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Speech: Flavell - Crimes (Provocation Repeal)

Third Reading, Thursday 26th November 2009 8:27 PM

Tēnā koe, Mr Speaker. Kia ora tātou katoa. I thank all of those who have contributed their kōrero tonight. I find it a bit strange to come back to the House today. I have been away all day at the tangi for a young man, Hāwea Vercoe, who was taken just a couple of days ago in Whakatāne

We are talking about provocation, and I do not know what provocation caused that young man’s death, but he lost his life at a very young age and leaves a young family. There were a couple of hundred people at his marae today. It is a bit difficult to come back to the House and to think of him, and also to think of the stories that other members have provided as background information this afternoon and this evening. Nō reira, kia ora tātou katoa.

As others have said tonight, the aim of the Crimes (Provocation Repeal) Amendment Bill is to amend the Crimes Act in order to abolish the partial defence of provocation. I was thinking of how we would described this concept in te reo rangatira, in te reo Māori.

Whakakārangirangi” is to provoke. Or we might refer to “te mura o te ahi”, the heat of passion. There are concepts which refer to an out-of-control state of being, like wairangi, of losing all self-discipline, a state of mental disorder and chaos that leads to an offence. In the language of the street, though, “provocation” is a term that is associated with a myth most commonly referred to with the words “He or she asked for it.” In other words, possibly the way a woman looks, the clothes that she is wearing, the location she is visiting, the activity she is involved with, the time of the day she is out, the look in her eye, are all, apparently, sometimes valid reasons for taking advantage of her.

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The Māori Party states categorically that no one asks to be raped, no one asks to be abused, and no one asks to be killed. Nothing, I repeat, nothing that a victim does, says, or wears, is any justification at all for an offence. It is absolutely appropriate to be debating this bill the day after White Ribbon Day, an international day of action on which we wear white ribbons to show that we do not condone violence towards women.

In celebration of our families and our universal hope for their peace and safekeeping, we will today take out the partial defence that has been used for the ultimate violence, the violence of murder.

As other speakers have noted, provocation as a partial defence that, when successful, can reduce a charge of murder to manslaughter. In effect, that means in practice that the charge laid against the offender can be reduced from murder to manslaughter if the offender can prove that circumstances were enough to deprive them of self-control, and that that induced him or her to commit murder.

We were particularly persuaded by the logic of the Human Rights Commission, which acknowledged that at the heart of the defence of provocation is the need for balancing conflicting sets of human rights: the rights to life, to justice, and to a fair trial. The Human Rights Commission also considers that the interests of victims’ families are of particular relevance, and that this bill protects and respects their dignity. We were also interested in the views of the National Collective of Independent Women’s Refuges, which stated unequivocally that it is unacceptable for the defence to be used by people who have struck out in anger.

All that that does is reward a lack of self control by enabling an intentional killing to be characterised as something other than murder. In their experience, victims of family violence have not benefited from this defence, at all. Indeed, perversely, the defence has been used more often and more successfully by perpetrators of family violence against their victims.

We all know that reality, having observed the highly televised ordeal of the whanau who had to suffer the indignity of their loved ones being subjected to a horrific trial in which the one who had incurred the greatest injustice was unable to take the stand in defence. Her voice had been silenced and her truth was unheard, while the offender had the luxury of the court of public opinion to put forward his version of events. I agree with Lianne Dalziel when she says that the media fascination come obsession with recent trials was certainly bordering on disrespectfulness towards the families who suffered the humiliation of hearing their loves ones insulted and degraded by the offender’s defence.

In our consultation with Māori working in the law profession, we found that there was support for repealing provocation, provided that something is written into the Sentencing Act for judges to take account of provocation in sentencing, and in doing so, to have regard to the offenders special characteristics when assessing whether that person was likely to have been provoked.

We sought advice about the process by which we might make an amendment to the Sentencing Act 2002 to add the statement “and any special characteristics” when judges are considering circumstances such as provocation for sentencing after a conviction for murder has been given. It appears, however, that such an amendment is outside of the scope of the bill, and is therefore out of order and unable to be tabled. In effect, the bill is very narrowly focused; it simply repeals the provocation defence.

To amend the Sentencing Act is to extend the scope of the bill, which is not possible under the Standing Orders. Notwithstanding that advice, we do suggest that the cultural characteristics of a person should be brought into account when making that assessment for a sentence. We are aware that some things that are not hugely offensive for the average person might be highly offensive for a particular offender because of their particular Māori, Islamic, or other cultural background.

We recall that section 16 of the Criminal Justice Act 1995 allows an offender’s supporter to present information at sentencing about an offender’s ethnic or cultural background, the way that that may relate to the offending, and the way that that may help in avoiding future offending, as well. It may well be useful to look again at the application of that provision.

In closing, I acknowledge the initiative taken by Lianne Dalziel—tēnā koe—and Charles Chauvel and Simon Power working together across the House on such an important change to the legislation. We in the Māori Party are proud to stand with the other parties and say that there is no excuse, whether it be the questioning of sexual performance, homosexual advances, the lifestyle, the clothes, the way of being, there is no excuse for violence, and there most certainly is no excuse for even partial for murder. The Māori Party is pleased to support this bill. Kia ora tātou.


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