Raeburn on provocation
Jenna Raeburn blogs:
It utterly irritates me that the provocation debate has been almost entirely subsumed by the Weatherston case. There are three massive problems with this.
The Weatherston case has been the catalyst for change, but for my own part I have been supportive of a law change for some years since the McNee case.
Everyone has forgotten about the better, more philosophical justifications for removing the defence. In my mind the biggest issue is the assumption that, given a high enough degree of provocation, any ordinary person might resort to homicidal violence. This is a fundamentally flawed conception of human nature and is no basis for distinguishing levels of culpability.
Bravo. And then she addresses those who argue just for a change:
The second major issue is that the defence is inherently discriminatory. It does not provide protection to those who are not considered to have an “ordinary” level of self-control. Worse, it provides homophobes, misogynists, racists and other bigots with an excuse to murder the subjects of their hatred. This is exacerbated by the fact that the legal tests are such a complicated mix of objective and subjective factors that juries never understand it. None of this can be fixed simply by “changing” the defence – these are inherent issues, so it has to be scrapped entirely.
And then the cases before Weatherston:
We have also forgotten about the other many victims who have been defamed by murderers pleading provocation, and the many cases where the defence has absurdly been successful. Why didn’t the Ambach case cause the same outrage as Weatherston? It was barely reported, and yet it is twenty times as outrageous because Ambach was actually successful. The McNee case was very similar, and is also largely forgotten despite having more publicity.
Those interested in more info on these other cases could read a good article at Salient by Conrad Reyners on this.
I think the McNee case was outraegous. Even if his killer Edwards was heterosexual, that would be no reason for him to kill McNee, but Edwards frequently slept with men for sex – in fact he tried to blackmail several of them. This violent thug just conned the jury and got manslaughter instead of murder. The problem with the provocation partial defence is it encourages people to try and defame their victim.
People are calling the abolition of provocation a knee-jerk reaction to the Weatherston case. I cannot believe the sheer numbers of people I have noted expressing this belief over the last couple of days as this has all made the news again. This is the one and only thing that inspired me to write a post about what essentially ought to be a non-issue. It ought to have been so since Rongonui at least. A change has been on the cards for years, especially since the Law Commission report in 2007. Anyone who believes this is all about Clayton Weatherston should read it.
I think the Weatherston case has been a catalyst for MPs. It has meant the law change has happened quicker than otherwise would have been the case. But again I agree that the need to change the law has been apparent for many years.
October 22nd, 2009 at 4:08 pm
David
Isn’t that the great thing about a democracy.
I don’t agree with you and think this is a knee jerk reaction.
It doesn’t give me faith in either Parliament or the Judiciary.
Remember I’m a beater of children according to the same people.
October 22nd, 2009 at 4:17 pm
DPF – this is a great piece. What makes me laugh about all the comments that this is knee jerk is that they are knee jerk themselves. If they did some research they would see the Law Commission has recomended the repeal of the defence in two cases, both the report listed above, and earlier in a report on battered woman. Numerous academics have called for the defences removal too. Hell, we’re hardly novel in our approach by repealling this baby. What’s a shame here is that it took a bastard like Weatherston to come along before the government decided to do anything. Principle counts for little apparently…
October 22nd, 2009 at 4:20 pm
I disagree with her for a number of reasons, as do most of my colleagues who act in criminal jury trials.
However: “We have also forgotten about the other many victims who have been defamed by murderers”
Just like the case DPF blogged on at 2.57pm, where the accused said that the deceased was acting so dangerously that he had to shoot him dead in self-defence/defence of others. This attack on the dead man was made without him being around to defend himself, just like Robin Bain wasn’t around to defend himself, just like the deceased in the Ambach case was not around to defend himself…
Why can’t we get it into our heads that a jury trial is not about the deceased/complainant. It is about the accused person. We are trying to determine if they should be held criminally liable for a particular action and in those circumstances it there is no reason to get all prissy about who is or is not there to defend themselves. There is a reason why barristers are immune from defamation suits for submissions made in court, and that is to allow a full and robust case to be made on both sides.
After all, the Crown was busy calling Mr Gundry a murderer, which is terribly defamatory thing to say…
“It provides homophobes, misogynists, racists and other bigots with an excuse to murder the subjects of their hatred.”
This is just rubbish. We do hear from LGBT groups over the use of the defence in the so-called ‘homosexual advance’ cases, and perhaps that is fair enough. But to my knowledge it is not used, at least not successfully to defend misogyny, racism or other bigotry at all. Perhaps Jenna could provide some examples from NZ cases? I haven’t got my copy of Adams to hand at present.
