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Wednesday 14 April 2010

Charles Chauvel MP: Good riddance to the 'Gay Panic Defence'

Posted in: Features
By Charles Chauvel MP - 26th November 2009

In Parliament today, gay Labour MP Charles Chauvel blasted the ACT Party for wanting to keep a legal defence tactic which has led to lighter sentences for killers of gay men.

Labour MP Charles Chauvel
The Crimes (Provocation Repeal) Amendment Bill passed by 116 votes to five, with only the ACT Party voting against it.

Often dubbed the 'Gay Panic Defence', but known formally as the Partial Defence of Provocation, the provision in criminal law gives a killer an opening to claim that he or she was sufficiently provoked by the victim that he 'lost control', as any 'ordinary person' would in the circumstances.

It has been used repeatedly for decades by killers to claim that an alleged sexual overture by a gay man was sufficient to partially justify a sudden, brutal and deadly assault.

Reproduced in full, here are Chauvel's speeches in support of the successful Crimes (Provocation Repeal) Amendment Bill today as Parliament met in urgency.


Second Reading, Crimes (Abolition of Defence of Provocation) Amendment Bill

Charles Chauvel MP, Associate Spokesperson, Justice, NZ Labour Party.

The justice and electoral select committee has recommended that the partial defence of provocation should be repealed – a sentiment echoed by the vast majority of submitters on the bill – and one for which I have campaigned since long before I was elected to this Parliament.

There was a handful of submitters who raised concerns over repeal or supported the retention of the defence. I would like to use my call in this Second Reading debate as an opportunity to respond to their concerns.

Some submitters were concerned that certain marginalised groups of people would be unfairly disadvantaged by a repeal of the defence. Attention was specifically drawn to battered defendants – victims of family violence who kill their partners because they perceive that if they do not, they or their children will be seriously harmed –, and mentally ill or impaired defendants.

In the case of battered defendants, it was said that there needs to be some acknowledgement of lesser culpability for what would otherwise be labelled as murder. Some submitters felt that the defence of provocation was the best way to do this. I agree that it is inappropriate to label victims of family violence who are truly left with no alternative but killing as murderers, and that law reform is needed in this area. But retaining provocation is not the appropriate way to deal with this issue, because the evidence is that, in many cases, it works against battered victims.

Similarly, concerns were raised that defendants who are mentally ill or impaired would be unfairly disadvantaged by a repeal of the defence. However, as the Law Commission's report demonstrates, the use of the defence relies on the defendant's ability to display the self-control of an ordinary person before they are able to show that they lost that control. This means that defendants of reduced capacity simply do not fall within the criteria of those who are able to use the defence. If a group of people cannot use a defence, it can be assured than that its repeal will not cause them undue harm or disadvantage.

Another submitter – the New Zealand Law Society – opposed the repeal until such time as it is accompanied by the introduction of degrees of murder for diminished responsibility. I understand that this is the position that is also to be taken by the ACT Party today.

Before I address their arguments I would like to thank Simon Power for sticking with the form of the bill which Lianne Dalziel and I originally proposed, which repeals the defence without such a modification. Diminished responsibility, in a decent society, is not justifiable. Murder by lashing out is just as abhorrent as murder in cold blood. Murder out conducted in self defence or excused due to mental incapacity, automatism or insanity is covered already as legitimate defences recognise the differing levels of culpability evident in those particular situations. Futhermore, even if we were to replace provocation with diminished responsibility, we would still face the current problems of confusing jury direction and confusion legal tests which plague the defence currently that are inherent to the provocation defence. To do so is to argue for the replacement of one confusing area of law with an even more confusing one. This would be pointless.

I hope that for all the reasons outlined by all those who will speak in support of this bill today, it will continue on its speedy passage through this House. I believe that this bill is an important step towards a society where violence is condemned, where unremorseful killers are not given the opportunity to publically impugn their victims, and where the victims of crime can feel a little safer. I want to thank all those who have worked to make this Bill a reality. I include in this acknowledgement the Honourable Margaret Wilson, under whom I understand the original work of the Law Commission on this topic began, Law Commissioner Dr Warren Young, Elisabeth MacDonald, Claire Browning, Peter Williams and David Walsh, who were the personnel at the Commission responsible for the excellent report from that body dated September 2007.

Lastly, I want to remember those for whom this repeal comes too late. May they be the last to have their ordeals impugned in a court of law. Not one of their deaths is tolerable, and each of the victims whose killer has used the partial defence of provocation – successfully or not - stands as a silent witness to this reform. In closing, I want to pay tribute to their families and loved ones, who know that their lives were not lost in vain.


Crimes (Abolition of Defence of Provocation) Amendment: Third Reading Speech by Charles Chauvel MP, Associate Justice Spokesperson, New Zealand Labour Party.

Mr Speaker

It is said that hard cases make bad law. Tonight, we heard a new maxim from Rodney Hide and David Garrett – hypothetical cases, spun for electoral rhetoric, make for rotten politics. Let me recall 3 of the hard cases that illustrate the bad law we have now. Unlike what we heard in the speeches from the ACT Party, these are fact, not supposition – they are in fact the most recent ones where the defence has succeeded.

