Protection a primal instinct

Michael Murray appears in the Auckland High Court accused of murdering Connor Morris. Photo / Jason Oxenham

The Connor Morris murder trial has left me wondering what I would have done in Michael Murray's shoes that fatal night. I know I would be very scared and not especially rational.

I can imagine grabbing the nearest weapon and waving it about in the hope of averting an attack. Then suddenly a man is attacking my little brother, intent on serious injury. I shout for him to stop. He doesn't. I am afraid I would all too readily lash out blindly without thinking, with a primitive instinct to protect my brother and no thought of consequence. "I wasn't thinking at that time, everything was just happening so fast," Murray said in court.

Back with my senses I would be despairing that a man was dead but thankful my brother was alive. I would accept I must now face the consequences and the full might of the law.

But I would like to tell the jury of my peers that I had been provoked beyond reason. That such was the circumstance that I, as an ordinary person, had been "deprived of the power of self-control" and was thereby "induced to commit the act of homicide".

That yes, I had killed a man, but no, I was not a murderer. For hundreds of years such a partial defence to murder was available and, if successful, led to a murder charge being dropped to manslaughter.

But in 2009 an emotionally charged Parliament did away with that centuries-old defence.

The emotion was understandable. Killers of gay men had used the "gay panic defence" to reduce a murder charge to manslaughter. Their defence was that the victim had sexually advanced upon them and that they had "lost it". The partial defence of provocation seemed to discriminate against gay victims.

The provocation defence came into wider public focus when Clayton Weatherston claimed Sophie Elliott had provoked him to slay her viciously. It was sickening that a brutal murderer of a woman could "re-victimise" her in death.

His defence failed but people were appalled that such a defence was available to him.

Sophie's Mum said: "We've thought about it a lot over the last few weeks — probably there's not very many murders where provocation is justified however, in our society it's never justified — thou shalt not kill and that's the bottom line."

It was hard in the face of such cases to defend the defence. The following year all parties bar Act voted to scrap the provocation defence, to much cheering. The naysayers, of which I was one, were jeered at.

But I keep replaying what any one of us would have done in Murray's shoes that awful night and that, surely, with hundreds of years of judicial wisdom behind him, he should have had the opportunity to argue he had been provoked beyond all reason.