Renewed call for reinstatement of provocation defence

File photo / NZH

The Law Society has renewed its call to reinstate the partial defence of provocation following its successful use in the Bourke manslaughter case, but Parliament is unlikely to listen.

David Bourke, a 48-year-old Whanganui meatworker, killed his brother Timothy last October and was this week found guilty of manslaughter.

He had been charged with murder, but successfully argued that he was provoked when his brother begged him to end his life.

He was able to use the defence of provocation because the offending happened before the law was repealed.

But the Government and the Labour Party have confirmed that they stand firmly behind the decision last year to dump it.

Jonathan Krebs, convenor of the Law Society's criminal law subcommittee, said repealing the defence put New Zealand out of step with other Commonwealth countries.

He said the defence recognised the difference between the worst kinds of murders and those who have killed after being provoked to the point of losing self-control.

Mr Krebs said the two should be different crimes, rather than the same crime with a sentence tailored to the circumstances of the offence.

"We think there is room in our law for diminished responsibility, whether we call it provocation or something else," Mr Krebs said.

"At the end of the day, murder is murder and manslaughter is manslaughter. They're two different offences. There needs to be a process whereby people who lose their self control ... should be allowed the benefit of not obtaining a murder conviction."

He said the society was lobbying Justice Minister Simon Power to revisit the issue, but a spokesman for Mr Power said the Government had no intention of doing so.

"Judges can take provocation into account at sentencing, and the Government considers that that is sufficient [as does the Law Commission]," the spokesman said.

Labour's justice spokesperson Lianne Dalziel also supported the repeal, but she was open to the argument that someone who committed homicide in certain circumstances should not have to live with the stigma of being a convicted murderer.

She noted a murder-suicide case where an elderly man killed his partner, but failed to kill himself. He pleaded guilty to murder and was given home detention.

"If the debate is actually around whether you call someone a murderer, there is some merit when the argument is around this kind of case [the Bourke case]."

However, the sentence would likely be similar with or without a murder conviction, she said.