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From GayNZ.com

Features
It's time to change the partial defence of provocation
By Christopher Finlayson MP
27th November 2007 - 12:47 pm

National MP Chris Finlayson
The Law Commission has recommended that Parliament reform the legal defence of provocation, which allows for the infamous gay panic defence... allowing anyone accused of violence against glbt folk to claim that, for instance, even a chat-up attempt is reasonable grounds for beating the crap out of a gay man. Or worse.


GayNZ.com asked gay lawyer and National list MP Christopher Finlayson to consider the proposed law review.


Introduction

The law of provocation is unsatisfactory. It is anything but straightforward.  Section 169(2) of the Crimes Act 1961 provides that anything done or said may be provocation, if in the circumstances of a case it was sufficient to deprive a person having the self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control. This may be interpreted in a number of ways. In New Zealand, jurors are instructed by a trial judge to assess the gravity of the provocation of the particular defendant, taking into account all his or her characteristics on a scale of 1 to 10. Having thus determined the gravity of the provocation, they must then decide whether a person with ordinary self-control would have lost that self-control in the face of provocation of such gravity.


Previous reform attempts

There have been a number of attempts to reform this area of the law over the last 20 years.  In 1989 the Labour Government introduced a Crimes Bill one of whose reforms would have both abolished the crime of murder (replacing it with a crime of culpable homicide) and the defence of provocation. The Bill did not proceed because of the amount of criticism by members of the legal profession, the judiciary and various commentators. In 2002 the issue came back again, this time in the context of battered defendants. The most recent attempt at abolition has been proposed by the Law Commission in its report numbered 98 released in September 2007.


Reasons for reform

Those in favour of reform say:
The current law is inherently flawed;
It is very complex;
It is subject to contrasting interpretations;
It does not fulfil its policy purposes.


Arguments in favour of retention

These include:

The importance of the criminal law to recognise a degree of culpability short of murder;
The fact that comparable jurisdictions still offer a provocation defence; and
The potential practical problems of addressing provocation at the sentencing stage.
Those in favour of retention support reform of the defence, but so as to broaden its scope.


The report of the Law Commission

The Law Commission has made two recommendations about reform:

First, the Commission thinks judges should deal with provocation issues at the time of sentencing, aided by a sentencing guideline.  The defence of provocation would then be abolished by the repeal of section 169. In other words, a defendant could not rely on provocation as a defence at time of trial; rather evidence of provocation in the circumstances would be weighed with other aggravating or mitigating factors as part of the sentencing exercise after conviction.

Secondly, the Commission thinks the Sentencing Establishment Unit should draft a guideline for use by trial judges. This unit was established earlier this year to provide sentencing guidelines for judges. The Commission thinks this issue should be given priority to ensure that a draft guideline is available in time to assist those who are contemplating repeal of section 169.


Where do I stand on this issue?

As a general proposition, I am increasingly unhappy at this government’s piecemeal approach to law reform. The most recent attempt, for example, to reform the Copyright Act 1994 has run into trouble. The Bill is now languishing toward the bottom of Parliament’s Order Paper whilst the government works out what it can do.  In the last few months, Parliament has also repealed laws on sedition. Whilst I was in favour of repeal of sedition laws, I think the opportunity should have been taken to look at sedition in the context of other crimes against public safety or public order.  

I am persuaded by the Law Commission’s report that this area is ripe for reform but that Parliament should not try to consider the issue before the Sentencing Establishment Unit produces a guideline on provocation as part of its initial work programme.  I understand this work may be completed some time next year.

My personal preference would be to have a comprehensive review of Crimes Act 1961 notwithstanding the magnitude of the task. As I have said, the Act is overdue for a proper comprehensive study.

I think the Law Commission has done a good piece of work on the partial defence of provocation. I support looking at the issue of reform once a guideline on provocation has been prepared by the Sentencing Establishment Unit.  


- C F Finlayson

[Editor's note: gay Labour MP Charles Chauvel, also a lawyer, has also stated his agreement with reform of the legislation]


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