“This is exacerbated by the fact that the legal tests are such a complicated mix of objective and subjective factors that juries never understand it.”
Fair point, although as I told Nickb the other night, in practice it really comes across as a subjective test. That said, if Jenna gets hold of the bench book explanation for provocation or sits through a summing up or two in the High Court on (I presume she isn’t a criminal trial lawyer) then she will see that it can be explained relatively clearly to the jury. Having sat through a couple of provocation addresses from judges where I have been directly involved in the case, I can say that both judges seemed to do a good job of making the test clear.
They must have, because we got provocation verdicts both time.
“In my mind the biggest issue is the assumption that, given a high enough degree of provocation, any ordinary person might resort to homicidal violence. This is a fundamentally flawed conception of human nature and is no basis for distinguishing levels of culpability.”
Interestingly enough, I disagree. And might I point out that I have the weight of a couple of hundred years of criminal law practice and the opinion of numerous judges and criminal lawyers (both defence and prosecution) from all around the world supporting me on this one. There are times when ordinary people with an ordinary level of self-control lose that power of self-control and do things they would never do. Some on Kiwiblog have described walking in on a child being abused etc. and that is a good example. To assume that we are all able (or should be able) to hold our self-control no matter what is, in my view, to misunderstand human nature. We are not super-human and the law must make allowance for that from time to time. After all, “distinguishing levels of culpability” is what the ‘degrees of murder’ argument is exactly about and we all seem to be keen on that idea. Based on this thesis we should also remove the conduct of the victim as being a relevant issue in sentencing.
The cases described in that article are about ‘gay panic’ defences. That is merely one use of it and it is misleading to say that it is a representative use of it. It is just that those uses get publicity.
The other point, of course, is that most people assume that provocation requires an allegation of some outrageous act by the deceased in order to be claimed. It doesn’t. The focus in a provocation defence is on the accused, not the deceased. Obviously there will be something that the deceased did that the accused found provoking, but it need not have been intended to be provoking (just look at Rongonui) nor need the deceased person have even known it was provoking the accused.
Don’t forget, that in EVERY case in which provocation is put before a jury a High Court judge MUST find that there is an actual evidential basis for it. It cannot be claimed at the whim of the accused.
While it is good that Ms Raeburn is blogging, I don’t think this post of hers focuses on the popularly held concept of provocation rather than the actual legal concept and, even more importantly, the actual application of it.
Edit: N1TCO: I have read the Law Commission reports and discussed it with my academic colleagues often. I still disagree with them. With all that, I definitely would not consider my position to be a ‘knee-jerk’ one.
[DPF: With the other case you refer to, I note there are a large number of witnesses as to what happened. This is not a case where one person kills another with no witnesses, and invents a defence of provocation]
October 22nd, 2009 at 4:22 pm
DPF: “have been supportive of a law change for some years since the McNee case.”
McNee was not a provocation case. Another popular myth.
The McNee killing was almost certainly a case where the jury found Edwards guilty of manslaughter because of doubt about him having the intent to kill required for murder. This is the most common reason for juries preferring manslaughter over murder convictions, and is not at all surprising in a case like McNee’s where the attack was limited to punches (as compared to kicks or blows with a weapon from which clearer intent to ill can be inferred).
You have shown how many people believe such myths, along with the myth that battered women can bring themselves within the self defence laws requiring imminent attack.
[DPF: You are wrong. The Court of Appeals notes "This is a case where the
verdict of manslaughter may have been reached on the basis of provocation or lack
of murderous intent. Both defences were run at trial. In circumstances such as these,
it is for the trial judge to determine which is the more likely explanation for the
jury’s verdict. The judge should give reasons for his or her conclusion: R v Byrne
[2003] 1 CrAppR(S) 338 at [12]-[16]. Frater J did that in this case. She identified
provocation as “the more likely reason for the verdict”: sentencing notes at [39].
Neither Mr Edwards nor the Crown disputes the judge’s conclusion on that matter.”
I would have thought you would check a case out before you assert something so easy to rebut]
October 22nd, 2009 at 4:29 pm
Removing this defense leaves a huge gaping hole in the law. Consider the following example: A father walks into his daughters room to see a man raping her. The father apprehends the rapist who tries to flee, then proceeds to beat the rapist to death. This is a valid scenario that justifies the provocation defense.
Although the current law is flawed as homophobea doesn’t seem to me to be justifiable, people must remember that if what Weatherston said was true, then the defense was appropriate. Fortunately, the jury didn’t believe him and found him guilty. The fault of Sophie elliot having her name tarnished really lies in the fact that the press was allowed to publish the details.
