Hon TIM GROSER (Minister of Trade) : I seek leave for the Committee on the Crimes (Provocation Repeal) Amendment Bill to take the bill as one question.

The CHAIRPERSON (Lindsay Tisch): Is there any objection to that course of action? There is none.

Hon LIANNE DALZIEL (Labour—Christchurch East) : The Crimes (Provocation Repeal) Amendment Bill is a very important measure that the Committee is debating tonight, and I think it is a shame that members do not have a unanimous position on it. I think that that would be respectful to those who suffered throughout the trial of the Sophie Elliott case. I find it incredible that the one example that has been brought to the House as a reason for voting against the passage of this bill is a case that did not occur. It is the “case” of a close relative of Sophie Elliott coming into the room as she was being killed and expecting that a particular response—seeking to defend the life of a sister, in that particular case—would not fall within the definition of self-defence. In that entire contribution no mention was made of Ronald Brown. Ronald Brown died at the hands of somebody who said that Ronald Brown had approached him in a manner that was a homosexual advance, and that he was so affected by this approach he felt that it was within his right to claim the defence of provocation against a charge of murder, and he claimed that defence for himself. Mr Ambach was found guilty of manslaughter, not murder. I find it incredible that anyone can stand in this Chamber and put a hypothetical story ahead of the real case we have had played out in our courts. It was not on our television screens in the way that the Clayton Weatherston case was played out, but it was a case that happened pretty much at the same time. We saw the provocation defence being used.

I think what members—perhaps only a few—have overlooked is that provocation is only a partial defence. The partial defence existed when murder attracted either the death penalty or, subsequently, a life sentence, as the only mechanism for showing society’s abhorrence for the action that had been undertaken. For a person’s intentional taking of someone else’s life, society said that that person’s life would be taken—an eye for an eye, a tooth for a tooth, or whatever the expression might be. The death sentence was the original sentence for murder. That was replaced in this country—and I cannot recall the exact date off the top of my head—with a life sentence for murder. [Interruption] I cannot remember when the death penalty was replaced with a life sentence, but I believe it was in the 1960s. In 2002 a further step was taken, and that was to remove the obligation on the court to impose a life sentence if a murder conviction was entered. That was to recognise that there would be circumstances where the intentional taking of life would be proved, but the imposition of a life sentence would not produce a just result.

I heard the chairman of the Justice and Electoral Committee, Chester Borrows, use the example of the individual who entered into a suicide pact with his wife. That was a tragic, tragic case. The suicide pact was a two-way thing. It was effective for the taking of his wife’s life but was not effective in his own case. He survived his suicide attempt even though he had assisted his wife’s suicide. In that case he pleaded guilty to the charge of murder. He had intentionally taken the life of his wife. There is not a Court in this land that would have felt comfortable with imposing a life sentence on somebody in the tragic circumstances that played out in that particular case. So the court exercised the discretion that it now has under the Sentencing Act and imposed a sentence of 18 months, with leave to apply for home detention. That was an acceptable way of saying that there was a difference in such cases.

My deep and abiding concern about leaving this issue to a jury is that we invite jury members to put themselves in the place of the person who has been accused. We invite them to apply every prejudice that they might hold against the person who has provoked the individual. Nothing justifies the acceptance of provocation. I have felt very angry with people on occasions, but not so angry that I would want to take their lives. I cannot imagine a circumstance where I would be so angry. I have noted before that, when a lot of the feminist literature about the subject of the provocation defence was written back in the 1980s as a response to Dr Minnett killing his wife Leigh Minnett, many headlines changed the word manslaughter to “mans laughter”. The two words of course join to form the word manslaughter. The point was that it seemed that the characteristics of the reasonable expectation around self-control, and what would breach that self-control, applied only to men in those circumstances; they certainly did not apply to women.

In fact, women were far more likely than men to end up in front of the courts accused of the murder of their spouse or partner than men were. They would be far more likely to do so in what the court might consider to be a far more considered and cold, calculating fashion, because obviously the respective strengths of a man and a woman are different. Often, the woman’s response took the circumstances a little more into account. For example, in the case of the woman who took her husband’s life while he lay sleeping, the court accepted fully in that case that she was the victim of domestic violence, that she had been subject to severe threats, and that those threats had been made not only to her but also to her wider family. There are other instances where women have not been able to rely on the defence, because of the method of responding to the fear that they have felt. Nothing excuses the level of provocation that has been claimed in the cases that have been played out in the media over recent times, either.

Historically, this defence has had its time. Those who say that we are debating this legislation in Parliament now because of the two cases that we had in front of the courts over recent times actually have not bothered with the history of this defence. The Law Commission came down very, very clearly on two occasions for the repeal of the defence. The issue went back to the Law Commission for the second report because there was a concern about battered women’s syndrome and about people with mental impairment. There was a concern that, in actual fact, in the kind of defence where we would expect provocation to play a role, the defence had not been able to be used by the very people whom the Law Commission was concerned about. The Law Commission took a lot of time to do the research. I know that we have the figures in front of us somewhere that detail the number of successful uses of the provocation defence over the 5-year period that the Law Commission looked at. In 2007 it found that provocation was successfully relied upon by very few defendants. Crown prosecution files showed that during the 5-year period provocation was successfully relied upon in only four out of 81 murder cases.

So the defence really is an anachronism now, and it is time for it to go. I think it is unfair to use a hypothetical example arising out of a tragedy, when we know that the effect of having that defence there led to that particular family having to listen to things about their daughter that, in fact, nobody could get up and refute, because the only person telling the story was the one who had silenced for ever the other witness to the events in that room that tragic day. So I believe that we owe it to the families—not just of the recent cases, but also of the ones that have gone before—to them to act in unison in this Parliament and remove the defence. The reason for the defence has gone—it went with the death penalty and it went with the automatic life sentence—and it is time that we leave this matter to the judges. We are inviting juries to substitute their prejudices for law. That is what the Law Commission said, and I believe that it is absolutely vital that we take this opportunity to act as one and remove the defence that should no longer be on our law books.

