardrobe and throwing shoes and documents, a hand holding a knife and pointing it towards him and of finding himself with his trousers down by his ankles.

    ESR found no blood on Ambach’s clothes, supporting his claim that he remembered being in his underpants.

    Tests also showed there was semen in the crutch of Mr Brown’s underpants, on his trousers and on a fitted sheet that had come from the bed Ambach was later seen throwing out of an upstairs window.

    Ad Feedback There was also faecal staining “all over the place”.

    Mr Brown had a “dark side”, Mr Kaye said.

    Unknown to his family and friends, he was a homosexual with a penchant for younger men, possibly of Germanic origin, and was often “persistent” in his advances.

    “He was picking him [Ambach] up for sex,” he said.

    Ambach’s behaviour was so extreme something more than indecent touching must have happened, Mr Kaye said.

    Justice Helen Winkelmann will address the jury

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  16. xxx (35 comments) says:

    obviously there are questions to be asked surrounding time frames, but really, there is no “poor down-trodden homo” situation here. Could equally be asked – if a fella runs his hand up your male thigh, how long would you stick around?

    two drunken idiots, made for each other, spiralled into homocide

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  17. backster (2,135 comments) says:

    “It’s a sad indictment on our legal system that the defence can completely fabricate a case and slander a good man’s character in an attempt to defend a murderer.”

    Indeed. Made worse by the fact the dead person can not defend themselves………………

    Indeed the same thing occurred in the Bain case.

    As for the defence of provocation, if it is removed then it further undermines the need for a Jury system as it is the jury that decides whether there was provocation, without the provision it would be up to the sentencing Judge to accept or reject the element of provocation. (this could be influenced by his sexual orientation}…I agree with Mickey S that the term ‘Life Imprisoment is a prevarication and should be eliminated. Most heterosexuals would react physically to homosexual advances if they were physically able and the social engineering of the Liabour Government has resulted in an increase of this type of obnoxious provocation. Eliminating provocation as a mitigation should be accompanied by a specific offence aimed at deterring homosexual advances lest they proliferate even further.

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  18. andrei (2,533 comments) says:

    I guess the question might be When does “an unwanted sexual advance” become attempted rape?

    And what might constitute a natural response to that.

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  19. dime (9,775 comments) says:

    surprised in this PC world the guy wasnt charged with a HATE crime (gays lives are worth more than straight peoples lives according to many leftiests”

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  20. Le Grande Fromage (145 comments) says:

    It is a shame that Ron Brown wasn’t armed as well then you would of had duelling banjos.

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  21. peterwn (3,232 comments) says:

    The provocation defence came into being among gentlemen as some judge had sympathy for some poor guy who probably found another man in bed with his wife and thus was’provoked’ into taking action agains the other man. The judge would not want to see a gentleman swing from the gallows under such circumstances. It thus became part of the Common Law and the original drafters of the Crimes Act codified it into the Act. It tends to be a ‘sexist’ thing since a woman is not generally provoked by a major incident but tends to ‘snap’ after a series of minor provocations. The defence is not available in such cases much to the concern of the feminist movement (no criticism intended). IMO the ‘provocation’ defence should be abolished and replaced with ‘provocation’ being a possible mitigating factor when sentencing.

    I was interested in sentencing implications. Murder and manslaughter both have a maximum of life imprisonment. The sentencing Act indicates that life imprisonment with a minimum non parole period of 17 years is the norm for murder. For manslaughter the judge can set a finite term short of life and can set a minimum period of up to 10 years. This sounds wishy-washy but there is a large spectrum of manslaughter circumstances ranging from a seriously negligent act or omission right through to something just short of murder. IMO he should get the full whammy – life with 10 year minimum. He does not appear to have citizenship so he will probably be taken straight from jail to the airport after 11 – 12 years and good riddance.

    He was damn lucky I was not on the jury – I think I could have convinced the others that the defence counsel was talking a load of bull.

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  22. Ed Snack (1,823 comments) says:

    When I first read about this case, there was a further allegation mentioned, that Ambach’s drink had been “spiked” with something. That was cited as a further contributing factor. Certainly the case concerns an extremely violent attack. I would think that a provocation style defense should exist, only it should be difficult to prove. If the drink WAS adulterated, surely a loss of control under the influence of a drug unknowingly ingested (and in fact administered by the putative victim) has to be a mitigating factor ? How would one use such evidence if not in the form of a provocation defense ? An insanity plea perhaps ?