Provocation is a justifiable defense in some circumstances… and the governments response is knee jerk.
[DPF: One can always conceive extreme possibilities. As far as I know, in NZ, no parent has ever walked in a a rapist and killed them. However people like Edwards did escape a murder rap by using this defence.]
October 22nd, 2009 at 4:37 pm
“The other point, of course, is that most people assume that provocation requires an allegation of some outrageous act by the deceased in order to be claimed. It doesn’t. The focus in a provocation defence is on the accused, not the deceased. Obviously there will be something that the deceased did that the accused found provoking, but it need not have been intended to be provoking (just look at Rongonui) nor need the deceased person have even known it was provoking the accused.
Don’t forget, that in EVERY case in which provocation is put before a jury a High Court judge MUST find that there is an actual evidential basis for it. It cannot be claimed at the whim of the accused. ”
Excellent post FE, and I think this bit of it is the most important, and the part that most lay people do not realise. It is not provocation in the ordinary, dictionary sense, but in the legal sense, such as with insanity.
This confusion I believe led to a large part of the furore after the Weatherston trial, people misunderstanding the nature of the defence. If the defence is done away with, there will be nothing to recognise the fact of human nature that certain things said ir done can sometimes push one over the edge and make them lose control. To simply say “oh but the judge can take it into account in sentencing” does not sit easily with me, knowing there will now be such a massive range of culpability and moral blameworthiness involved in the crime of murder.
FE, what has the response been to the law change in the criminal bar, law societies etc?
[DPF: How often, if ever, does a Judge not find an evidential basis for a provocation defence?]
October 22nd, 2009 at 5:22 pm
DPF: “I would have thought you would check a case out before you assert something so easy to rebut”
I don’t need to, I was there and heard the last three days of the case. And you are wrong, not me. The defence spent about thirty minutes on provocation and about three hours on lack of murderous intent. The Court of Appeal didn’t notice that. And to rely on Justice Frater having properly anylaysed the decison is completely naive. It was her first ever murder trial having just taken the High Court bench. Before that sher had a Family Court warrant and before that had been a staff solicitor. In other words, the McNee case was the judge’s first exposure to criminal proceedings in her entire career. Being a High Court judge doesn’t make ones view sacrosanct.
Most importantly, Edwards’ counsel accepted the finding strategically as the appeal against sentence had more legs if it was against manslaughter by provocation than lack of intent because provocation could justify the severity, while lack of intent could not: see below
“The judge regarded as relevant the severity of Mr Edwards’s attack on Mr McNee. Mr Wade submitted that that was erroneous, as the jury’s verdict indicated that they were satisfied that Mr Edwards had lost the power of self-control as a consequence of Mr McNee’s provocation. Mr Wade’s submission was that it was inappropriate to inflate the sentence in circumstances where the appellant was acting under provocation, that provocation being sufficient to deprive a person, having the power of self-control of an ordinary New Zealander, of the power of self-control.”
If Mr Wade accepted lack of intent, which every experienced counsel knew was obvious, he would not have been able to make that argument. So, a strategic decision not indicative of the truth.
AGAIN… the McNee killing death was a textbook lack of murderous intent homicide… no gay panic but that doesn’t suit your cheerleading for Sophie’s Law.
[DPF: Oh I love your arrogance. The Judge is wrong. The lawyers had motivations. The Appeal Court know nothing, the dozens of media reports citing provocation - they are all wrong. You are the only one right.
I'll be blogging tomorrow more on McNee, quoting the Court of Appeal.]
October 22nd, 2009 at 5:24 pm
[DPF: How often, if ever, does a Judge not find an evidential basis for a provocation defence?]
Much more often than not.
[DPF: Can you cite something to back that up. Maybe the names of a dozen or so cases where the defence tried for provocation but the Judge ruled it out]
October 22nd, 2009 at 5:26 pm
“[DPF: With the other case you refer to, I note there are a large number of witnesses as to what happened. This is not a case where one person kills another with no witnesses, and invents a defence of provocation]”
Does the assault on a deceased person’s reputation mean less when there are numerous witnesses? Commenters in the previous thread are saying it was clearly a case of self-defence, but if that is the case then why is the defence counsel saying that it was proper for it to go to trial? Why didn’t the police just come to that conclusion and not charge? Because nothing is as clear cut as it seems. So just because there are some witnesses or no witnesses, the deceased was still unable to give his explanation yet was subject to an attack on his character.
My point is, of course, that we are too precious about such things. The criminal justice system is a tough place to be for all concerned and there is no real way to make it softer for anybody without running the risk of regular and serious miscarriages of justice.
