Law reform: Kiwi-style – the provocation defence


In my first year law course, I teach the students about the legislative process – suffice is to say that it is pretty riveting stuff, and is typically greeted by yawns and other expressions of disinterest. In any case, the one line summary I give at the end of class is as follows: before a bill can become law, it must pass through three readings in the House of Representatives and receive the assent of the Governor General. (The process is described more fully here.)

This process can drag out for years, or it can happen much more rapidly. Indeed former Prime Minister, Minster of Justice, Attorney General, Law Professor, and current President of the Law Commission, Geoffrey Palmer, once described the legislative process in New Zealand as being the fastest law in the West. This is in part due to some fairly permissive Parliamentary procedures such as the lack of a quorum requirement and urgency provisions allowing the fast-tracking of legislation. But equally important are certain structural features of the New Zealand legal system. First, the New Zealand Parliament is unicameral – Parliament’s one-time upper house, known as the Legislative Council, was abolished on 1 January 1951. Second, the executive government continues to be able to pass laws as it likes, despite the advent of more coalitions in the era of mixed member proportional representation – a system introduced in 1993.

New Zealand is also a small country, with a population of just over four million people. (Sheep continue to outnumber humans by a factor of twelve to one.) And so news of any serious crime, particularly murder, is pretty much a guaranteed six o’clock news story. The same is true of any resulting criminal trial. Certain criminal trials dominate news coverage for a time. This is unsurprising. What is perhaps equally unsurprising, but nonetheless disturbing, is how the outcome of a criminal trial may lead to reactionary legislating.

On the 22nd of July, a jury found Clayton Weatherston guilty of the murder of ex-girlfriend Sophie Elliot. On 4 August 2009, the government (which, as noted, by definition commands a majority in Parliament) introduced the Crimes (Provocation Repeal) Amendment Bill to Parliament. This bill, as its title suggests, will repeal the partial defence of provocation currently contained in the Crimes Act 1961 once it is enacted in the near future. This episode  provides an interesting insight into the interplay between crime, the media, the public, and policy-makers.

Weatherston was convicted of murder, having stabbed his victim 216 times in her bedroom while the victim’s mother was locked outside. Add to these horrifying facts an attractive and by all accounts highly talented victim, and an apparently smug and narcissistic defendant testifying in his own defence, and you have one of the media trials of the year in New Zealand.

The aftermath of the trial led to a ground-swell of public support for the abolition of the defence of provocation, on which Weatherston had unsuccessfully relied. The government, as noted, has reacted swiftly to this public sentiment. But there are several reasons why things should be thought through carefully before change is made.

1.  Did the law fail? Before the defence is made out, the trial judge first has to allow the defence to go to the jury, which requires that there is enough evidence supporting a credible narrative of provocation. Second, the jury must determine whether the elements of the defence were made out. In this case, the defence went to the jury, which rejected it on the facts. It’s not self evident that the law failed.

2.  Is abolition of the defence of provocation required? Perhaps we think that it is wrong that the law allowed Weatherston to claim the defence in the first place. Perhaps some things should just not qualify as the basis for a claim of provocation, and we should expect people to react to certain situations in a non-violent manner. If that is the case, then the defence could be narrowed rather than abolished by defining certain things – a woman saying “I’m leaving you”, or a homosexual advance – as being outside the scope of the defence.

3.  Will abolition fix what we don’t like? My sense of the fallout from the trial is that much of the unhappiness is with Weatherston claiming the defence was that it resulted in the victim’s life being trawled through for all to see: it appeared as though the victim was on trial. But this argument isn’t really about the provocation defence, but rather about the adversarial system. If we are unhappy with the ugliness of an adversarial criminal trial, abolishing provocation is not going to fix that. (At this point, let me note in passing one of the less savoury aspects of New Zealand’s small town mentality: Weatherston’s lawyer, a well known Queen’s Counsel, has been showered with abusive emails, including one during the trial from a priest, and has had acid thrown over her car.)

4. Will there be unintended consequences? Might it be possible to conceive of a case where we might be sympathetic to a claim of provocation? If so, the non-availability of the defence could lead to an injustice. New Zealand has no degrees of murder, so for example no formal differentiation is made between premedidated murder and unpremeditated murder. It is true that under the Sentencing Act 2000, it is possible to impose less than a “life sentence” (requiring a minimum of 10 years’ imprisonment – I know, I know, peanuts by American standards) for murder where this would be manifestly unjust. First, the manifestly unjust standard is not an easy one to meet. Second, and perhaps more importantly, this doesn’t answer an objection based on fair labelling.

I’m sure that I’m only scratching the surface, and that there are plenty of other issues. But I’m not confident that they will be considered by the powers that be or by the public at large. I’m afraid, in other words, that we will provide rather too literal an example of the adage that hard cases make bad law.

Image: wikicommons, Alexander Efimov, GNU Free Documentation License

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