    I would also suggest that there may well be a lot of evidence not published that the jury did see and hear, that led them to their verdict. If you believe (as I do) that ultimately you have to trust people in general to be relatively sensible in such matters, then regardless of the attempt to claim provocation, the jury did have to believe that the evidence supported such a claim. They did, presumably for appropriate reasons.

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  23. NOt1tocommentoften (436 comments) says:

    Dime (gays lives are worth more than straight peoples lives according to many leftiests”) – Well according to cases like this one they are worth less!

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  24. Pj (5 comments) says:

    “Eliminating provocation as a mitigation should be accompanied by a specific offence aimed at deterring homosexual advances lest they proliferate even further.”

    The lady doth protest too much, methinks. What worries you so much about homosexual advances? ;)

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  25. Jman (84 comments) says:

    Yes get rid of manslaughter. It’s a stupid word made up by lawyers. When you kill someone it’s called MURDER. I would prefer our legal system to refer to 1st degree murder, 2nd degree murder etc. I find it offensive when I hear a lawyer saying Weatherston isn’t guilty of murder but only manslaughter.

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  26. andrei (2,533 comments) says:

    Well according to cases like this one they are worth less!

    In what way – pray tell?

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  27. Chris_C (224 comments) says:

    “If unwanted sexual advances was legitimate provocation to kill someone, the population would be greatly reduced.”

    They never said it was legitimate provocation. They said provocation was a mitigating factor.

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  28. J Mex (185 comments) says:

    “Yes get rid of manslaughter. It’s a stupid word made up by lawyers. When you kill someone it’s called MURDER. ”

    No. When you INTEND to kill someone, it is called murder.

    If you kill someone in a car accident, a hospital operation, or a self defence situation it is something else.

    Manslaughter is an appropriate sentence for someone who, say, kills another driver in an accident where they fell asleep while driving. They didn’t intend to kill the other person, but it wasn’t a complete and unavoidable accident.

    In saying that, I agree the provocation defence should go. I also very much doubt that Weatherston sill succeed in using it.

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  29. Nigel Kearney (953 comments) says:

    The provocation defence should not be scrapped.

    If a man tries to rape a woman and she manages to hit him on the head with an object, knocking him unconscious, then keeps on hitting him until he’s dead, that should be manslaughter. Even if self defence doesn’t apply because she knew she was no longer in danger when she kept hitting him, it’s still a perfectly proper provocation defence. If I was on a jury in that situation and the provocation defence has been scrapped I would rather let the woman go free than find her guilty of murder.

    The law is not anti-gay, it is anti-rapist.

    The wording of the provocation defence is very clear. It only applies in a situation where an ordinary person would lose the power of self control. In situations such as unwanted sexual advances it is the judge’s responsibility to recognize that no reasonable jury could find an ordinary person would lose the power of self control in that situation to the extent they would kill. The provocation defence should therefore be ruled out. It is entirely the fault of the judge if they fail to do so, not the law.

    In this case, I’m not entirely clear on what was put to the jury. If the jury believed the defendant’s claim that there was an attempted rape then the provocation defence should succeed. If the jury didn’t believe there was an attempted rape but found provocation just based on unwanted sexual advances, then it is a faulty summing up by the judge as he should have instructed them they can’t do that.

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  30. F E Smith (3,324 comments) says:

    Peterwn: the 17 year minimum non-parole is only for the worst sort of murder. Working out what that means is part of the difficulty of a murder sentencing. The normal expectation for a murder is life with the usual 10 years non-parole.

    Jmex and Jman: Manslaughter has a lot more to it than simply provocation. In fact, provocation is probably the least used of the manslaughter partial defences. Have a read of the long post by Ruby in the Weatherston thread from yesterday.

    Don’t forget that provocation has to get past the judge as a gate-keeper. The defence has to be able to show the judge some evidential basis that the judge accepts requires allowing the jury to consider provocation. The jury does not get to consider it without the judge allowing it. In fact, sometimes the judge must allow the jury to consider provocation even if the defence isn’t relying on it.

    I am a bit worried that there seems to be a consensus that a defence should not be allowed to be advanced simply because the deceased is not there to counter it. Self defence is always advanced in a murder trial in the absence of the accused, and it makes an attack on the actions of the deceased. Do you all propose to do away with that as well?

