The defence of provocation

Ferdinand Ambach was this month found not guilty of murder - but guilty of manslaughter - after arguing he was provoked when his victim made unwanted sexual advances. Photo / Richard Robinson

The family of murder victim Sophie Elliott family have called for the defence of provocation to be dropped after her killer tried unsuccessfully to use it at his trial.

Weatherston was today convicted of murdering Miss Elliott, his former girlfriend but had denied murder, saying he was provoked by her insults after the end of a "torrid relationship".

Outside the court, Sophie Elliott's family were asked how they felt about the defence of provocation.

Her father Gil said: "We don't like it. It's totally unnecessary. We hope that it will be withdrawn now from the statute book. I think there are a lot of people that will back us on that."

Lesley Elliott said: "It is time for a change and I think that had this verdict not gone this way you might say that every murder could be manslaughter because probably most murders there is some element of provocation and so I think for our country I think we needed to have this decision.

If this was a legacy Sophie could leave "that's good", Mrs Elliott said.

The Law Commission has called for the defence of provocation to be wiped from the Crimes Act.

"We believe that it will be preferable for provocation to be dealt with by judges solely as a sentencing issue," a statement from the Commission in 2007 said.

In the commission's summary, Sir Geoffrey Palmer said the provocation defence had been used "all too frequently" in killings that had come after a homosexual advance.

"When we reviewed a sample of homicide cases over a five-year period, we found that fifty percent of the cases in which provocation was successful were so-called homosexual advance or homosexual panic cases," Sir Geoffrey said.

He also noted that 12 of the 16 Crown solicitors supported a repeal while the defence bar was opposed because "partial defences perform a useful and necessary function in the criminal justice system".

View the Law Commission's review of the partial defence of provocation here.

However, the Law Society supports the retention of the provocation defence.

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.