New Zealand Law Commission Recommends Abolishing Provocation Defence

The Law Commission of New Zealand released a report last Friday entitled The Partial Defence of Provocation that recommends the repeal of Section 169 of the Crimes Act 1961. That section allows for the use of provocation as a "partial defence" in murder cases.

The report does offer some interesting comparative analysis as it goes into detail about how the provocation defence has been dealt with in the United Kingdom.

"There is a widespread view that the present operation of section 169 is unsatisfactory. Twelve out of the 16 Crown Solicitors supported repeal. The defence bar (which is adamantly opposed to repeal, on the basis that partial defences perform a useful and necessary function in the criminal justice system) nonetheless wanted the partial defence framework to be reformed, to either include more partial defences, or replace provocation with a partial defence that is broader in scope. Senior members of the judiciary have repeatedly expressed dissatisfaction with the defence in appellate judgments".

"Amongst mental health professionals, there was virtually universal recognition that provocation benefits very few defendants who are mentally ill or impaired. The same was true for women’s groups considering the defence from the
perspective of women generally and battered women in particular (...)".

"In other contexts, too, the negative social effects of the defence were noted. An example of this, which has occurred all too frequently in recent years, is its use to partially excuse intentional killing in response to a homosexual advance (...) "

Crown prosecution files show that during a five-year period, provocation was successfully relied upon in only four out of 81 murder cases. Two of the four – half – were so-called 'homosexual advance' or 'homosexual panic' cases.

Sir Geoffrey Palmer, Law Commission President, is quoted as saying: "More broadly, and more importantly, intentional killing in anger in any circumstances is inexcusable. Section 169, as interpreted by the courts, requires the defendant to have demonstrated the self-control of an ordinary person. But even when very angry, no ordinary person responds to any provocation by deliberately killing. That is an extraordinary and inexcusable response."

The Law Commission recommends that evidence of any alleged provocation should be weighed with other aggravating and mitigating factors only as part of the sentencing phase.