JACINDA ARDERN (Labour) : I want to go back to the hypothetical situation that was set out by the Hon Rodney Hide, then followed up by my colleague Lianne Dalziel. I feel that Rodney Hide gave a disingenuous presentation of the way that a situation like that would currently be dealt with in our criminal justice system. I would be loath to leave the public or anyone else believing that when the Justice and Electoral Committee reviewed this repeal we felt that it would in any circumstances give rise to situations such as the scenario painted by Rodney Hide, where a family member who retaliated on seeing a family member murdered would be landed with a 17-year prison sentence. That is not the kind of scenario we would see, given the way that the Sentencing Act 2002 is currently drafted.

The reason I find his presentation disingenuous is that l would be very surprised—I do not know for sure; I would like some clarity from Rodney Hide as to the way ACT voted on the Sentencing Act 2002—if, in fact, ACT supported the level of flexibility that was purposely drafted into the law to allow for the very scenarios that he is painting. I would be very pleased to hear Rodney Hide speak again during the Committee stage to clarify his party’s position on the Sentencing Act 2002, which I think deals with the very issue and the very concerns that he has raised as a consequence of the repeal of the partial defence of provocation.

I will go over the parts of the Sentencing Act that would deal with this situation. Section 102 sits under Subpart 4 of Part 2. I referred to it in my previous speech. It sets out that although there is a presumption in favour of life imprisonment for murder, “An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.” I think the situation and the circumstance that Rodney Hide set out would, by any layperson’s reading, fit the criterion of being “manifestly unjust”. Indeed, further on in the Sentencing Act a number of explicit criteria are set out; when the imposition of a minimum period of imprisonment of 17 years or more would be required, there are a series of mitigating factors that, again, explicitly exclude the kind of scenario that Rodney Hide has set out for the Committee. So I think it is misleading to claim that this repeal could give rise to that kind of scenario. Chester Borrows, the chair of the committee, set out the case of someone involved in a suicide pact. At the time of the Sentencing Act discussion and debate, examples were frequently used of elderly couples and euthanasia. Again, those are situations where that threshold of “manifestly unjust” is very likely to be reached. I invite Mr Hide to explain to the Committee whether ACT supported the Sentencing Act 2002, and, if it did not, to explain how he reconciles his two differing positions on those provisions.

I will also dwell briefly on another point, which also was touched on by my colleague, and it is around the idea of battered defendants who are mentally ill or impaired. Some submitters presented to the committee in defence of use of the partial defence of provocation by defendants who are considered to be battered. The phrase “battered wife syndrome” was raised a lot in the select committee. My colleague has already pointed out that in cases where this partial defence has been used, it has been highly unsuccessful. So the argument could be raised that even if a defence is necessary for those particular circumstances, this defence is not it, because it has not worked for those groups of defendants.

The majority of the select committee concluded that it would be more appropriate for most of those defendants to rely on the defence of self-defence. I would add one qualification to that. There was quite considerable discussion in the select committee as to whether self-defence was a useful or successful defence for those particular defendants. A lot of people working in that particular sector—domestic violence, in particular—pointed to a number of scenarios and examples of battered women for whom we might consider it would be appropriate to argue self-defence, but the minds of a jury may perceive self-defence as the kind of defence that would be used if a woman retaliated after an immediate act of violence or felt herself under an immediate threat. They made the point to the committee that that does not fit with the psychology of battered women, and that there perhaps is a disconnect between what we see as the characteristics and behaviour of battered women and a jury’s perception of what constitutes self-defence. We did not reach a conclusion as a committee as to how we would appropriately deal with that particular problem and that disconnect. The only conclusion that we came to—on Labour’s side of the table, in particular—was that it was the exact kind of situation where we would be inclined to ask a Sentencing Council to consider where it would be most appropriate for these kinds of women to look in terms of their defence, given their situation. That is another reason why it is disappointing that the Government has removed the idea of a Sentencing Council, and has used all of the funding for it for the administration of a costly and potentially unsatisfactory offender levy.

I am pleased, though, that we are finally repealing the defence of provocation. The scenarios that have been painted by other members of the Committee are adequately covered, I think, by existing law. Again I invite Mr Hide to explain to the Committee his position on the Sentencing Act 2002.

CATHERINE DELAHUNTY (Green) : I will take a very brief call in support of the Crimes (Provocation Repeal) Amendment Bill because Kevin Hague is not here to do so and I know that he was very, very passionate in support of this bill. Without being a lawyer, I appreciate the comments of the lawyers in the Chamber who have spoken about this bill from the point of view of evolving law. I highly support the comments of Lianne Dalziel about the use of discretion being maybe a heavy burden on judges, but it is preferable to an outdated mechanism such as the provocation defence.

When talking about the evolution of law I am thinking back to my earliest memory of kneeling in front of the radio the night that Parliament voted out capital punishment. My father was standing there virtually crying with joy because he campaigned against hanging in this country. One of my earliest memories of political participation was seeing what he went through and how happy he was that the law had evolved. I am thinking also about when I was travelling through Ireland and it was described to me that a gypsy was found stealing something from a farm in Ireland and was killed by the farmer with a fork. The defence was provocation, not because the gypsy had attacked the farmer but because the Roma—the travellers—are regarded as less than human. Therefore, the Irish judicial system had accepted that provocation was acceptable. The farmer was able to get away with killing somebody, simply because of who that person was.

I think about homophobia in this country and how it is still alive and well. I still hear young people, particularly young males, speaking in a homophobic way constantly about the idea that if anyone should approach them, that would easily provoke violence in them. I think we have a long way to go when it comes to addressing these things, which is why this bill is really important. We are removing a risk that that can be used against a person such as the victim of a homophobic murder.

We have come a long way. We have only to think about the Ku Klux Klan and how they have justified ethnic cleansing, and all the other stereotyping and violence that has been used to justify the murder of innocent people right across the planet. Battered woman’s syndrome is another example of how the law has evolved.

