KEY POINTS:
The partial defence of provocation is an important part of our legal framework and should not be repealed, the Law Society says.
Criminal law committee convener Jonathan Krebs said the committee recognised that provocation was problematic, it was not easy to explain, and it was not easy for the jury to understand.
"However, it should be retained until there was some alternative," Mr Krebs said.
Last month, the Law Commission recommended provocation be removed as a defence for people charged with murder. The commission said the partial defence of provocation should be abolished.
It said the provocation defence allowed someone charged with murder to have the charge reduced to manslaughter if they were provoked by the victim.
Mr Krebs said the defence was important in New Zealand's legal framework, even more so when there was no other ability for the jury to distinguish between degrees of murder. The commission had suggested the new sentencing model could include provisions for considering provocation as part of the sentencing process. However, the committee's position was that "we should not be talking about getting rid of provocation" until the new sentencing regime was in place, Mr Krebs said.
The recommended changes to the Crimes Act 1991 would allow such factors to be weighed in as aggravating and mitigating factors during sentencing rather than in setting the charge.
The report said the defence was originally used to avoid the mandatory life sentence for murder. However, under the Sentencing Act 2002, a life sentence is no longer mandatory.
The commission report said the partial defence of provocation was "irretrievably flawed" because it claimed to be a partial excuse, assumed there could be a loss of self-control, and that in extreme circumstances an ordinary person, when provoked, would resort to homicidal violence.
Mr Krebs said that in a situation where battered women killed their abusers, the commission found that few women had "successfully relied upon provocation" as a defence.
He said the criminal law committee considered that the situation for battered women was "another area of diminished responsibility" where provocation could apply and should be available as a defence.
Provocation remains a partial defence in England and Australia, where there is still a mandatory life sentence for murder.
* DIFFERING VIEWS
The Law Commission argues that the partial defence of provocation allowed someone charged with murder to have the charge reduced to manslaughter if they were provoked by the victim.
The Law Society wants the defence retained, even more so when there is no other ability for a jury to distinguish between degrees of murder.
- NZPA