    Edit: Don’t forget that Gay Oakes attempted to argue provocation as well, namely through Battered Women’s Syndrome.

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  31. Put it away (2,888 comments) says:

    Manslaughter is a fair call here. Who can honestly deny that if some dodgy old shirtlifter grabbed their johnson, their reaction might well send the offender to hospital ? Add some alcohol and ( possibly) being drugged by the offender, and the reaction could easily end with him in the morgue. Grabbing a random object and bashing someone smacks of manslaughter. Bringing a concealed knife for the purpose of killing someone is murder.

    [DPF: You miss a key point. There is no proof there was any grabbing. It is an easy accusation to make about someone you have killed]

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  32. NOt1tocommentoften (436 comments) says:

    Put it away – try this counterfactual – it was as woman who grabbed your johnson?

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  33. Ruby (110 comments) says:

    Bloody homophobics.

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  34. Put it away (2,888 comments) says:

    Easy, if it was a woman you didn’t want grabbing your johnson, you could probably get rid of her with a good shove without needing to thump. With a a male, it’s is going to take a bit more force to make your point.

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  35. unaha-closp (1,154 comments) says:

    There is no proof there was any grabbing. It is an easy accusation to make about someone you have killed.

    There was circumstantial evidence suggesting it was highly likely to have occured.

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  36. Brian Smaller (4,036 comments) says:

    Easy, if it was a woman you didn’t want grabbing your johnson, you could probably get rid of her with a good shove without needing to thump. With a a male, it’s is going to take a bit more force to make your point.

    In the case mentioned in this thread, and other’s like this, where aging homosexuals get killed after making an unwanted sexual advance, I cannot help think that the affronted person must have been either thick or dishonest, about knowing why they went back to the aging homos place in the first place. I call bullshit on the defence of provocation in this case.

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  37. wreck1080 (3,842 comments) says:

    what is the argument against degrees of murder?

    I’ve only ever heard the positives.

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  38. Exclamation Mark (85 comments) says:

    XXX – where are you quoting that from? I hadn’t read that content anywhere else.

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  39. TripeWryter (715 comments) says:

    So, if you take away provocation as a defence, does that mean that a woman who stabs her abusive boyfriend/partner/husband cannot say that his taunts and his threats to whack me again made me do it?

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  40. BlairM (2,310 comments) says:

    Provocation and duress should be a factor in sentencing, but not a defence. If you mean to kill someone, that is murder and that is the end of it. If you mean to beat someone up and they end up dying, that is manslaughter. Both Weatherston and Ambach are entitled to make the case that stabbing someone 216 times/shoving a banjo down someone’s throat was not intended to kill their respective victims, but they haven’t. The intent to kill is obvious, they are murderers, and the provocation defence should not let them off of the charge.

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  41. IdiotSavant (88 comments) says:

    Could be coincidence, I guess.

    It’s a very obvious point, which illsutrates perfectly the double standard in play here. When a man makes an unwanted sexual advance to a woman – which is a regular occurance – it is considered justification for a polite “fuck off”, or possibly a drink-crotch ‘accident”. When a man makes an unwanted sexual advance towards another man, its suddenly justification for murder. Homophobia much?

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  42. NOt1tocommentoften (436 comments) says:

    Idoito – agree completely and would like to use your response to justify my comment to Andrei that these cases say homosexuals are worth less than heterosecuals.

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  43. Chuck Bird (4,817 comments) says:

    So, Blair look at this scenario. A drunken rapist breaks into a woman’s house and ties her up and rapes her. She manages to untie herself. In the meantime the rapist falls asleep. She could easily escape but instead get her husband’s gun and shoots him in the back of the head. Should she not be able to claim provaction and loss of control?

    There are answers to address this issue such as degrees of murder but we should not throw out the baby with the bathwater to satisfy some left wing militant homosexual MP who thinks he is mainly there to represent the homosexual community.

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  44. peterwn (3,232 comments) says:

    F E Smith

    Oops, I slipped with the 17 year minimum business.