That is what we are here to do—to help the law evolve in a way that will be fair and just, and allow the courts to exercise due discretion and wisdom. I am sorry that Kevin Hague is not here to speak more eloquently. I know he did at the first reading. But the Green Party is pleased to support this bill and pleased to see so much unanimity around the House about it. We will be delighted to see this bill progress into law, for the sake of all the people who have been unjustly killed simply because they were different from the violent offenders who took their lives. Kia ora.

DAVID GARRETT (ACT) : I start by acknowledging my colleague Catherine Delahunty, and more particularly my colleague Kevin Hague, who spoke to me about the Crimes (Provocation Repeal) Amendment Bill some weeks ago. I have thought about it, and our caucus has thought about it. I have just walked into the Chamber, as you know, so I am not entirely aware of what has gone before me; members will forgive me if I am repeating what has already been said.

Nobody could be comfortable with the success of provocation defences in the case of Mr Ambach and in the case of—to cite the victim’s name—David McNee. I will start with him. That case was an example of a rent boy who was hired by Mr McNee to perform a service. His defence was that the terms of the contract, if you like, went way outside the boundaries, so he panicked and killed Mr McNee. I cannot remember the name of the offender; somebody will remind me, no doubt.

Charles Chauvel: Edwards.

DAVID GARRETT: Edwards, yes. If I had been on the jury—and I never have been and never will be, because I am a lawyer—I would have found a great deal of difficulty accepting that an experienced rent boy who had agreed to do x could suddenly become beset by panic when he was asked to do y back at the contractee’s flat. However, 12 ordinary people selected at random from the community accepted that defence.

Before I came down to the Chamber, I heard the Hon Lianne Dalziel speaking. She said, and I have the same information, that of 81 murder cases over the last 5-year period, the defence was offered in 15 and was successful only four times. Lianne Dalziel said that that was evidence that the defence had done its dash. I am sorry, but by my logic it is evidence of exactly the opposite. It is evidence of the fact that the defence will be rarely argued and even more rarely successful. I am sure that other speakers—including, probably, my leader—have noted the Weatherston case that everyone is talking about. I am afraid I do not accept that it is merely coincidence that we are debating this bill 6 months after the Weatherston case. Everyone seems to have forgotten that in the Weatherston case the defence was offered and it was unsuccessful. Twelve ordinary people listened to that swine of a man offer as a defence for mutilating and killing that young woman that he had been tormented beyond belief, beyond endurance, and had killed her.

Hon Lianne Dalziel: They didn’t believe it.

DAVID GARRETT: That is right. They rejected it.

Hon Lianne Dalziel: So what about Ronald Brown? Mention him.

DAVID GARRETT: Ronald Brown was the victim of Mr Ambach. Is that right?

Hon Lianne Dalziel: That’s right.

DAVID GARRETT: I say to Ms Dalziel that if I was on that jury, I would have had a great deal of trouble with that verdict. From what I know, and you were not there either, as you very well know—

The CHAIRPERSON (Lindsay Tisch): Order!

H V Ross Robertson: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): I know what the member is going to say. I ask the member to sit. The Chair cannot be brought into the debate.

DAVID GARRETT: I am well aware of what Ms Dalziel is going to say. The only people who heard all the evidence of that case were the 12 people of the jury who sat through the entire trial. We stand to one side, read the newspaper, and listen to the television, and I have the same reaction as Ms Dalziel. I wonder how this could be. This does not read well. This was a younger man with a much older man—stronger, one would think—but those 12 ordinary people sat there and they accepted that defence.

I understand that my leader has already offered one hypothetical example based on the Weatherston case, so I will offer another one. Late in life, I have become a father. It has been the most wondrous experience of my life. Looking around the Chamber, I do not know on that side or this side who are parents and who are not. But certainly speaking for myself, it has been an incredible change in attitude. It might sound a bit soft, and I do not really care if it does, but I would die for my children. I hesitated whether to even raise this in the Chamber, but every father has the fear of coming upon their child either in the process of being molested or having been killed. Let us hope and pray to God that that never happens to any of us here. I would like every member in the Chamber tonight to think about how they would feel and react if they came upon such a scene. If I came across my little Charlie, aged 4, being interfered with or worse, I do not know how I would react.

I suspect that I share the feeling of most, if not all, parents in this Chamber that we do not know how we would react. We may literally go off our nuts, to use the vernacular. Should it not be the case that the defence of provocation is decided—is adjudicated upon—by 12 ordinary people taken from, let us say, this Committee? We range in age, in sex, in profession, and in education. This Committee is as good as any as a sample. I would rather my fate be decided that way—in fact, at the risk of sounding melodramatic, I probably would not offer the defence. So let us talk about a hypothetical father.

Chester Borrows: You’d happily do the time.

DAVID GARRETT: I would probably happily do the time. But some parents would not. I say to this Committee that I would rather have 12 ordinary people with the attributes of ordinary people judging me, and that is what the defence is about. Would an ordinary person with the normal powers of self-control react in this way? That is the decision in nutshell. I would like to think that that decision is made by 12 jurors and not by a judge.

Hon Rodney Hide: Not by Parliament.

DAVID GARRETT: And not by Parliament. We could talk about the Weatherston case. I will be careful because I have got in trouble before. Weatherston is appealing his verdict so I will need to be very careful. Suffice it to say that senior prosecutors of my acquaintance were astounded that Weatherston received an 18-year non-parole period. If I had been a betting man I would have won because they all said it would be 25 years at least. That decision was made by a judge; we are talking now about verdicts, because that is the province of a jury.

I suspect that before I came down to the Chamber there was great quotation about the Law Commission and supposedly learned persons who are in favour of this move. Well, the Law Society, of which I am no champion, is not in favour of the removal of this defence. I took the trouble of ringing two senior prosecutors who made submissions to the Law Commission 2 years ago and asked them what they thought now. Both of them were of the view—I have to be fair and say that one was more strongly of the view than the other—that the defence should remain.

