Published: 12:42PM Thursday July 23, 2009
Source: NZPA
Source: NZPASimon Power
Justice Minister Simon Power says he wants the defence of provocation scrapped.
Debate has raged over the defence during the trial of Otago University tutor Clayton Weatherston, 33, who was found guilty of murdering his girlfriend Sophie Elliott .
He had pleaded guilty to manslaughter but denied murder on the basis of provocation, effectively also putting Miss Elliott on trial.
Weatherston had stabbed Miss Elliott 216 times.
Provocation was also used during the trial of Ferdinand Ambach, who was found not guilty in Auckland this month of murdering Ronald Brown, 69, but guilty of manslaughter .
His defence argued that Brown came on strongly to Ambach and might have attempted to rape him, leading Ambach to lose control and beat him with a banjo before ramming the stem down his throat.
Power said in a speech to the Institute of Policy Studies on Thursday that he did not believe the defence of provocation had any place in law.
"It wrongly enables defendants to besmirch the character of victims, and effectively rewards a lack of self-control," he said.
"The partial defence of provocation will be the subject of reform."
Work was also under way on domestic violence legislation aimed at improving the responsiveness of the Family Court and enhancing the protection of children.
It would:
-Clarify when children remained covered by a protection
order;
-Prevent the wrongful removal of children from New Zealand;
-Support programme attendance;
-Clarify the treatment of temporary orders; and
-Better align the Domestic Violence Act 1995 and the Care of
Children Act 2004.
Power has also asked the Law Commission to look at how sexual violence was dealt with.
He is considering reforms such as introducing a positive definition of consent; someone would have to say "yes" rather than a defendant being able to argue they did not say "no".
Evidence about the complainant's previous sexual relationships would be inadmissible without the judge's prior agreement, and the court would have to consider any steps the defendant took to ascertain consent.
"I have also asked the Law Commission to look at alternatives for dealing with sexual violence cases before the courts, with specific direction to investigate inquisitorial models".
"This is a debate we need to have if we want to improve on the reporting rate of 9-12 percent for sexual violence offences," he said.
Miss Elliott's father, Gil Elliott, said yesterday the provocation defence should no longer be an option.
"I think there are people who will back us on that."
Labour Party justice spokeswoman Lianne Dalziel said she would seek permission from Parliament to introduce a member's bill that would abolish the defence of provocation.
Dalziel and Labour's associate justice spokesman Charles Chauvel said in a joint statement it was "an anachronistic relic" and had to be repealed.
Women's Refuge chief executive Heather Henare said the provocation defence was based on archaic notions about violence.
"Once upon a time, society accepted that an affront to male privilege or dignity was a reasonable excuse to fly into a homicidal rage.
"This trial turned justice inside out. The killer became the victim and Sophie Elliott was portrayed to us all as he chose to describe her. Unfortunately for Clayton Weatherston, the jury didn't buy it and nor did the hundreds of thousands of New Zealanders who watched him giggling on their televisions."
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