I can’t comment on Ambach, because I am not aware of the evidential basis made out by the defence to allow the issue of provocation to be put before the jury, but Weatherston certainly not ‘invent’ a claim of provocation. There is a clear mental health (or personality, if you prefer) issue that was potentially directly relevant to the issue of provocation. Effectively it meant that Sophie Elliot was going out with a time bomb IF the NPD was bad enough. The psychiatrists in Weatherston’s trial weren’t willing to say it was quite that bad and the jury rejected the defence.
But the defence wasn’t invented. It was clearly put to the jury with medical evidence from NZs foremost forensic psychiatrists. Those guys weren’t guns for hire who were willing to say whatever the defence wanted them to. They regularly give evidence for the Crown and defence and are highly respected in the field of forensic psychiatry.
It was an horrendous attack by a manipulative and unpleasant individual, but his defence was not ‘invented’. As I said, Ambach I cannot comment on.
October 22nd, 2009 at 5:27 pm
“[DPF: How often, if ever, does a Judge not find an evidential basis for a provocation defence?]
Much more often than not.”
I can confirm that as being correct.
Edit: “I don’t need to, I was there and heard the last three days of the case. And you are wrong, not me. The defence spent about thirty minutes on provocation and about three hours on lack of murderous intent. The Court of Appeal didn’t notice that. And to rely on Justice Frater having properly anylaysed the decison is completely naive. It was her first ever murder trial having just taken the High Court bench. Before that sher had a Family Court warrant and before that had been a staff solicitor. In other words, the McNee case was the judge’s first exposure to criminal proceedings in her entire career. Being a High Court judge doesn’t make ones view sacrosanct”
Stunning comeback! I can also confirm that defence counsel will often not argue when judges get things wrong in sentencing if doing so will harm their client. Riling a sentencing judge isn’t the smartest of ideas.
October 22nd, 2009 at 5:39 pm
Further to the first part of my comment immediately above: defence lawyers will often be met with a claim of provocation by their clients in killings made in heated circumstances, but many times we make a proper review of the evidence, reject the idea of running provocation and advise our clients that they should not run it as will not be successful. Even if there is a chance for provocation to be made out, often when the trial is underway it becomes clear in the course of evidence that it just won’t fly.
Trials are very fluid creatures and it is very hard to predict just how they will go before they happen.
I think there is also a real misunderstanding of how defence lawyers approach the defence of their clients in this country. We don’t just grab on to every possible defence going and hope one works. We review the evidence as disclosed by the police and as related to us by our client and we advise our client on what we consider to be the best course of action. Often cases will have most of the evidence accepted by the defence because the legal issue is small or only addressed by a small part of the evidence. Most criminal cases in this country take mere hours, not days. In fact, my quickest defended hearing from opening statement by the prosecutor to decision by the judge is 12 minutes. For a defence win, mind you!
Murder cases are given a huge amount of thought by defence lawyers. Remember, Boston Legal and most other American TV law shows are totally fictitious, and in fact are responsible, in my view, for a slight ‘CSI effect’ with regards criminal trials.
NickB: uniformly against, by the way.
October 22nd, 2009 at 6:11 pm
FES: “Stunning comeback! I can also confirm that defence counsel will often not argue when judges get things wrong in sentencing if doing so will harm their client. Riling a sentencing judge isn’t the smartest of ideas.”
Thanks. It is just such a problem when supposedly intelligent people are prepared to swallow judge’s words as though they are the gospel not requiring any form of critical analysis.
[DPF: You are holding your opinion as superior to both the trial Judge, the Court of Appeal and both prosecution and defence counsel who all said manslaughter was due to provocation.
And your original comment stated opinion as fact, and you got caught out. You said "McNee was not a provocation case. Another popular myth."
I suggest you don't invent things in future. If you want to say "I believe the McNee manslaughter verdict was not because of provocation, even though it was used as a defence, and even though that was the official finding of both teh trial Judge and the Court of Appeal, then say so.
But you just stated your opinion as fact. And more to the point how do we even know you were in that court? I would not normally challenge integrity, but you are the one who stated McNee was not provocation which was misleading and deceptive]
October 22nd, 2009 at 6:14 pm
TBH I think this is what happens when you put monkeys in charge of the Ministry of Justice. Mark Burton, Annette King, Simon Power… Would Chris Finalyson get any input in these kinds of decisions? He seems a far higher calibre of lawyer.
F E Smith, you should run for Parliament. F E for Justice Minister!
October 22nd, 2009 at 6:16 pm
FES: “Trials are very fluid creatures and it is very hard to predict just how they will go before they happen.”
There is an old truism that every jury trial is a lottery, which to one degree or another is true.