Professor Bill Hodge, a constitutional law expert at the University of Auckland and not a noted right-wing maniac, has noted that the sentences for manslaughter range from nothing through to life imprisonment. He said that the defence should not be repealed in the absence of alternative defences such as diminished responsibility—what the Americans call temporary insanity, and the French used to call crime passionnel. We do not have any of those alternatives. We are being asked to rely on the wisdom of judges to use section 102 of the Sentencing Act to depart from the presumption of a mandatory life sentence. It is true that that section of the Sentencing Act allows for a less than life sentence to be handed down, but I believe this decision should remain with a jury of the person’s peers.

Hon Lianne Dalziel: Why?

DAVID GARRETT: For the very reasons I have outlined, I say to Ms Dalziel. I do not know whether she is a parent, but it has certainly changed my attitude to life in many, many ways, and it changes my attitude to this matter.

Hon CHRIS CARTER (Labour—Te Atatū) : I stand to support the Crimes (Provocation Repeal) Amendment Bill. After listening to the previous speaker, David Garrett, I say that I am a parent and I am a gay man, and I could hear the dog whistle in that speech. It was all about molestation; all that emotive stuff that has been used all too often as an excuse for bigotry and prejudice.

Mr Garrett did not say it, although I did sense that it was there in the background, but all too often people have stood up in the New Zealand courts and said: “I killed that guy because he hit on me.” I would like to ask the women in this Chamber how many times they have been hit on in their lives when they did not want it. It is probably lots of times. It was offensive, degrading, and it made them angry, but it did not give them the excuse to kill someone. They did not have that excuse, but that excuse has been used so often in the defence of people who killed gay men. They said they were so offended that a guy hit on them. I say again that the women in this Chamber know what that means. They know how offensive it is, but it does not give someone an excuse or a reason to kill another person. Saying no is enough, and if that does not work, there are other strategies and mechanisms that can be used, but we do not kill someone.

I do not think there is any excuse to give someone a licence to exhibit their prejudice. After all, where would end? It still sits there with gay men. It used to sit there with race. I suspect in some cases it probably still does, and that is totally unacceptable. Once it sat there with religion. My ancestors came from Ireland, which is a nation that was divided on religion. Religion was used as an excuse to kill people. No one would accept that today, and no one should accept sexual orientation as a basis to kill someone or to excuse their actions in murder or violence.

I say to Mr Garrett and to those who are opposed to this legislation that our law is robust. It is designed to keep people safe, and it has processes that are tried and true. There should be no loophole for a person to use prejudice to excuse actions that are illegal. Thank you.

CAROL BEAUMONT (Labour) : I raise a point of order, Mr Chairperson. Did the Māori Party just cast 5 votes in favour?

The CHAIRPERSON (Lindsay Tisch): Yes, the Māori Party cast 5 votes in favour.

TE URUROA FLAVELL (Māori Party—Waiariki) : I seek leave of the Committee to change the vote. I have just checked with our people. I would like to change the Māori Party’s vote.

The CHAIRPERSON (Lindsay Tisch): Leave is sought to change the Māori Party’s vote to 4 votes in favour. Is there any objection? There is no objection. I will declare the result again. The result now is that the Ayes are 116 and the Noes 5, and the motion is agreed to.

• House resumed.

• Bill reported without amendment.

The TEMPORARY CHAIRPERSON (Charles Chauvel): I move, That the report be adopted.

Hon PAULA BENNETT (Minister for Social Development and Employment) on behalf of the Minister of Justice: I move, That the Crimes (Provocation Repeal) Amendment Bill be now read a third time. The purpose of this bill is to repeal the partial defence of provocation. Provocation is included in section 169 of the Crimes Act and states that a verdict of murder can be reduced to manslaughter if the offender can show that the crime was committed under provocation. Recent examples have illustrated the significant issues posed by this defence. Extensive consideration by the Law Commission and other bodies has emphasised the need for the defence to be abolished. It is with pride that I stand in support of the bill, on behalf of my party. I will defer to the chair of the Justice and Electoral Committee, Chester Borrows, who will contribute more fully to this debate on our behalf.

CHARLES CHAUVEL (Labour) : It is said that hard cases make bad law. Tonight we had a new maxim from the ACT Party—hypothetical stories spun for electoral rhetoric make for rotten politics. Let me recall three of the hard cases that illustrate the bad law that we have now. And unlike what we heard in the second reading from Mr Hide, and in the Committee stage from Mr Garrett, these are facts—not hypotheticals. These are the most recent cases in which the defence of provocation has succeeded.

In the case of the Crown and 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 not clear. 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 took him to hospital. There, no injuries other than a 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. Ambach said Mr Brown touched him on the thigh after he had been drinking with Mr Brown for a time. Ambach said that he indicated he was not interested in Mr Brown in that way and said he pushed Mr Brown’s hand away. Ambach said he then had another drink and that at some point Mr Brown went upstairs, turning the downstairs lights off. Ambach says that Mr Brown called him to come upstairs. He claimed that he wanted to leave but said he could not find the way out. Ambach claimed not to be able to remember anything after that. But later in his police interview he said 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 claims to have barricaded himself in and claimed to have no memory of how he hurt Mr Brown.

At trial Justice Winkelmann 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 8 years in prison. The sentence but not the verdict is under appeal, but as with the comments made by Lianne Dalziel and I throughout this debate, nothing I have said bears on the sentencing appeal.

The case of the Crown and Ali was one I mentioned in my first reading speech on this issue, so I will not repeat its revolting facts here. I will record, though, that on the facts that were similar to those I have just recited in respect of Ambach, at that trial Justice Williams allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Ali was convicted of manslaughter and sentenced to 3 years’ imprisonment.

