Powered by People

Articles and Legal News

Please note all of our news and articles are for general information purposes only and do not constitute legal advice. For advice tailored to your circumstances please contact your Saunders & Co lawyer. As well as providing regular news updates on the feed adjacent, we also provide a personalised news email service. To choose what news we send you, click here.

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 Critics of the partial defence argue that it is an archaic and outdated notion about violence.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.

"Through this time we have required the services of the firm for business, personal, and litigation purposes. We have never felt a moment's hesitation in remaining with the firm, and expect to continue a long and prosperous relationship with Saunders & Co. into the future."

Colin and Julie Erickson, Cube Developments Limited

"Excellent law firm to deal with. Excellent communication and service."

Carmel Kokshoorn, Property Owner

"Thanks Hornby Law for your professional and helpful advice. It is nice when everything runs smoothly."

Barry and Natalie Gibb

"We have found them reliable, timely and professional. They have added value to our business by being effective and decisive. Their friendly manner whilst conducting business means that we have felt comfortable seeking their advice no matter how major or minor the query may be. We would have no hesitation in recommending Saunders & Co to family, friends and business associates."

Cymon and Angela Allfrey, Cymon Allfrey Architects Ltd

"Very prompt and efficient service. I have been very well informed and kept up to date on matters. To be recommended. Thank you."

Suzanne Henderson, Property

"The professional and friendly service provided by Jenni Hunter allowed us to buy our first home without fuss stress or delays, absolutely seamless! Amenable, and more importantly always accessible to clarify and assist, Jenni proved you can get an exclusive personal service without paying Auckland barrister prices."

James Craig, Home Buyer

"Always happy with service and professionalism at Hornby Law. Never had any reason or desire to change firms; friendly, welcoming, professional and easy to do business with."

Frans and Rose-Marie van Zoggel

"Thank you Ria and your team for the excellent work in completing the sale on such a short turnaround, that's why I always use Saunders & Co."

Ashley Patten, Property Owner

"I have worked with Saunders & Co on both a professional and personal basis for over 10 years. I have always found their service and quality of legal advice to be first rate. Attention to detail and timeliness is important to our business, and Saunders & Co have always performed in these critical areas."

Ian McNabb, Ngai Tahu Property Limited