KEY POINTS:
The legal defence allowing killers who have been provoked to side-step a murder conviction looks set to be scrapped after a Law Commission report said it was no longer valid.
The report, The Partial Defence of Provocation, was tabled in Parliament today and recommends repealing section 169 of
the Crimes Act, which allows murder to be reduced to manslaughter if the killer has been provoked to the point of reasonably losing self-control.
It is normally used to defend the actions of men reacting to unfaithful partners or homosexual advances.
Commission deputy president Warren Young said the defence of provocation went against the principles of a society against violence, was out-dated and has caused confusion and inconsistency in the courts.
People who intentionally kill should be convicted of murder, and all mitigating factors - including provocation - should be considered when sentencing.
"No reasonable person loses self-control and kills, so the very question is a contradiction," Dr Young said.
"People may have breaking points, but to then act on that and kill is highly undesirable - that's the key principle here."
He said the argument that killers who were provoked were less than murderers was flawed.
"That elevates provocation as a greater mitigating factor than any other - including mental impairment short of insanity, depression, mercy killing.
"It puts a premium on anger. It means that if I killed someone out of anger it then makes me a lesser murderer than if I killed someone in a mercy killing - and there's no rational basis for that."
The commission looked at murder cases in Auckland and Wellington from 2001 to 2005. In 81 cases, the provocation defence was tried 15 times and was successful four times - two of which were for "homosexual advances" or "homosexual panic".
It was used in 2000 in the case of Janine Rongonui, who stabbed her neighbour 150 times after the neighbour refused to look after her children while she tried to sort out child custody issues. She had also found her partner in bed with a friend.
In considering the defence the jury asks: would a reasonable person have lost control in these circumstances?
"There was an English case called Bedder that ran into problems because the defendant was impotent and was with a prostitute who taunted him, and he killed her," Dr Young said.
"The court said the defence wasn't available because the ordinary person is not impotent. That provoked a response that that was a nonsense, and it should have been asked how would a reasonable, impotent person respond."
The defence comes from the days of capital punishment, when it was thought that provoked murderers did not all deserve to be killed. Similarly, after the death penalty was abolished in favour of mandatory life-sentence, the defence remained because it was thought not all killers deserved life behind bars.
The mandatory life sentence for murder was abolished in 2002.
"The historical reason for having the partial defence doesn't exist anymore," Dr Young said.
The commission is recommending that the new sentencing council, to be established next year, writes guidelines for when finite sentencing for murder would be appropriate.
The Government, which will now consider the report, has previously given significant weight to the commission's advice - a law repealing sedition has just passed its third reading in Parliament after the commission recommended canning it.
The two other defences - infanticide and suicide pact - that can reduce murder to manslaughter are also being reviewed by the Law Commission.