In the case of the Crown and Edwards, on the evening of 20 July 2003 Mr McNee was driving his car along Karangahape Road in Auckland. Edwards, in the company of two friends, noticed Mr McNee’s car. Edwards concluded that Mr McNee was looking for somebody to pick up. Having been released from prison 10 days earlier—he had some 50 previous convictions—he had no money so he jumped into the car when it stopped at the nearest traffic lights. Edwards said he concluded a bargain with Mr McNee to perform sexually in his presence for $120. Mr McNee said that his home was nearby and as Edwards needed a shower they went there. Following the shower, Edwards went into the main bedroom. According to him, after some sexual contact 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 he felt very angry and that everything afterwards became a blur, after the first few 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 Justice Frater allowed the partial defence of provocation to be put to the jury. The partial defence succeeded. Edwards was convicted of manslaughter and sentenced to 9 years’ imprisonment.

Each of the three cases over the past 6 years that I have outlined shares four very disturbing features. First, the account 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 somehow deserving of the agonising death meted out to him. Grotesquely, the voice of the victim is silenced, and substituted for by the only surviving witness, the person who stabbed, beat, or otherwise brutalised him to death.

Secondly, aspects of the evidence indicate dishonesty on the part of the killer. Ambach’s and Edwards’ alleged blackouts, Ambach’s smearing of blood from a flesh wound to make it look as if he were wounded more severely, Ali and Edwards’ theft of their victims’ property after killing them, and Ali’s wiping of fingerprints from the crime scene and the selling of his victim’s property, are not the actions of people with a propensity to tell the truth. Their claims of blackouts during which they experienced uncontrolled rage, the essence of the provocation defence, just do not ring true.

Thirdly, horrific violence was inflicted in the killing. In Ambach’s case a banjo bridge was found rammed down the neck of his victim; in Ali’s case there was a stabbing five times; and in Edwards’ case there were 30 or 40 blows.

Fourthly, a High Court judge in each instance instructed 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 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.

The overwhelming majority of submitters to the Justice and Electoral Committee supported the abolition of this outdated and discredited defence. The Law Commission rightfully recommended its repeal. My colleague Lianne Dalziel rightly introduced a member’s bill to effect that repeal. I was glad to draft it for her. She rightly and graciously withdrew that appeal so that Simon Power could advance the Government’s decision to progress repeal, and I commend that decision in the House today.

It is wrong for the ACT Party, which masquerades as the liberal party and as a champion of victims’ rights, to be the only group in this House to oppose repeal. That is an insult to the victims of violent crime, but it shows that party’s true colours. It votes today to continue to sanction a defence that legitimises violence against gay men and against women. I say shame on it. Having heard David Garrett’s contribution during the Committee stage, I think Chris Carter is right. We understand the coded message being sent about which New Zealanders’ lives and votes are worth more than others in the ACT Party’s estimation. I congratulate the rest of the House on moving to take this Dickensian defence off the statute book by the end of this evening.

CHESTER BORROWS (National—Whanganui) : The Crimes (Provocation Repeal) Amendment Bill amends the Crimes Act 1961 to abolish the partial defence of provocation. Section 169 of the Crimes Act provides that “Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.” Section 170, an adjunct to section 169, would also be repealed by this bill.

It is fair to say that society has high expectations of the criminal law. We expect it to be efficient and effective, and, most important, to be fair: not just fair for defendants but fair for all participants, including the victims of crime and their families. There are times when we must look at the system with fresh eyes and ask whether the law is still serving the interests of those it was designed to protect. In this case, I think we all agree that the answer is no. The partial defence is notorious for allowing the defendant to tarnish the character of the victim at trial. In particular, it allows irrelevant factors such as the sexuality of the victim to be raised by defence counsel. This causes unnecessary distress to victims’ families and friends. Limiting any defence argument about provocation to the sentencing stage will greatly reduce the media scrutiny of a victim’s conduct.

Recently, the Government announced eight new initiatives to support the victims of serious crime. Four of those initiatives will provide further assistance to the families of homicide victims. I am pleased to add the repeal of the partial defence of provocation to the list of steps taken by this Government to improve the responsiveness of the criminal justice system to the needs of victims of crime and their families.

I am also confident that the repeal of provocation will strengthen, rather than dilute, the protection offered by the law to the victims of domestic violence. The defence is rarely relied upon by battered defendants and is more often used by the perpetrators of domestic violence to excuse their homicidal violence against a partner. In one example that I have been told of, provocation was successfully relied upon by a man who killed his partner after she broke a promise to him to not report a beating he had given her on the previous day. I can think of no clearer evidence that the partial defence of provocation allows the law to be used against those most in need of its protection.

The labelling of an intentional killing as something other than murder is inconsistent with the State’s obligation to protect the value of all human life. This is where I have a significant problem with the position of the ACT Party, because essentially it wants to have a different class of offender and a different class of victim. This comes from the party that protests that it is the party that argues for victims’ rights most of all. It says in one situation there is an excusable murder, and in another situation there is a murder that is not excusable, depending on the role or the circumstances of the victim. I find that to be completely abhorrent. I also find it to be inconsistent that the earlier speaker on this bill from the ACT Party, David Garrett, said that if provoked, for example, by a situation where he came across someone offending against his own child and he went on to take that person’s life, the member would be prepared to do the time for that. In fact, he said in his opening remarks that he would be prepared to kill for the sake of his child.

I say murder is murder. The intentional killing of one human being by another is murder. It is not manslaughter; it is nothing less than murder. We should be honest enough, in this fair and democratic society, to understand that and to expect to stand up and pay an account for doing exactly that. At a time when the Government is working to send the message that people must find ways to manage their anger other than through the use of violence, it is inappropriate that a defence that effectively rewards a homicidal loss of self-control should remain on our statute book. I commend this bill to the House.

Hon LIANNE DALZIEL (Labour—Christchurch East) : I will begin my contribution to this debate by congratulating my colleague Charles Chauvel. He came to this Parliament already an advocate for repeal of the partial defence of provocation, and I know that he has worked tirelessly to see that law removed from our statute book. I pay tribute to him. He drafted the member’s bill that I had the privilege to have in my name for a short period of time, and I thank him and congratulate him on all that he has done.