    The ‘flow chart’ starts with ‘culpable homicide’. This ranges from death due to negligence through to ‘full’ murder (killing with intent to kill). If five criteria or so are met, it is murder. If it is mother killing young child through post natal depression etc it is infanticide (this is a fairly recent development). Anything else is manslaughter. Traditionally, ‘ordinary’ negligence sufficed, but ththe ‘negligence’ barrier was increased slightly several years ago (after an anasthetist was convicted of manslaughter after using the wrong drug when dealing with an emergency situation). Strictly speaking, motorists guilty of dangerous (or more serious cases of careless) driving causing death woud also be guilty of manslaughter, but the specific motoring offences were enacted because of the reluctance of juries to convict for manslaughter in some cases.

    It follows that where murder is downgraded to manslaughter because of provocation, ‘manslaughter’ is merely a label, with the real meaning of manslaughter being unaffected.

    Gay Oakes was an unsuccessful attempt to ‘extend’ the provocation defence and IMO is a compelling reason to repeal the defence.

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  45. unaha-closp (1,154 comments) says:

    It’s a very obvious point, which illsutrates perfectly the double standard in play here. When a man makes an unwanted sexual advance to a woman – which is a regular occurance – it is considered justification for a polite “fuck off”, or possibly a drink-crotch ‘accident”.

    And if these don’t work?

    What is the woman supposed to do?

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  46. Trevor Mallard (247 comments) says:

    At the risk of being accused of blog hiking or whatever the term is Charles Chauvel has his draft of a bill in Lianne Dalziel’s name up on Red Alert asking for feedback :- http://blog.labour.org.nz/index.php/2009/07/10/time-to-get-rid-of-the-partial-defence-of-provocation/

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  47. Inventory2 (10,230 comments) says:

    Actually Trevor, the term is “link-whoring” :-)

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  48. NOt1tocommentoften (436 comments) says:

    Trevor – the Law Commission did a report on this in 2007 and recomended repeal then. Why was nothing done at the time?!

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  49. Trevor Mallard (247 comments) says:

    Inv2 thanks for clarification
    NO2etc It was on the list of Justice Bills which is a pretty long one – the reason Charles/Lianne picked it was that it was a relatively simple concept with good research backing and therefore appropriate to pick up. Feedback of more depth than you are Labour it can’t be good/timely/helpful welcomed. Bit of a test for us on a process DPF suggested MPs should use. Then again if you don’t want to be constructive criticise me here or with the blowhole.

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  50. NOt1tocommentoften (436 comments) says:

    Trevor – I fully support Charles and his Bill I just get frustrated that something as important as this was caught up in the political game for so long and as a result someone like Ambach was able to get off a murder charge. More constructive from now on.

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  51. Chuck Bird (4,817 comments) says:

    I have read the draft the Trevor linked to. As I understand that murder is one of the few crimes with a minimum sentence. I thought that 10 years before parole was the minimum for murder although I believe Oakes was sentenced to 10 but got out after about 8 with some special deal and she was not allowed to campaign for the BWS.

    Does anyone with good legal knowledge know for sure if there was what many would call extreme provocation say someone sexually molested one’s children like happened not to long ago that if the had no provocation defence and were therefore found guilty of murder could they receive a sentence of less thatn life with a 10 year non parole period?

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  52. Rex Widerstrom (5,337 comments) says:

    Chuck Bird suggests:

    There are answers to address this issue such as degrees of murder but we should not throw out the baby with the bathwater

    I couldn’t agree more. Just because an idiot jury (possibly mis-instructed) accepts that “provocation” in Case A amounts to “he blew a kiss at me” doesn’t mean provocation in Case B – “he grabbed me and tried to rape me” is invalidated.

    Removing the defences available to those accused not only stops the obviously guilty benefitting but it also removes a legitimate defence available to those who deserve to be able to avail themselves of it.

    As for DPF’s concern that:

    the provocation defence [is] being used to slander the dead

    I see that as the flip side of the prosecution’s attempts to portray every victim as an inoffensive angel. Witness xxx’s report (a link to the original would be useful, xxx) above:

    Crown prosecutor Deborah Marshall said Ambach killed Mr Brown out of anger and revenge for his unwanted advances.

    Mr Brown was a friendly, likeable man who met Ambach at an Onehunga bar, she said.

    So Ms Marshall not only knows precisely what was in the accused’s mind at the moment he committed the act but also knows the victim was harmless and “friendly” despite what seems to be uncontested forensic evidence that something very strange had been going on that evening.

    If the defence are to be denied the unprovable claim of “he made me do it” then the prosecution should also be barred from presenting sheer speculation as fact – or indeed at all.

