Speech: Flavell - Provocation Repeal Bill
te-pati-maori
Mon Aug 31 2009 12:00:00 GMT+1200 (New Zealand Standard Time)
Speech: Flavell - Provocation Repeal Bill
Monday, 31 August 2009, 11:04 am
Speech: The Maori Party
Crimes (Provocation Repeal) Amendment Bill
First Reading Tuesday 18th August
TE URUROA FLAVELL (Māori Party—Waiariki): Tēnā koe, Mr Deputy Speaker. Kia ora tātau katoa e te Whare. Ko tāku i te tuatahi, i a tātau e kōrero nei, mō te āhuatanga o te hunga kua ngaro atu i te tirohanga kanohi. Pēnei te āhuatanga i runga i te marae, me poroporoaki te hunga kua ngaro atu i ngā wiki, i ngā marama, i ngā tau kua hipa. Kua areare mai ngā taringa ki te āhuatanga o ngā kōrero a tēnā, a tēnā mō te hunga kua kōhurutia. Nō reira, ka tangi te ngākau mō te āhuatanga o ngā kōrero ka mutu, hoi anō i a tātau e noho nei i roto i te Whare Pāremata i tēnei pō, waiho rātou kia moe.
Ko tā tātau he whakatikatika i te ture, kia whai i tētahi huarahi hōu, kia kore tēnei Whare Pāremata e kōrero mō ngā take, ngā raruraru kua puta i te pō nei ā ngā tau kei mua i te aroaro. Ko tā te pire nei he whakatikatika i te Crimes Act. Kei roto tonu i tērā wāhanga e mea ana he momo karo tēnei i te whakakārangirangi, te mātātoa rānei mō ngā hāra nui, mō te kōhuru tonu.
I raro i te ture i tēnei wā, ka whakaitingia te whakapae ā-kōhuru ki tērā o te whakapae ā-mate tūpono mēnā ka mate tētahi i raro i te korowai o mātātoa, o akiaki rānei. Ka tau tonu tēnei āhuatanga o te kōhuru engari, ka āhua whakarāpopotohia te roa o te noho i te whare herehere. Hei tā te pūrongo o te Kōmihana ā-Ture o te tau 2007, me whakakore i tērā wāhanga o te ture e mea ana, arā, ko tēnei mea te mātātoa.
Ehara i te mea he maha ngā wā kua kōkirihia taua huarahi, ehara i te mea i waimaria. O ngā kēhi kōhuru e 81 i waenganui o ngā tau 2001 ki te 2005, e 15 i whai i tēnei momo huarahi, e rima noa iho i waimaria. I whakapapa mai tēnei wāhanga o te ture, kaua i tērā rau tau engari, nō te rau tau e 17 kē i kawea mai tēnei tikanga i roto i te Criminal Code Act 1893, ā, ko tōna pūtake mēnā ko te kōhuru tōna mutu mai, “he kōhuru tonu nā runga i te mura o te ahi, he mahi ā-ngākau, he mahi ohorere”.
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Kāti, ko te mate kē, kia mōhio mai tātau ko te tau 1893 te tau i whakaaetia kia pōti tonu te wahine i Aotearoa nei. Koia nei te pōrangi o tēnei momo ture. He mea nui tēnei whakatau i te mea, hei tētahi ahorangi ā-ture nei i te Whare Wānanga o Wikitōria, hei tā Elisabeth McDonald me āna rangahau, i te nuinga o ngā momo kēhi ā-mātātoa nei, koia ērā ka puta i te wā ka mea tētahi tāne i patu i tētahi kia mate, nā ngā mahi whakaiti, whakahē rānei ā tētahi ki a ia, nā tana pōhēhē rānei he ngoikore te ure, he koretake te ure, he ure tautau ēnei momo āhuatanga katoa.
Nō reira, he whakaiti tonu te titiro ki ēnei momo tohe. I ngā rā o mua, mēnā he whakakairanu te mahi, he moe wahine tahi, rua, toru rānei, ā, ka patua te wahine, he “crime of passion” tērā. Arā, anō nei e tika ana kia mate te wahine. Hoi anō, i ngā tau 90 ko tā wētahi whakataunga Kōti Pīrā, kāo. Ahakoa he whakakairanu te mahi ehara tērā i te karo, i te whakautu rānei mō te mahi tīwēwē a te tangata. Nō nā tata nei kua kōkirihia tēnei momo karo ā-mātātoa nei i te kōhurutanga o te hunga moe whakaeneene ā-tāne nei ka mutu, kua puta te kōrero, arā, te “homosexual panic defence”.
Ko ētahi kua kī, ko ngā karo ā-ture ngā tikanga ā-iwi me kī, nā te mea nō tētahi iwi tētahi. I te Kōti Pīra, i puta te kōrero ko te “slow-burning anger or passion” he āhuatanga o te iwi o Hāmoa nā te whakapapa rānei, nā te ira rānei o te tangata i pērā rawa te tangata hara. Kāre mātau i te kite i te tika o tēnei momo whakaaro.