I also acknowledge the Minister of Justice, the Hon Simon Power. He introduced the Crimes (Provocation Repeal) Amendment Bill at the point where we were able to have such a bill introduced. I think it is important to say that, because various members of this House have made the point that we are having this debate now because of the Sophie Elliot case and the Ronald Brown case. That is not the case. In fact, the member’s bill that Charles Chauvel drafted for me was ready for the ballot some weeks before those cases hit the headlines. The reason that we deferred putting it in the ballot was to ensure that our participating in a public debate on the defence of provocation could not potentially give a lawyer grounds for appeal. As soon as we knew that those two cases would be dealt with, we felt that it was important that the bill not be submitted to the ballot until an appropriate time. I felt that the Minister introduced this bill in a very timely fashion as soon as he was in a position to do so. I pay tribute to him as well.

I also pay tribute to the chairman of the Justice and Electoral Committee, Chester Borrows. I think he has presented an extremely compelling argument to this House throughout the whole of the debate on this bill. With his experience in the police force and in the legal profession, I think he has brought a very useful contribution to the debate, but I also think he should be congratulated on his personal knowledge and his understanding of the issues.

I do not normally do this—this sounds terrible—but I want to thank Simon Bridges as well. I thought he gave an incredibly sensitive and thoughtful speech, and Jacinda Ardern and I gave him big ups before. I want him to know that it was very moving. I thank him on behalf of all of those whose memories of their loved ones have been ruined, in may respects, by the people who murdered them claiming this defence. I thought he added a very, very powerful message tonight.

I will follow on from some of my colleagues and say that I regret that we could not speak with one voice in Parliament tonight. I think that would have been the best way that we could have offered something to the families of Sophie Elliot and Ronald Brown. I was asked during the Committee stage of this bill whether I had children. No, I do not have children. The reason I was asked whether I had children was not to question whether I would be prepared to die for my child; it was to question whether I would be prepared to kill for my child. Even though I do not have children, there are people whom I would die for, but, no, there is no one whom I would kill for, because I do not believe that it is my right to kill another, to intentionally take a person’s life from him or her.

As my colleague Chris Carter pointed out, the ACT Party has disgracefully employed a dog whistle technique in this House tonight. Those members use the hypothetical example of a father responding to a direct threat to a child—to a child being abused or attacked. That was the example we had given to us—a hypothetical case. Not one case in the litany of cases presented by two Law Commission reports—not one case—mirrors the hypothetical example. Why? Because not one such case would see a lawyer recommending pleading provocation; he or she would go for complete acquittal. That is the point I am making. The lawyer would argue that the father was incapable of forming intent. I ask members to tell me if they could find a jury that would convict a father in those circumstances.

This defence is not about those cases. This defence is about men who determine that the anger they feel about being approached by somebody of a different sexual orientation is grounds for them to take that person’s life, or that the subsequent behaviour of a former partner, former wife, or former girlfriend, even—their former partners’ choosing to be with somebody else, or not considering that their sexual prowess is up to it, as it were—somehow justifies their taking their former partners’ lives, and, often, the lives of the new men in their lives, as well. That was the example we had from Simon Bridges. That is what this defence has been used for, and no amount of sophistry from the ACT Party will change that.

The law change is not happening because of the Sophie Elliot case or the Ronald Brown case, but we would pay tribute to their memories by passing it unanimously. I believe that in this House we have a responsibility to keep our statute book up to date. This defence is past its use-by date. I commend this bill to the House.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Deputy Speaker. Kia ora tātou katoa. I thank all of those who have contributed their kōrero tonight. I find it a bit strange to come back to the House today. I have been away all day at a tangi for a young man, Hāwea Vercoe, who was taken just a couple of days ago in Whakatāne. We are talking about provocation, and I do not know what provocation caused that young man’s death, but he lost his life at a very young age and leaves behind a young family. A couple of hundred people were at his marae today. It is a bit difficult to come back to the House and to think of him, and to also think of the stories that other members have provided as background information this afternoon and this evening. Nō reira, kia ora tātou katoa.

As others have said tonight, the aim of the Crimes (Provocation Repeal) Amendment Bill is to amend the Crimes Act in order to abolish the partial defence of provocation. I was thinking of how we would describe this concept in te reo rangatira, in te reo Māori. “Whakakārangirangi” is to provoke. Or we might refer to “te mura o te ahi”, the heat of passion. There are concepts that refer to an out-of-control state of being, like wairangi, which is the losing of all self-discipline—a state of mental disorder and chaos that leads to an offence.

In the language of the street, though, provocation is a term that is associated with the myth most commonly associated with the attitude that he or she asked for it. In other words, possibly the way that a woman looks, the clothes that she is wearing, the location that she is visiting, the activity that she is involved with, the time of the day when she is out, and the look in her eye are all, apparently, sometimes valid reasons for taking advantage of her. The Māori Party states categorically that no one asks to be raped, no one asks to be abused, and no one asks to be killed. Nothing—I repeat, nothing—that a victim does, says, or wears is any justification at all for an offence.

It is absolutely appropriate to be debating this bill on the day after White Ribbon Day, an international day of action on which we wear white ribbons to show that we do not condone violence towards women. In celebration of our families and our universal hope for their peace and safekeeping, we will today take out the partial defence that has been used for the ultimate violence, the violence of murder.

As other speakers have noted, provocation is a partial defence that, when successful, can reduce a charge of murder to manslaughter. In effect, that means in practice that the charge laid against an offender can be reduced from murder to manslaughter if the offender can prove that the circumstances were enough to deprive him or her of self-control, and that this induced the offender to commit murder.

We were particularly persuaded by the logic of the Human Rights Commission, which acknowledged that at the heart of the defence of provocation is the need to balance conflicting sets of human rights: the rights to life, to justice, and to a fair trial. The Human Rights Commission considers that the interests of victims’ families are of particular relevance, and that this bill protects and respects their dignity. We were also interested in the views of the National Collective of Independent Women’s Refuges. The collective stated unequivocally that it is unacceptable for this defence to be used by people who have struck out in anger. All that it does is to reward a lack of self-control by enabling an intentional killing to be characterised as something other than murder.