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  53. NOt1tocommentoften (436 comments) says:

    Chuck – interesting questions you pose there. If the partial defence was removed, changes should probably be made to the Sentencing Act 2002 (the Act that removed the mandatory penalty of life for murder).

    To begin with the Act creates a presumption of life imprisonment. This means that in the majority of cases, such a penalty will be handed down, but a judge does have discretion in certain cases in which he or she considers it ‘manifestly unjust’ to sentence a person convicted of murder to life. This could apply in a case for example where a son or daughter killed their elderly mother who was in the final stages of a terminal illness for example and was done on compassionate grounds (not that I am stating my beliefs here either way but this example is used at times.) If a person is sentenced to life, then the judge must impose a minimum period which must be 10 years. This of course means that no minimum needs to be set in those cases where a judge does not sentence a person to life becuase it would be manifestly unjust.

    Section 104 of the Act is also important and requires a judge to impose a minimum penalty of 17 year if one of a number of aggravting factors were present in the circumstances of a case. This provision is problematic for reasons I wont go into but it contains factors such as age and vulnerability of a victim, if the offence was committed in a particularly violent manner, etc.

    If the defence was removed, I suppose a judge could take the factro of provocation into account and use it as a basis for not imposing a minimum period but this would be a dangerous and indirect option.

    Hope this is somewhat comprehensible.

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  54. unaha-closp (1,154 comments) says:

    If provocation is removed – will the victim of an attempted rape be guilty of murder if the would be rapist dies?

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  55. Inventory2 (10,230 comments) says:

    Probably not unaha-closp, as there is still a defence of self-defence.

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  56. andrei (2,533 comments) says:

    Well there may have been a real travesty of justice here and not in the way NOt1tocommentoften and the other baying hyenas think.

    Amongst the other items of evidence found at the scene was Lorazepam, belonging to the victim, – a benzodiazepine and close cousin to the notorious date rape drug Rohypnol.

    Furthermore when arrested Mr Ambach exhibited signs and behaviour consistent with even suggestive of so called paradoxical reactions to this drug, which impairs memory and loosens inhibitions.

    Paradoxical effects: In some cases there can be paradoxical effects with benzodiazepines, such as increased hostility, aggression, angry outbursts, and psychomotor agitation. Paradoxical effects are more likely to occur with higher doses, in patients with pre-existing personality disorders and those with a psychiatric illness. It is worth noting that frustrating stimuli may trigger such reactions, even though the drug may have been prescribed to help the patient cope with such stress and frustration in the first place. As paradoxical effects appear to be dose-related, they usually subside on dose reduction or on complete withdrawal of lorazepam.

    This evidence was not widely reported but was given to the jury and damn it if the victim did dope the perpetrator with this drug, mixed with alcohol to have his wicked way with him … well what can you say.

    Alas nobody thought of taking blood tests until much later so we will never know for sure

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  57. unaha-closp (1,154 comments) says:

    Inv2,

    So remove the provocation defence, add in what andrei says and this guy probably walks on grounds of reasonable doubt and killing someone being a form of self defence against rape?

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  58. cha (3,913 comments) says:

    Anyone recall Doctor Minnett, the much younger wife teased him about his sexual prowess so he shot her. From memory Minnett left the bedroom to fetch an old .303, loaded it and returned to the bedroom and shot her. Provocation was his defense, he was found guilty of manslaughter and sentenced to four and a half years in prison.

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  59. NOt1tocommentoften (436 comments) says:

    Unaha – I don’t follow your reasoning – how would there be reasonable doubt? It would be a rare case where killing a person was self defence (though theoretically possible).

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  60. Trevor Mallard (247 comments) says:

    Yes I’m old enough and as I recall the minimum non parole period was 7 years for murder at the time. Maybe a combination of Charles/Lianne’s bill and a return to 7 might work. I think there are probably some other cases where 7 years is also appropriate.

    This does tend to reignite the degrees of murder debate.

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  61. capitald (72 comments) says:

    In these kinds of cases (Weatherston) I am strongly tempted to bring back the death penalty, in other ways, I realise that justice will be served in prison. Although I do not advocate rape or violence in prison, there are some times when it is difficult to give a shit that this guy is likely to get a good seeing to by a big boy called Bert who likes pretty boys.