October 22nd, 2009 at 6:24 pm
I came on here ready to run through a whole lot of explanations as to why the article DPF promotes is quite flawed, but I see I don’t really need to. Others above, particularly FE Smith and ernesto, have quite eloquently rebutted things.
Having spoken to the leading academics in the country about this issue recently, they are almost completely unified in their opinion that abolition of the partial defense (without any accompanying reform such as a defense of diminished responsibility or degrees of murder) is extremely problematic, ill-thought out, and somewhat political in nature. Almost all thought the Law Commission got it right in terms of flagging that change was needed, but got it somewhat wrong in their earlier recommendations (in terms of advocating abolition without properly considering alternatives).
I think it is clear change is needed, as there are clear problems in the use of the defense, but total abolition sans further reform does smack of a political move by the Government, rather than a comprehensive or authentic attempt to truly tidy up this tricky area of law.
October 22nd, 2009 at 6:36 pm
Not1tocommentoften: “Hell, we’re hardly novel in our approach by repealling this baby.”
You’re right in that some other countries have repealed/don’t have provocation-type partial defenses. However most of them have some other type of ‘diminished responsibility/diminished capacity’ defense, or degrees of murder, to cover the fact that all intentional/reckless killings are not the same, and should not be treated the same (in terms of the crime charged/convicted).
Also, there have been problems in some jurisdictions (e.g. Australian states) where they repealed provocation, and all the issues surrounding victim besmirchment etc continued, just shifted into a different guise. So the repeal didn’t have the desired effect, and could leave other gaps in the law which will be even more problematic in future.
Doesn’t sound like a very smart/efficient move….
October 22nd, 2009 at 6:39 pm
Agnes Moorhead:”…Would you want to spend your life packed in with six hundred other desperate, squawking, smelly creatures, unable to breathe fresh air, unable to move, unable to stretch, unable to think?”
Sir Humphrey: “Certainly not, that is why I never stood for Parliament.”
Thanks, Nick, but no thanks!!! I did think about it when I was younger but now I like to have a real and worthwhile job
Ernesto: I agree. It also is interesting that some people are willing to accepts judge’s remarks when it suits their position and reject them when it doesn’t. Just like jury verdicts. Ted Thomas has written an interesting article on the role of academics in critiquing judicial decisions in (I think) the most recent NZULR. Well worth a read, despite my view that Thomas got things wrong as often as he got them right when he was on the bench. No doubt, though, that he was very good at legal analysis.
Edit: kiwicraig: “Also, there have been problems in some jurisdictions (e.g. Australian states) where they repealed provocation, and all the issues surrounding victim besmirchment etc continued, just shifted into a different guise. So the repeal didn’t have the desired effect, and could leave other gaps in the law which will be even more problematic in future.”
Which is, of course, what the defence bar has said all along! I would have thought we would be the ones best placed to predict it but nobody seems to be listening.
October 22nd, 2009 at 6:50 pm
“Which is, of course, what the defence bar has said all along! I would have thought we would be the ones best placed to predict it but nobody seems to be listening.”
Unfortunately some of that may be to do with the fact that politicians/MSM/many in the public (wrongly) see the Defense Bar as completely self-interested, and not wanting to remove one of their ‘tools’ to ‘get killers off’.
Complete poppycock of course, but unfortunately certain segments of society have done a tremendous job at maligning defense counsel (who are an integral part of a well-run justice system, and if anything arguably one of the most key cogs in the judicial wheel, in that they stand up for the individual against the power of the state) and creating a seemingly widely-held public perception that is nowhere near the reality in terms of the vast majority of defense lawyers….
Just look at every time the complex issues surrounding Legal Aid are brought up, what the ‘angle’ of almost all MSM stories always are…
Btw, for those wondering, yes I have been a lawyer. But no, I was never a defense counsel.
October 22nd, 2009 at 7:11 pm
[DPF: Can you cite something to back that up. Maybe the names of a dozen or so cases where the defence tried for provocation but the Judge ruled it out]
There have certainly been quite a few from what I have seen, off the top of my head I can remember R v Anderson, R v Stingel, R v Lee Chun Chuen, R v Erutoe, R v Smith, R v King to name just a few.
October 22nd, 2009 at 8:41 pm
Wow, comment-mauling of Jenna!
I have posted up my responses – too long/many to leave here. Thanks esp to F E for your thoughts
October 22nd, 2009 at 8:59 pm
Excellent posts above.
I skimmed through the Jenna R’s response but when she signed off with “More comments are invited, though I could care less by now. Yawn.” I concluded she is a twit not worth bothering with.