In the experience of the victims of family violence, they have not benefited from this defence, at all. Indeed, perversely, the defence has been used more often and more successfully by the perpetrators of family violence against their victims. We all know that reality, having observed the highly televised ordeal of the family, the whānau, who had to suffer the indignity of witnessing their loved one being subjected to a horrific trial in which the one who had incurred the greatest injustice was unable to take the stand in defence. Her voice had been silenced and her truth was unheard, while the offender had the luxury of the court of public opinion in which to put forward his version of events. I agree with Lianne Dalziel, who said that the media fascination cum obsession with recent trials was certainly bordering on disrespectfulness towards the families who have suffered the humiliation of hearing their loved ones being insulted and degraded by an offender’s defence.

In our consultation with Māori working in the law profession, we found that there was support for repealing the defence of provocation, provided that something is written into the Sentencing Act for judges to take account of provocation in sentencing and, in doing so, to have regard to an offender’s special characteristics when assessing whether that person was likely to have been provoked. We sought advice about the process by which we might make an amendment to the Sentencing Act 2002 to add the statement “and any special characteristics” when judges are considering circumstances such as provocation for sentencing after a conviction for murder has been given. It appears, however, that such an amendment is outside of the scope of this bill, and is, therefore, out of order and unable to be tabled. In effect, the bill is very narrowly focused; it simply repeals the provocation defence. To amend the Sentencing Act is to extend the scope of the bill, which is not possible under the Standing Orders.

Notwithstanding that advice, we suggest that the cultural characteristics of a person should be brought into account when making the assessment for a sentence. We are aware that some things that are not hugely offensive for the average person might be highly offensive for a particular offender because of their particular Māori, Islamic, or other cultural background. We recall that section 16 of the Criminal Justice Act 1985 allowed an offender’s supporter to present information at sentencing about an offender’s ethnic or cultural background, and about the way that it may have related to the offending and the way that it may help to avoid future offending, as well. It may well be useful to look again at the application of that provision.

I acknowledge the initiative taken by Lianne Dalziel—tēnā koe—Charles Chauvel, and Simon Power working together across the House on such an important change to the legislation. We in the Māori Party are proud to stand with the other parties and say that there is no excuse for violence. Whether it be the questioning of sexual performance, homosexual advances, the lifestyle, the clothes, or the way of being, there is no excuse for violence, and provocation most certainly is no excuse, not even as a partial defence for murder. The Māori Party is pleased to support this bill. Kia ora tātou.

DAVID GARRETT (ACT) : I stand as the representative of the only party opposing this bill, and I am happy to so.

Hon Lianne Dalziel: Shame!

DAVID GARRETT: Well, that party is shameful for attacking me personally and questioning my motives and my commitment to victims. I will leave others to judge that.

The irony of today is that I was a great believer in majoritarian democracy, which basically means that the majority, and certainly the vast majority, knows best. In deciding what ACT members were going to do with regard to this bill, I read widely. I looked at a quote from Benjamin Franklin. He said this about democracy: “Democracy is a vote between a two wolves and a lamb about what to have for dinner.” I am quite happy to be the contrarian here and say that what the majority might think on this occasion, or any other, might not necessarily be correct. We have seen in recent days, amusingly for ACT members, that the contrarian mentality—some would say the denier mentality—about global warming might just be right. So we will see.

As I said in my first reading speech and in my speech during the Committee stage, it is easy to hold up Clayton Weatherston’s case as an example of all that is bad in the justice system. As I said a few minutes ago, the central point is that the defence failed. The jury saw him for the scumbag that he is. This bill does not entirely remove the power to determine provocation. There have been some disingenuous statements about that. What the bill does is shift the consideration of the argument for provocation from juries, as arbiters of fact, to judges. It makes provocation a potential factor to be considered by a judge under section 102 of the Sentencing Act in deciding whether to depart from the presumption and impose a term less than life imprisonment because to do otherwise would be manifestly unjust.

That Sentencing Act is the same Act that that automatically, in a Kafkaesque or Orwellian way, reduces sentences to just one-third of what is handed down by the judge. The Sentencing Act itself is manifestly unjust. It lets persons who are given 10 years in jail serve 3½. The bill before us suggests that we do not trust the community to judge its peers, when, on the evidence quoted by Ms Dalziel and confirmed by me, juries have shown themselves on the whole to be more than capable of fulfilling that role and deciding whether the partial defence is justified.

Members on the other side of the House have tried to portray this defence—and I am sad to say that Chester Borrows, whom I respect greatly, has done this also—as synonymous with a gay panic defence. Well, that is simply not true. One successful case involved a female victim of long-term domestic violence. Another involved the son of a terminally ill woman. No one has mentioned tonight—and I am not surprised, sadly—the case of Epifania Suluape, a Samoan woman who killed her husband after years of physical and emotional abuse. She had been cheated on countless times, mocked, and taunted by her former partner, who was a noted artist, while she stayed at home in Māngere and looked after the kids. She had been cut with a machete, and even infected with a venereal disease.

Finally, the partner said he was going off with his latest floozie, and she asked him whether that was the case. He laughed at her, and she hit him with a hammer and killed him. The jury decided that she was provoked. The judge disagreed and said there were no significant mitigating factors and that the offence bordered on murder. [Interruption] No—no Labour members mentioned Epifania Suluape. Her sentence of 7½ years for manslaughter was reduced to 5 years on appeal. But had the trial judge listened to the jury in the first place, there would have been no need for an appeal. To me and the ACT party, it makes sense to trust a jury of one’s peers rather than a judge in terms of a decision about whether provocation is an acceptable factor or defence.

All of us in the House want to avoid a repeat of the Clayton Weatherston trial. What a terrible spectacle it was! But a law change would not and will not avoid that. All it will do is move provocation from a defence to be put to the jury to a factor to be put before the judge at sentencing. Why would any offender now, even if it is fancifully imaginable, not put the factor of provocation? We will not be sparing the families of this country. We will still be subjecting them to the kind of thing that the Elliott family had to put up with—it will just be in front of a judge rather than a jury.