    This guy does have some kind of serious, serious personality disorder – but I don’t see that as a defense. Most murderers (and yes, I’m calling this guy a murderer, and he can feel free to take me through the NSW courts – I’m Sydney based – for defamation if he likes, he will lose) have a fucked up background, some brain problems and little self control. That sounds to me to sound more like a reason to lock these people up for longer – not shorter.

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  62. Rex Widerstrom (5,337 comments) says:

    andrei notes:

    Amongst the other items of evidence found at the scene was Lorazepam, belonging to the victim, – a benzodiazepine and close cousin to the notorious date rape drug Rohypnol.

    The possible presence of benzodiazepines was also mentioned in the thread on Weatherston and I commented there also.

    If the report you cite is correct then you’re right, it could be a major injustice that Ambach was found guilty of anything. If ever there was a drug, the effects of which were precisely to diminish one’s responsibility let alone make you entirely unaware of what you’re doing, it’s benzodiazepines.

    One or two are calmative and make you sleepy. An overdose however, as you’ve pointed out, creates a monster who’ll harm themselves and others with no knowledge of what they’re doing. It makes someone on “P” look relaxed and sedated.

    How can there not have been blood tests taken when drugs of that nature were found?! Certainly the effect of benzodiazepine overdose is consistent with the way Ambach described flashes of violent recollection of the night in question.

    I assume that once again the Police arrived, made up their minds what had happened well ahead of the evidence, and proceeded accordingly.

    If I were Ambach’s lawyer I’d be commissioning a hair test, stat.

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  63. mattinnz (9 comments) says:

    Provocation as a defence is fine in some cases, but in this case it is not reasonable. He clearly was more than able to defend himself from this man and I’m sure he could have done so without killing him.

    It just seems as if there is a lack of common sense going into these decisions!

    It’s like people can just murder someone and fabricate a story to get the charges reduced.

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  64. capitald (72 comments) says:

    Overdose on Lorazepam and you will probably end up in a very deep sleep. You’d be lucky to be able to pick up a weapon, let alone actually be able to use it.

    Rohypnol has effects on memory that Lorzepam does not tend to be associated with.

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  65. capitald (72 comments) says:

    I would however add that if someone is addicted to Benzodiazepines (they are extremely addictive, and having taken it once during surgery I can understand why) may be very motivated to seek out more.

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  66. Rex Widerstrom (5,337 comments) says:

    capitald, you’re thinking of benzodiazepines taken as prescribed, in relatively small doses. This is possibly a situation in which an overdose was administered in conjunction with alcohol.

    One of the best investigations to date into the damage caused by the use and misuse of benzos was carried out by the Victorian Parliament in Austtralia. The full report (3Mb pdf) is available online.

    To quote the report:

    Misuse of benzodiazepines, especially when combined with alcohol, can create an increased risk of aggression and violence…

    …most of the adverse consequences of pharmaceutical drug misuse can be distinguished from the adverse effects of medical use of these drugs at the individual and community level. The exception to this is the impacts of benzodiazepines on aggression and violence – the so-called ‘Rambo effect’…

    Further evidence that flunitrazepam is associated with aggression and violence was found in the report of an Australian study investigating factors affecting young drug users’ completion or cancellation of parole…

    The Committee has also noted that there are dangers to community safety from impaired driving and increased risk of aggression and violence associated with these drugs.

    So a person overdosed on benzodiazepine (especially if combined with alcohol), can most definitely pick up a weapon and use it.

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  67. MyNameIsJack (2,415 comments) says:

    Gay Labour MP and former lawyer Charles Chauvel is spearheading a bid to …

    …he told the GayNZ.com website.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10583823

    What is wrong with homosexuals? Why don’t they like being called what they are, homosexual?

    Reclaim the word GAY – it is ours, it has a long useage and history. It does not belong to homosexuals and should not be purloined by them. End euphemism, call a spade a spade.

    Anything else would be, well, gay.

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  68. Chuck Bird (4,817 comments) says:

    What I find hard to understand is why Ambach’s lawyer has not made the issue of possible drugs public if the media decline to report it.