He rangirua te mutunga mai. Kei roto i te Sentencing Act wāhanga 27 tētahi kōrero e tono nei ki te kōti, kia rongo i ngā kōrero ā-whānau, ā-hapori, ā-iwi tonu o te tangata hara. Mā tēnei ka kitea ko te tikanga o ēnei kōrero ā-whānau, a-hapū nei ki tōna hara ka mutu, ko ngā momo huarahi hei whakatikatika i te hē. Tērā pea, ka whai wāhi ko te tangata hara me te tangata i rongo i tōna hara kia noho tahi. Nō reira, he kōrero nui ēnei kia whai wāhi te wāhanga ā-tikanga iwi i roto i ngā whiriwhiringa. Nō reira, kei roto i te ture, arā, te Sentencing Act tētahi wāhanga e anga tonu atu ana ki ngā tikanga ā-iwi, kāre mātau i te kite i ētahi painga o te noho o tēnei mea ā-tikanga nei i roto i tēnei ture hōu.
Greetings to you, Mr Deputy Speaker, and to us all, the House. The first thing for me to do as we debate this matter is to acknowledge those who have passed away. This is the custom on the marae, where we farewell and acknowledge those who have died in the weeks, months, and years past. Without a doubt, references by those in the debate so far about murder victims have caught the attention of those listening in. So while we lament the nature of what has been stated, let us who are seated about the Chamber this evening spare a thought for those who have passed on from sight, and allow them to rest there.
The task before us in this Chamber tonight is to amend the law, seek out a new path, and debate issues and problems for the years before us. This bill amends the Crimes Act by repealing sections that provide for the defence of provocation. In current law a person charged with murder can have the charge reduced to manslaughter if he or she caused death under provocation. It is partial defence, in that the defendant is still charged with the killing but able to avoid longer sentences.
The Law Commission’s 2007 report recommended that the partial defence of provocation be abolished. However, it is not used often, and often has not been successful. Of the 81 murder cases between 2001 and 2005, 15 used the defence of provocation, of which five were successful. It is another case of a law that has its origins not just in the last century, but the 17th century, and was brought here in the Criminal Code Act 1893, which required that homicide should have been committed “in the heat of passion caused by sudden provocation”.
But the trouble was, and as ironical as it may seem, 1893 was the year that women in New Zealand were allowed to vote. That is how ridiculous this type of law is. This is a crucial statement, because, according to research by Victoria University law professor Elisabeth McDonald, the majority of provocation cases are when a man argues he killed because of a perception that his sexuality or sexual pride was being threatened. Formerly, provocation was the “crime of passion”, implying that infidelity was a valid justification for a man to kill, and, as a consequence, the woman being killed. More recently, in the 1990s, some Court of Appeal judgments stated that infidelity is not enough to deprive the ordinary person of self-control. More recently, the defence of provocation has been used as a defence in the killing of gay men, leading to an outcry that this is a “homosexual panic defence”.
We are mindful that cultural factors have been described in the context of the defence of provocation. In the Court of Appeal, the description “slow-burning anger or passion” was used as being a characteristic of the Samoan people, implying that a racial or ethnic tendency towards sudden passion may well be seen as a characteristic of the offender. We cannot see the sense in this line of thinking.
Confusion is the outcome. Section 27 of the Sentencing Act 2002 makes it explicit that offenders may request that the court hear views on the personal, family, community, and cultural background of the offender. That can ensure that the background may be related to the offence, and, importantly, processes are available to resolve issues relating to the offence, involving the offender and his or her family or community, and the victim or victims of the offence. These are really important provisions that allow for social considerations. Therefore, because there is already provision within the Sentencing Act, albeit provision that is tragically underused, we do not think the concerns around cultural knowledge justify retaining the defence of provocation.]
Just in closing then, and to summarise some of the points we have tried to make, I firstly congratulate the Minister of Justice on behalf of the Māori Party on putting forward this bill to address this issue. I have heard the many discussion points from other speakers tonight, and I concur with many of the sentiments.
I make it very clear that the Māori Party does not want to take away any legal mechanisms that serve to protect women and children from violence. We know that provocation has been a difficult defence for battered women to prove. The principle that has been most in question has been the requirement for the loss of control. The implication for the defence of provocation is that the response is a sudden, angry outburst rather than a slow-burning build-up. Yet how crazy is this? The defence has been used to reduce the responsibility of men who have killed their wives because their wives have reported a severe beating to police after promising under threat of violence not to do so.
We are a party that has a vision and talks a lot about whānau ora, and that aligns with whakapapa, whanaungatanga, wairua, mana, and mauri. We know that the defence of self-defence—namely, section 48 of the Crimes Act—has actually been far more effective for the specific case of battered women in domestic violence situations. Given all the factors discussed tonight by all the speakers, the Māori Party will be supporting this bill to the next stages. Clearly, some major issues need to be tidied up within the law around this aspect, and we hope that we get time to talk about not only the specific issues named by members of the House but also the bigger issues about finding a cultural angle that might be able to give some assistance to the discussions as the bill goes through the select committee process. Kia ora tātou.
ENDS
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