End to provocation defence a step closer

CLAYTON WEATHERSTON: Unsuccessfully used the provocation defence.

PETER MEECHAM/Fairfax Media

FERDINAND AMBACH: Found guilty of manslaughter rather than murder after using the provocation defence.

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The partial defence of provocation should be abolished, a parliamentary committee recommended today.

The justice select committee said the opportunity for a defendant to get a murder charge reduced to manslaughter because they were provoked should be removed from statute and common law.

The MPs recommended the Crimes (Provocation Repeal) Amendment Bill should be passed into law.

The committee's report said that the law change would still allow judges to consider provocation as a mitigating factor in sentencing.

This would mean in extreme cases someone found guilty of murder could get less than life imprisonment if the judge believed that sentence was "manifestly unjust".

The MPs said they did not agree with arguments that provocation should remain as a defence for a battered defendant.

"It would be more appropriate for them to rely on self-defence, which could result in an acquittal rather than a manslaughter conviction," the report said.

They also rejected submissions calling for a defence of diminished responsibility saying limited intellectual capacity was best dealt with by judges when considering sentencing.

The partial defence of provocation came under intense debate after Otago University tutor Clayton Weatherston argued he was provoked into stabbing girlfriend Sophie Elliott 216 times.

Weatherston pleaded guilty to manslaughter but the jury found him guilty of murder.

In July, Ferdinand Ambach was found guilty of manslaughter rather murder after killing 69-year-old gay man Ronald Brown.

Mr Brown was beaten with a banjo before the instrument's neck was rammed down his throat. It was alleged he made sexual advances to Mr Brown.

Some supporters of law change said the defence of provocation had generally been used to justify attacks on gay people.

Amach and Weatherston last week both mounted appeals.

- NZPA