October 22nd, 2009 at 9:05 pm
You’re certainly impassioned and strident in your beliefs about this subject Jenna.
I’ve pulled a comment from your response in your blog across to here, because as you say, you might get more comments here: “But for me the major reasons for repeal have little to do with the victim, and are more about a) discrimination, and b) the idea that losing control of the brutal murderous intent lying dormant in all of us, is a supportable justification.”
Those are actually very good points, although I think the majority of the people in favour of the abolition of the partial defense are more concerned with (or up in arms because of) the besmirchment of the victim that sometimes happens with its application.
In terms of (a), discrimination – as I’ve acknowledged above and in another Kiwiblog post, there are certainly flaws in the partial defense, and it has been used at times (successfully or unsuccessfully) in situations that many of us find inappropriate – particularly by men to partially excuse the killing of another due either to sexual rejection (e.g. Weatherston) or unwanted homosexual advance (Ambach and several others).
This is a good reason for some legislative change, as several legal experts, and those of us on this blog have acknowledged. The bigger question is whether complete abolition of the partial defense is the best change (especially if there is no consequent reform to address other situations that are perhaps more palatable to society)? I think change is needed, but either a reform of the partial defense, or abolition with introduction of either diminished capacity/responsibility or degrees or murder is far better than abolition sans other reform. There are many reasons for this which have been outlined already.
In terms of (b) – this is a very good point that few have really used as an argument against provocation. It is arguably a better argument against the partial defense than some of the ones being used widely in the MSM etc.
I would say a couple of things – the partial defense of provocation does not fully justify intentional killing (use of the “brutal murderous intent lying dormant in all of us” as you put it), at least in terms of the killer does not ‘get off’, as so many have framed the argument. They are still found culpable of killing (manslaughter), and can still receive a very stiff sentence that can even be close to a murder sentence (depending on the circumstances), e.g. Ambach got 8 years – so the state isn’t saying what he did was right or justified – he still committed a crime.
However there is a recognition that someone who is “provoked” by extreme circumstances is not the same as a cold-blooded killer. The big problem is that it has been used too many times in a few highly-publicised cases where the circumstances weren’t really that extreme, and shouldn’t have driven someone into a rage (hence people think it’s just being used post-fact to ‘justify’ murder).
However, I think it is important to recognise that not all intentional/reckless killings are the same, and that there should be interim steps between completely blameless (acquittal) and the worst crime in the land (murder) in certain circumstances – the removal of the partial defense of provocation removes our last partial defense in this country – meaning that all intentional killings are somewhat zero/sum now…
having something in between the highest murder charge and acquittal for intentional killings (e.g. 2nd degree murder, or a partial defense such as provocation or diminished capacity) allows society to say that the killing was unjustified, that the person should be held responsible, but that there were some circumstances (not necessarily the circumstances in which is has been used previouslY) that means the person shouldn’t be convicted of the exact same crime as our worst cold-blooded killers.
I perhaps haven’t elocuted this particularly well here, but feel free to read the linked article, which has a lot of great comment from some of our country’s leading legal experts in this area: http://www.nzlawyermagazine.co.nz/Archives/Issue121/121F5/tabid/1976/Default.aspx
October 22nd, 2009 at 9:07 pm
I hear you Alan.
Having been bested by the withering argument of a (commercial) law student (?) who is obviously going to be a great loss to the criminal law, I am picking up my club and going back to my cave…
October 22nd, 2009 at 9:15 pm
FES, no doubt if Rommel had succeeded in killing Hitler, Jenna would still be arguing that he should not have had a provocation defence, though probably had Rommel been a Jew DPF may have had a change of heart on the issue.
October 22nd, 2009 at 9:16 pm
If only my law lecturers were as articulate as yourself F E.
Are the various law societies making (or have made) any submissions against the repeal bill?
October 22nd, 2009 at 9:24 pm
I think the Law Society was against it, Nick. If you look at their website ( lawsociety.org.nz ) it should be up somewhere there. I am not sure I am as good as you might think, but I am fortunate that my profession is also my hobby. Makes me a very sad and boring person in real life!
Alan, I reckon the Law Commission would say that Rommel could argue it was simply a pre-emptive strike in self-defence/defence of another!
October 22nd, 2009 at 9:30 pm
Here is the Law Society submission:
http://www.lawsociety.org.nz/__data/assets/pdf_file/0016/12418/CrimesProvRepealBill.pdf
In summary, the Law Society believes that although it is problematic, the partial defence of provocation should be retained pending the development of other forms of defence (which could include for example dimished responsibility or degrees of murder).