In the case of R v Ambach, earlier this year, Ambach beat Mr Brown to death with a banjo and then with the weight from a dumbbell. Ambach ransacked the downstairs of Mr Brown's home, - whether before or after the beating is unclear. The Police arrived, and found Mr Brown unconscious on the stairs with very serious head injuries, including the bridge of the banjo rammed down his throat. While detained in a police cell, Ambach manipulated a cut to his finger and heavily smeared the walls of the cell and his face with the blood. Police officers in attendance thought his injuries to be serious, owing to the amount of blood, and so took him to hospital. No other injuries (other than the cut to his finger) were found. In an interview the next day, Ambach was calm, and through an interpreter gave an account of the previous evening.

After he had been drinking with Mr Brown for a time, Ambach said that Mr Brown touched him on the thigh. Ambach said that he indicated that he was not interested in Mr Brown in a sexual way, and that he pushed Mr Brown's hand away. Ambach said that he then had another drink, and at some point Mr Brown went upstairs, turning the lights downstairs off. He called Ambach to come upstairs. Ambach claimed that he wanted to leave, but said he could not find a way out. Ambach claimed not to be able to remember anything after that.

However, later in his police interview, he said that he thought he went upstairs. In no clear sequence, he remembered flashes, including Mr Brown chasing him round a table, and Mr Brown throwing things at him. Ambach said that he then barricaded himself in, and claimed no memory of how he hurt Mr Brown. At trial, Winkelman J allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ambach was convicted, not of murder but of manslaughter, and sentenced to eight years in prison. The sentence, but not the verdict, is under appeal, but as with Lianne Dalziel and my comments throughout this debate, nothing I have just said bears on the sentencing appeal.

The case of R v Ali was one that I mentioned in my first reading speech on this issue, so I will not repeat its revolting facts here. I will record that, at trial, Williams J allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ali was convicted of manslaughter, and sentenced to three year's imprisonment.

In the case of R v Edwards, on the evening of July 20 2003, Mr McNee was driving a black Audi TT convertible along Karangahape Rd in Auckland. Edwards, in the company of two friends, noticed Mr Edwards' car. Edwards concluded that Mr McNee was looking for somebody to pick up. Having been released from prison ten days earlier, (he had some 50 previous convictions) he had no money, and so he jumped into the car when it stopped at the nearest traffic lights. Edwards said that he concluded a bargain with Mr McNee to perform sexually in his presence for $120. Mr McNee said his home was nearby, and, as Edwards needed a shower, they went there. Following his shower, Edwards went into the main bedroom. According to Edwards, after some sexual contact between the two men, he got to his feet, and started hitting Mr McNee with his fists: in court he admitted to striking Mr McNee between 30 and 40 times. Edwards said that he felt 'very angry', and that everything became a blur after the first couple of blows.

When Edwards stopped beating Mr McNee, Mr McNee was on the floor and there was blood everywhere. Edwards, then made off with items of Mr McNee's property. At trial, Frater J allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Edwards was convicted of manslaughter, and sentenced to nine years' imprisonment.

Each of these 3 cases over the past 6 years shares four disturbing features:

  1. The account that we are left with of the events in question is inevitably that of the killer. The killer goes out of his way to besmirch the character of the victim, portraying him as sexually predatory, and therefore deserving of the agonising death meted out to him. Grotesquely, the voice of the victim is silenced, and substituted for the only surviving witness: the person who stabbed, beat or otherwise brutalised him to death;
  2. Aspects of the evidence indicate dishonesty on the part of the killer. Ambach's and Edwards' alleged blackouts, and Ambach's smearing of blood from a flesh wound; Ali and Edward's theft of their victims' property after killing them; Ali's wiping of fingerprints from a crime scene and selling of his victim's property – these are not the actions of people with a propensity to tell the truth – their claims of blackouts during which they experience uncontrolled rage – the essence of the provocation defence - just don't ring true;
  3. Horrific violence inflicted in the killing. In Ambach's case, a banjo bridge was found rammed down the neck of his victim. In Ali's, a stabbing 5 times. In Edward's, 30 or 40 blows;
  4. A High Court Judge, in each instance instructing a jury, letting each killer get away with murder by allowing a manslaughter verdict, in each case to a man who claimed to be the unwitting victim of a sexual advance from another. Uncontrolled rage led to a reward – a lesser verdict – in circumstances where more controlled anger or violence would have seen the killer penalised with a more severe verdict.

Mr Speaker, the overwhelming majority of submitters to the select committee supported the abolition of this outdated and discredited defence. The Law Commission was right to recommend its repeal. My colleague Lianne Dalziel was right to introduce a member's bill, which I was glad to draft for her, to abolish the defence, and she was right to graciously withdraw that bill to allow Simon Power to advance the Government's decision to progress repeal. It is wrong for the ACT Party, which masquerades as the liberal Party, which masquerades as the champion of victims' rights, to be the only group in this House to oppose repeal. It is an insult to the victims of violent crime, but it shows that Party's true colours. They vote today, Mr Speaker, to continue to sanction a defence that legitimises violence against gay men, and against women. Shame on them, but having heard the ACT contribution, we can understand the coded message being sent about which New Zealanders' lives, and whose New Zealanders' votes, are worth more than others', in their estimation.

Congratulations to the rest of this House for moving to take this Dickensian defence off the statute book by the end of today.

Charles Chauvel MP - 26th November 2009

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