Editorial: Provocation defence has run its course

The provocation defence, which allows for a killing that would otherwise be classed as murder to be downgraded to manslaughter, has always defied rational thinking. How could it be otherwise when, essentially, it says murder can be excused if a person loses self-control.

Perhaps Women's Refuge chief executive Heather Henare was on the right track when she suggested it dated back to a time when society accepted that an affront to male privilege or dignity was a reasonable excuse to fly into a homicidal rage. Whatever its origin, it will not be on this country's statute books for much longer. Justice Minister Simon Power last week introduced legislation abolishing it as a defence, saying he wanted this enacted by the end of the year.

A major catalyst for his urgency was, of course, the trial of Clayton Weatherston, during which the Otago University tutor argued he was provoked into stabbing his girlfriend, Sophie Elliott, 216 times and was guilty only of manslaughter. After a trial in which Gil and Lesley Elliott often felt the besmirching of their daughter's character meant she was the one in the dock, the jury found Weatherston guilty of murder.

In another case last month, however, Ferdinand Ambach successfully used the defence in his trial for killing Onehunga man Ronald Brown. Part of Ambach's defence was that Mr Brown, who was gay, made unwanted sexual advances to him.

Unease about the defence has been longstanding. In 2001 and 2007, the Law Commission sought its demise. More recently, Labour MP and former lawyer Charles Chauvel drafted a bill that he said would end a provision in law which "lets people know they can get away with murder". One of the few dissenting voices has been that of the Law Society. It conceded the provocation defence was problematic, not simple to explain and not easy for a jury to understand, but said there was, otherwise, no ability for a jury to distinguish between degrees of murder.

The Law Commission suggested a way around this by recommending that provocation could be considered as part of sentencing. It said changes to the 1991 Crimes Act would allow the likes of aggravating and mitigating factors to be weighed by the judge during that part of the justice process, rather than in setting the charge. In effect, the 2002 Sentencing Act went along this path in dictating that a life sentence for murder was no longer mandatory. Judges could impose less than 10 years' jail for murder. While taking the jury out of the driving seat, this essentially negates the reasoning advanced by the Law Society for keeping the provocation defence.

A further reason cited for retaining the defence is its potential for obtaining reduced sentences for battered women who kill their abusers. The commission found, however, that few such women had successfully used provocation. There is an inherent difficulty in that battered women are seldom in a position to respond to provocation with spontaneous violence, which is the strongest evidence of a sudden loss of self-control. Usually, they act out of fear or despair, not anger, and their act is premeditated. In any event, the abolition of the mandatory life sentence provides an avenue that allows juries to deliver honest verdicts in such cases, while letting judges acknowledge a woman's dire circumstances.

The sentencing can, of course, in itself be controversial. Many judges have felt a backlash after jailing criminals for terms out of step with popular expectation. There are sure to be further instances. But that is of far lesser consequence than the possibility of a repeat of the Weatherston trial. The defence of provocation has run its course. With new sentencing provisions in place, it will not be missed.