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.

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.

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.

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…

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.

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.

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.

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.

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.

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

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

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.

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…

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!