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Saturday 10 October 2009

Proclamations of the Red Queen

28th August 2009

The Provocation Defence in New Zealand: A Brief Legal History

Posted by: Craig Young

fp-crime.jpgAlthough New Zealand’s LGBT communities have primarily focused on the effect of provocation defence on mitigation of homophobic homicides, Section 169 of the Crimes Act has a specific legal and international history, which is summarised below.

In R v McGregor [1962], the Court of Appeal formulated a particular test that had to be met if a provocation defence was to succeed in mitigating a possible conviction to manslaughter. Characteristics of the offender would be relevant only if they explained why a particular word or act was ‘provocative’ for a particular defendant, and whether or not the provocative conduct was specific, significant and permanent in this instance. This test was restricted as being too restrictive and subjective, as well as related to only a narrowly defined set of offender attributes. R v McCarthy [1992] “resolved” this through broadening the list of relevant characteristics, loosened the causality requirement between act and subsequent homicidal incident, and allowed for transitory attributes. As one notes, this fits the requirements for defence arguments about transitory ‘homosexual panic’ from straight defendants.

R v Campbell [1997] involved a case in which a young man was allegedly a survivor of child sexual abuse and had a ‘flashback’ when another man laid his hand on his leg, allegedly triggering memories of his sexual abuse. The young man killed the other. As a consequence, the Court of Appeal held that even a seemingly ‘innocent’ comment or action may be more ‘provocative’ for particular offenders. Again, this is conducive to defence counsel appeals to homophobia in subsequent case law.

Finally, R v Rongonui [2000] seems to represent the current status of New Zealand law. As noted beforehand, Janice Rongonui was intellectually disabled and a former drug user. CYFS had threatened to remove her children from her custody, Rongonui’s neighbour refused to look after her children while she pled her case before CYFS and Rongonui then stabbed her to death. This benchmark case involved focusing on the relevant attributes of the accused as they reduced the ability to control one’s own actions. There were four steps to be taken in this context. Was there a relevant characteristic? Was an ordinary person able to be said to behave similarly with the characteristics of the accused? Was the provocation of sufficient impact or gravity?

In the latter, the Court of Appeal expressed frustation at the unwieldy and cumbersome aspects of the provocation defence and recommended its abolition. In 2007, the New Zealand Law Commission agreed with them.

What about overseas jurisdictions, though? As noted in my previous Politics and Religion articles on the subject, Victoria abolished its provocation defence due to the public outcry over the death of Julie Rammage, resulting in the Crimes (Homicide) Act 2005. In 2003, Tasmania  had abolished its provocation defence, in its Criminal Code Amendment (Abolition of Defence of Provocation) Act 2003. In the latter instance, it was noted that the provocation defence had produced substantially diminished sentence duration and severity for manslaughter, compared to murder (Tyne v Tasmania, 2005).  All other Austalian jurisdictions have provocation defence clauses within their criminal law statutes.

In Canada, Section 232 of the Candian Criminal Code provides a provocation defence, although the Canadian Law Reform Commission (Recodifying Criminal Law, 1987) and Department of Justice (Reforming Criminal Code Defences: Provocation, Self-Defence and the Defence of Property, 1998) have also recommended abolition.

By contrast, Ireland has a defence of provocation, which is entirely subjective as regards temperament, character and circumstances. However, the Law Reform Commission of Ireland (Consultation Paper on Homicide: The Plea of Provocation, 2003) has argued that offender charactertistics should be irrelevant to the question of self-control.  In Scotland, provocation defence is limited to “violent conduct” and “infidelity”… which, one imagine, must be strongly resented by feminist family violence prevention groups in that country.

In the case of England and Wales, as with New Zealand, the current status of provocation law is a mess, with the House of Lords and Privy Council apparently at cross-purposes. R v Campton [1978] involved a fifteen year old who killed a mocking same-sex rapist and in this context, it was held that age was relevant in consideration of the ‘reasonable person’, as was the gravity of the act in question.

R v Ahluwalia [1992] involved a battered spouse. She had been the victim of sustained spousal violence within her marriage, and after her husband had had an affair, threatened to mutilate her and demanded money, she doused him with petrol and caustic soda and set him alight. He died six days later.

R v Dryden [1995] involved a man with an intellectual disability. He was engaged with a planning dispute with a local council and used a firearm in that context. Objective medical evidence verified the relevance of that characteristic. He was also solitary, obsessive and in a poor state after his mother’s death.

In R v Humphreys [1995], an adolescent female sex worker (17) was being subjected to violence from her male partner (33). She self-mutilated and her unsavoury partner talked about a ‘gang bang’.’ When he sat on her bed without trousers, she feared that was going to happen and killed him. However, it was held that she was not a reasonable person due to her solvent abuse. Against this, though, R v Morhall [1996] ruled that solvent abuse and impairment of cognitive processes was relevant in the context of provocation defence.  To further confuse matters, Luc Theit Thuen [1997] raised questions about intellectual disability and partner infidelity after the abduction and murder of a former girlfriend. At present, the House of Lords and Privy Council appear to be at loggerheads over whether an objective or subjective test should be used in the context of provocation defence insofar as attributes of the accused are concerned.

It should also be noticed that under Section 2 of the Homicide Act 1957, the United Kingdom also accepts an objective test of “diminished responsibility’ for intellectually disabled and psychiatrically disabled defendants, which should be incorporated into New Zealand law in that specific context.


Brenda Madson and Wendy Ball: Butterworths Questions and Answers: Criminal Law: Wellington: Lexis/Nexis: 2004.

New Zealand Law Commission: The Partial Defence of Provocation: Wellington: New Zealand Law Commission: 2007

A.Simester and W.J.Brookbank: Principles of Criminal Law: 3rd Edition: Wellington: Thomson/ Brooker: 2007.

Tags: Politics

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