It’s funny, I hadn’t read or even looked at this, but it seems to nicely sum up some of what myself, ernesto, and FE Smith etc have been saying here – that we can’t get so caught up in the reasons the law needs SOME reform that we ‘throw the baby out with the bathwater’, so to speak – because this will just lead to other problems down the track…
These things need to be approached by the Government in a better, more comprehensive, and holistic way… plucking out the partial defence of provocation is piecemeal and ill-thought out (if well-intentioned) reform of our law on culpable homicide…
October 22nd, 2009 at 10:09 pm
How about rather than resorting to argumentum ad hominem or plain old sophistic appeals to your claimed authority, the people in this thread actually respond to what is being proposed?
Jenna’s well thought out argument is simply that provocation shouldn’t be fixed because people who kill because they “snap” should always be culpable of murder, or in other words, that the Law Societies first reason for opposing the abolition of the partial defence is wrong.
Her reasons, which have never been addressed:
1) Society should not excuse those who, having full volition, kill out of rage, or a loss of control: such conduct is morally reprehensible in all circumstances. You can try to imagine situations where that doesn’t apply, but those are usually contrived, or will be so extreme that juries will acquit regardless of the law. This needs to be about the ‘run of the mill’ provocation cases, one that I agree should be treated simply as culpable cases of murder.
2) Provocation is impossible to moderate in application, hence the trend towards abolition across jurisdictions. It is an avenue for the excuse of harmful conduct based on bigotry and hatred.
3) It results in the besmirching of victims, something that yes, occurs in other ways, but also a factor that should be considered in the balancing exercise.
Jenna’s post was never an attack on criminal lawyers, it was simply a justification of the abolition of the defence based on criteria it seems no one here is willing to debate in anything approaching an intellectually honest way, as evidenced by the snide remarks and appeals to one’s own authority, rather than any policy or logical grounds.
October 22nd, 2009 at 10:29 pm
DPF, this is completely off topic (although still law related) so I hope you will allow me:
Craig, I am just reading the Law Society’s submission on the Legal Aid Review. It is dynamite. As you may know, I have often criticised the Society for failing to properly represent those members who provide legal aid services but in this submission they have come through with all guns blazing in a fantastic bit of work that lets the LSA and other associated parties have it with both barrels. I formally tender the Law Society my compliments on it.
Given your position I thought you might have a look, if you haven’t already.
http://www.lawsociety.org.nz/publications_and_submissions/new_submissions
October 22nd, 2009 at 11:00 pm
FES is correct. Criminal trials are about justice – ie: whether there is NO reasonable doubt that a person is guilty of a crime. ALL considerations should be secondary to that question. This is the State at the most coercive – the inequality of arms between defence and prosecution is already stark (in favour of prosecution) do we really want to make the test “beyond reasonable doubt unless it might be rude to someone?”
If there is support for the laudable aim of keeping the lives of victims private then look at suppression orders, removing cameras from court but don’t remove defences or further bind the arms of defence counsel
October 23rd, 2009 at 5:09 am
That article by Conrad Reyners is just…fantastic. He seems amazing. Glad to see this awful piece of law being repealed.
October 23rd, 2009 at 7:17 am
[DPF: One can always conceive extreme possibilities. As far as I know, in NZ, no parent has ever walked in a a rapist and killed them. However people like Edwards did escape a murder rap by using this defence.]
I would argue that laws should cover extreme possibilities. But even then, consider this less extreme scenario… a person lunges at you with a weapon with the intent to seriously injure you or worse, you disarm the person and proceed to beat them to death… is that not a case of provocation? Without the option of a lesser degree of murder then the partial defense of provocation should exist for cases like that. From what I can see, that is the defense that Weatherston tried, and he failed to convince the jury of the truthfulness of his defense. But if he did tell the truth then he would be not guilty of murder which would be the right result. I believe the jury got it right and this scumbag deserves to be in prison.
October 23rd, 2009 at 7:44 am
As I’ve said before, the best answer that would address with the recent examples while preserving provocation where it is needed, is to change the law so the provocation has to be a serious criminal offence.
If a woman is beaten repeatedly by her partner and kills him in his sleep, she should avoid a murder conviction and the associated minimum period of imprisonment. If I was on the jury and manslaughter was not an option I would rather let her go free than convict her of murder.
October 23rd, 2009 at 7:48 am
> The problem with the provocation partial defence is it encourages people to try and defame their victim.
And you think that will cease with a law change? The fact is that there will be mitigating factors which can be raised before sentencing. Provocation will be one such factor. Instead of being provoked, maybe the defendant will say that he was being attacked and tried to defend himself, or he feared for his life, or he was threatened by the victim, or what have you. Ultimately it remains the jury’s job to decide the facts and rule accordingly.
