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The Partial Defence of Provocation

The debate over whether the partial defence of provocation should be abolished has gained significant attention since the Clayton Weatherston trial. Many people believe that the defence should no longer be available.

The partial defence of provocation is predominantly set out in section 169 of the Crimes Act 1961 and effectively reduces a charge of murder to manslaughter. In order for an accused to successfully argue provocation they must prove:

  • that the provocation in the circumstances of the case was sufficient to deprive a reasonable person of the power of self-control, and
  • that the provocation did in fact deprive the offender of the power of self-control and thereby induced them to commit the act of homicide.Saunders and Co Christchurch property and building lawyers

Ultimately provocation is a high test to satisfy and although it is often raised, few offenders are successful. Critics of the partial defence argue that it is an archaic and outdated notion about violence. They claim the defence effectively rewards a lack of self-control in offenders who intentionally take another person’s life. Historically the rationale for the defence of provocation was to avoid a mandatory sentence for murder (originally capital punishment and later life imprisonment) in cases where factors arising from the circumstances of the case may reduce the offender’s sentence. However, life imprisonment for murder is no longer mandatory by virtue of the Sentencing Act 2002, which begs the question, is the defence of provocation still necessary?

Many argue that accusations of provocation can be dealt with by a judge during sentencing and have no place in the actual trial which determines guilt or innocence. Once an offender has been convicted, a sentencing hearing is held where they are able to present mitigating factors of the offence (such as provocation) to the judge which may reduce their sentence.

Furthermore, the defence provides the offender with an opportunity to attack and tarnish their victim’s character. The resulting experience can be very traumatic for the victim’s family and friends.

Not everyone, however, agrees that the defence of provocation should be abolished. Some argue that removing the defence would be playing around with the basic concepts of criminal law.

Parliament has already taken steps to remove the partial defence of provocation from the statute book. The Crimes (Provocation Repeal) Amendment Bill 2009 (‘the Bill’), was introduced to Parliament on 4 August 2009 and had its first reading on 18 August 2009. The Bill will effectively repeal sections 169 and 170 of the Crimes Act and therefore abolish the defence of provocation in New Zealand.

There is no indication when or if the Bill will be passed into law, but it is clear that there is a lot of support from both Parliament and the general public for the change.

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