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  69. Chuck Bird (4,817 comments) says:

    I wonder if the Left would be happy to disallow the battered women’s syndrome as a defence. I was involved with father’s groups at the time Gaye Oakes murdered Doug Gardner. I met with Gardner’s relations and got a copy of the full trial transcript. This was a murder planned in advance involving other people. It is an outrage no one else was charged. I heard no calls from left wing homosexual MPs to not allow such a defence. As long as Labour has so many high profile homosexual MPs promoting homosexual causes regardless of their effect on the rest of society there is another good reason not to vote Labour.

    At least most of National’s homosexual MPs tend to steer clear of these homosexual issues and get on with the job they were elected for.

    If we are going to get rid of diminished responsibility on the grounds of provocation why do we not disallow diminished responsibility on the grounds pregnancy?

    There may possibly be some grounds for a woman killing her newborn baby immediately after birth. However, the law on infanticide allows this weak excuse for a child up till the age of 10 and the child does not have to be the woman’s. This can also occur for some time after she has given birth. You can imagine the hue and cry if women were not allowed to drive passenger vehicles for some time after giving birth.

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  70. cha (3,913 comments) says:

    Chuck Bird, Fagsmeller pursuivant has got a whiff of homosexuality.

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  71. ernesto (257 comments) says:

    The rationale behind the provocation defence was a concern that juries would not convict some people of murder because they felt sympathy for the provocation. This resulted in people being unjustly acquitted where the offence was not properly self defence in cases similar to Ambach’s. Doing away with the compromise verdict of manslaughter via provocation will lead to more acquittals in murder charges.

    If provocation was done away with people like Ambach would have a greater chance of pleading self defence. People like Weatherston on the other hand would be fu*ked.

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  72. Chuck Bird (4,817 comments) says:

    For similar reasons the death penalty would allow more guilty off. Not that there is a chance of it being reinstated.

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  73. GNZ (228 comments) says:

    I don’t think the answer is to remove the defense – that seems like a silly kneejerk reaction. instead you clarify what are ridiculous usages of the defense. One might me the weatherston case.

    In as far as it was used as a defense in a case regarding homosexual advances I think it just highlights the basic issue with juries that they tend to favour groups they can more easily identify with and disadvantage others. So Weatherstons lawyers try to tell you a story of his childhood and the lawyers using the gay advances defence were probably hoping someone on the jury didn’t know any gay people.

    The only real solution (besides reeducating the country) is to reduce the usage or influence of juries.

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  74. F E Smith (3,324 comments) says:

    Ernesto, you are wrong on two points and probably correct on one.

    The partial defence of provocation is an allowance of the fact of human emotion.

    Weatherston would have no chance of arguing self-defence.

    But if provocation is removed as a defence then you may well see juries acquitting of murder simply out of sympathy for the stress the accused was put under by the provocation. Of course, that assumes that the judge allows that evidence to go before the jury. If provocation ceases to be a partial defence then I would think that the judge would rule evidence of provocation to be inadmissible.

    GNZ, if you look at the older comments on the thread on provocation you will see the suggestion that some form of ‘date rape’ type situation might have existed based on drugs found at the deceased’s address. Never ever think the media even give you a partial understanding of what the evidence was. Unless you were there you just don’t know the nuances of what went on.

    I fail to see how re-educating the country would have any effect. However, reducing the use of juries in murder trials seems to be a bit extreme, simply because you don’t like the occasional verdict.

    Edit: Chuck, no allowance was made for any error when the death penalty was in place. The rules were pretty much the same as today. If anything, the balance was well in favour of the prosecution. That is why so many innocent people went to their deaths.

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  75. Chuck Bird (4,817 comments) says:

    F E Smith, maybe I did not make myself clear. I oppose the death penalty. Firstly, for the reason you gave innocent people will be executed. Secondly, juries would more likely let someone off because their is a shadow of a doubt not a reasonable doubt.

    You mention the media. Do you think their omissions would be slack reporting or a bias? If drugs were found this would cast the homosexual victim in a bad light.

    BTW – have you read what Associate Professor Bill Hodge had to say?

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10583858

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  76. F E Smith (3,324 comments) says:

    Chuck: Ah, I see. Fair points.

    I think the media are guilty of both slack reporting and bias. They are inherently populist as well, so being ‘anti-crime’ must be seen as a good thing. That translates to ‘all persons charged are guilty and the acquitted only get off on technicalities or through a dumb judge/jury”.

    I just read what Bill Hodge said and I agree with him. Even if Weatherston was to get a manslaughter verdict the sentence would be huge.

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