October 23rd, 2009 at 8:47 am
“If a woman is beaten repeatedly by her partner and kills him in his sleep, she should avoid a murder conviction and the associated minimum period of imprisonment. If I was on the jury and manslaughter was not an option I would rather let her go free than convict her of murder.”
That should not be grounds for provocation, it is murder. That is a case of cold, calculated murder, she could choose to leave him, and if she fears for her life then she can go through the appropriate channels to protect herself. Provocation should only exist where any normal person could lose all self control.
October 23rd, 2009 at 9:20 am
Richard D, actually I think the points have been addressed, but to take yours individually:
1. You entirely dodge the issue, which is that there may be more than one morally reprehensible action and contributor involved in the incident. Just as in compensation judgments, the actions of all parties must be considered.
2. Utter rubbish. Courts have been moderating it for centuries.
3. Irrelevant to the need to hear and balance all evidence. If the accused’s conduct is to be judged then so must that of other parties. It is up to the prosecution to bring balancing evidence to counter any unfair criticism of the accuser or deceased.
October 23rd, 2009 at 9:39 am
FE Smith – interestingly I have been looking at that NZLS submission on Legal Aid the past couple of days – you’ll see something about it on the front page of NZLawyer magazine’s next issue…
October 23rd, 2009 at 9:45 am
Actually RichardD, several of us have specifically addressed the changes being proposed. I also specifically addressed Jenna’s response. Either you haven’t read this entire thread (which I can understand, as it has got quite long), or you just choose to ignore this because it doesn’t suit your viewpoint.
I don’t think anyone is saying that provocation is perfect in the way it has been used in some high-profile, attention-grabbing cases in the past – most of us seem to agree that change is needed. The bigger question is whether complete abolition, without any other reform of the area, is the best change. For a number of very well-reasoned, well-researched, well-evidenced reasons, it is probably not. This is the point several are trying to make. I for one am not arguiing that provocation should be allowed to continue where it is used to justify “flying into a rage” on the basis of bigotry or prejudice.
Unfortunately some concentrate so much on this clear flaw in the sometimes-application of the partial defense that they seem unwilling to address a number of related issues. Fortunately those such as Alan W, ernesto, and particularly FE Smith are willing to discuss and consider those other issues.
After all, we don’t want to create a situation where we just need more piece-meal law change in future…
October 23rd, 2009 at 12:29 pm
Excellent re. front page of NZ Lawyer. Only the best cases and submissions end up on the front page!
October 23rd, 2009 at 4:11 pm
Imagine a fictititious case where you are the mother of a young woman who was screaming in her room . You bash the locked door open and find someone astride your daughter repeatedly stabbing her (say 200+ times). You pick up a heavy or sharp object and kill him with one sharp and decisive deliberate blow.
You are not acting in self defence. You were not stopping him from killing, that had already happened. Were you provoked? Too bloody right. What defence would you have from a murder or manslaughter charge? What would be the difference if the police came round and you said that you meant to kill him. Of course you did.
October 23rd, 2009 at 4:37 pm
Er, sorry, I’m pretty sure you could successfully plead self-defence in that case (self-defence extends to defence of another person). If it was only one blow, and you did it to protect your daughter, I don’t see why self-defence would fail.
October 23rd, 2009 at 6:40 pm
Evasion, Jenna. The daughter is already dead. The killer is leaving. Your idiotic law wants to convict the mother unconditionally of murder. The jury will simply spite you and your idiotic law by acquitting.
Your opinion is that no-one can use provocation as a partial defence to murder. (Or anything else? Why just murder?) My opinion is that your knowledge of human nature is seriously deficient.
October 24th, 2009 at 2:24 pm
If the daughter is dead, that fact is absolutely clear to you (very unlikely), and the killer does not appear to be posing any threat whatsoever to you (very unlikely), and not posing a threat to anybody nearby (very unlikely), sure, you won’t successfully get away with self-defence. That is a totally contrived scenario, and in almost all cases like this self-defence can step in and fill the gaps.
If self-defence doesn’t cover your actions, then you have killed someone deliberately and of your own volition, whilst you did not perceive them to be a threat to you. I don’t believe that the “loss of self-control” to that point is an ordinary human phenomenon. Obviously the circumstances would be taken into account in sentencing. But that kind of “life for a life” vigilantism ought still to bear the label of murder, no matter how despicable the person you killed.
October 24th, 2009 at 7:34 pm
Jenna, “almost all” doesn’t cut the mustard when we are changing the law.
I don’t care what you believe. The rest of the world is not going to convict and uphold your law. When you are older you may understand why.