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Saturday 10 October 2009

Provocation Indefensible

Posted in: Comment
By Craig Young - 27th August 2009

Parliament gave unanimous support to the first reading of the provocation defence abolition bill, with some warning signs from ACT's David Garrett.

Mr. Garrett appears to be under the misapprehension that the provocation defence works. Granted, it may have started out with honourable intentions, namely to mitigate charges of homicide to manslaughter in circumstances of legitimate provocation. As the Law Commission noted in its report back in 2007, however, there are grounds for concluding that it has either failed to do so, acted to produce injustices for some particular categories of victims, and failed to protect potentially vulnerable defendants, who may seek defence under other statutes.

As the Law Commission Report explained it, the provocation defence as currently understood consists of whether a hypothetical reasonable 'man' (sic) would consider victim actions to be 'grave' or 'sufficient' enough to warrant a mitigated manslaughter penalty, rather than an intentional homicide verdict, and resultant murder sentence. As I've noted beforehand, Australia's Victorian State Parliament abolished its provocation defence when Jamie Rammage used it to get off murder charges after killing his wife Julie, merely because she was having a post-seperation relationship with another man. In New Zealand, as the Law Commission noted, primarily, it is similarly used to mitigate the outcomes of homophobic homicide cases.

However, two groups of potential defendants need to be mentioned here. These are (i) bona fide intellectually disabled and mentally ill defendants and (ii) battered spouses. In the first instance, the Law Commission appears to favour a defence of 'diminished responsibility' in such limited circumstances. I agree, and would restrict such a defence to such rare instances, especially if evaluated by amenable professionals to be so affected at the time of offence. In the second instance, battered spouses now often available themselves of Section 28 of the Crimes Act.

In New Zealand, the current benchmark case is R v Rongonui, which was heard before the Court of Appeal in 2000. Janice Rongonui was an intellectually disabled former substance abuser who believed that CYFS might be about to take her children away. Ms. Rongonui pleaded with her neighbour to care for her children while she visited the agency, but the neighbour refused. Ms Rongonui then stabbed her neighbour to death. In this context, the judges accepted the provocation defence's applicability, although voiced misgivings about the limitations of subjective perception, and questioned whether or not it met the needs of defendants with bona fide intellectual disability or mental health problems.

No, Mr. Garrett, the provocation defence is not working. Fortunately, legitimately impaired defendants can use other defences, so let us use those, and not continue to treat one category of victims as somehow more worthy than others.


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

Craig Young - 27th August 2009

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