The Law Society and I—we are somewhat unusual bedfellows—would be more inclined to support a law change if we replaced it something else, such as a diminished responsibility defence. Other common law countries that have abolished this defence have done so only when it has been replaced by an alternate defence like that of diminished responsibility, battered woman’s syndrome, or temporary insanity. The Law Society says—and, as I have said, I have checked with the submitters—that its position remains the same—before we tamper and remove a defence that has been a part of our law for centuries, we must replace it with something else, such as diminished responsibility.

Hon Lianne Dalziel: Oh God!

DAVID GARRETT: I am quoting the Law Society, I say to Ms Dalziel, so she should not groan. That member is normally a big fan of the Law Society. Well, I am agreeing with it on this occasion.

One of those submitters said that if the provocation defence was to be abolished “juries might convict on the alternative charge of manslaughter based on their sympathy for the defendant rather than on rational grounds.” Another learned prosecutor said that there is a real possibility of the number of hung juries increasing as they become split over whether those who would argue provocation should be found guilty of the offence of murder.

Finally, I noted in my first reading speech that this bill needed to be considered by a select committee. That is why ACT members voted for it at first reading. I said in my first reading speech that I hoped it would receive at least as many submissions as the Sentencing and Parole Reform Bill, which had more than 1,000. I ask members to guess how many submissions were received on this bill. Mr Chauvel loosely talked about a majority of submissions. Well, there were 14 submissions—14 submissions on a defence that has been part of the common law for centuries.

I urged the House to calm down, take a breath, and think things through. Well, that will clearly not happen. I believe that if we abolish the defence of provocation as we are about to, we will create a whole host of other problems instead. I am happy to be the representative of the contrarian party in the House and vote against this bill.

PAUL QUINN (National) : I thank the National whip for allowing me to take a short call on the Crimes (Provocation Repeal) Amendment Bill, because I want to say a few words. I want to record that at the start of the process, notwithstanding that I was always going to support this bill simply on the basis that it is a Government bill, I had some personal reservations about it. Those reservations were particularly captured in the contribution of the leader of the ACT Party.

When I entered into the select committee process, I did so with some trepidation about my personal views and the fact that this was a Government bill. I am pleased to be able to stand here tonight and say that through the Justice and Electoral Committee and particularly because of the contribution and guidance of the chairman of that committee, Chester Borrows, and also David Parker, I was able to be persuaded, in a personal sense, to support this bill in its totality. A lot of my change of mind has been captured in this debate, but particularly in the poignant contribution of Chris Carter and also Lianne Dalziel’s final contribution. On that basis, I just wanted to say those few words. It gives me great personal pleasure to support this bill.

KEVIN HAGUE (Green) : One of the vagaries of urgency is that sometimes one is not in precisely the place one would like to be. It is with regret that I missed the second reading and Committee stage of the Crimes (Provocation Repeal) Amendment Bill. It was a huge privilege and pleasure for me to be able to stand in the first reading debate to make a contribution. I want to thank my colleague Paul Quinn for giving me the opportunity to collect my thoughts before standing here tonight.

Te Ururoa Flavell spoke in the third reading debate of the fact that this third reading comes just one day after White Ribbon Day. One of the things we do on White Ribbon Day is comment on, and take a stand against, a culture of violence in our society. Today we have an opportunity to do just that again. A culture of violence is one that we should oppose and we must do just that in this House today. I know also that my colleague Catherine Delahunty has spoken about a culture of homophobia. Members may recall that my first reading speech referred in the strongest possible terms to that culture and the requirement and duty upon all of us to take a stand against homophobia also. It is a great pleasure for me to note that this House chooses to do so on this day.

It sounds as if I have missed some great speeches, and to my colleagues who have made those I am sorry about that; I will read the Hansard and watch the tape with the greatest of interest. One of the interesting things for me about this issue is the culture change that has occurred. I spoke about that culture of violence and culture of homophobia, but I well recall that it was not so long ago that raising this issue would have met with the fiercest resistance. In listening to what I have heard of the debate tonight and the discussion around this law change in our wider community over the past few months, I draw a clear conclusion that there has been a sea change in culture on this issue. That is not only a sign of hope on this issue and in our capacity to challenge homophobia and violence, but it is also a wider sign of hope for other changes and for the possibility of holding out for important change even when it appears hopeless.

I started my first reading speech with a toll of those gay men who have lost their lives and whose assailants have been found not guilty of murder because of the reprehensible defence of provocation. Tonight I again pay tribute to the memory of those men. I also want to thank some members of the select committee and some other members of this House who have campaigned on this issue. In particular, I think of my colleagues and friends Lianne Dalziel and Charles Chauvel, who have led the way on this issue.

I also pay tribute and give thanks to other members of the select committee, in particular Chester Borrows. It was kind of him to allow me to participate in the select committee proceedings, and I found him to be an excellent and fair-minded chair, one who has justice in his heart. I also want to say thanks to the other members of the select committee, from all parties. I note in particular Simon Bridges’ contribution on the select committee, which I found to be really helpful, and I acknowledge Paul Quinn’s comments just now. I think the stories of those of us who have listened to arguments and changed our minds are great stories, and they are stories that should give hope to this House and to our nation. I also make what may seem a surprising acknowledgment of David Garrett. In the first reading debate I particularly appreciated the comments and the spirit that David showed in supporting the move to allow this to go to the select committee. I know that, even though he has spoke passionately in this debate about his opposition to the passage of this bill, he holds that view sincerely. I respect him for that, albeit I profoundly disagree with that view.

This bill removes one of the most loathsome provisions that stand in all of New Zealand law. It is a provision that provides for a charade in which the lives of gay men—and I unashamedly speak again about this one particular aspect of the law—are considered second-class and not worthy of the full protection of the law. It is a shameful law, and it is a credit to this House that we stand tonight in its repeal. Thank you.