Friday, December 08, 2006


Our ugly "provocation" defence has claimed another victim, with a man who beat his wife to death with a cricket bat in the belief that she was going to leave him for another being convicted of manslaughter rather than murder. The message the jury has sent is absolutely clear: that it is acceptable to kill your wife if the bitch was thinking of sleeping with someone else.

The phrasing is deliberate: it makes crystal clear the bigoted and backward attitudes protected by this law. The killer thought his partner was a posession, and he reacted to evidence she might not be with murderous rage.

In such circumstances, anger is understandable. But violence is inexcusable. Applying "provocation" in such cases essentially blames the victim for her own death, when the problem is clearly the killer's utter lack of self-control. Such people should not be rewarded in our legal system by having the seriousness of their crime diminished. Instead, it is time to ecrasez l'infame and repeal this atrocity, before it provides an excuse to any more murderers.


I once heard, and while it is possibly apocryphal it has a ring of truth to it, that in the UK (for some period) women who killed their male partners were more likely to be found guilty of murder than men who killed their female partners (who had a higher proportion of manslaughter convictions).

The argument was that men are more likely to (be able to) kill a woman with their bare hands and/or a blunt object grabbed from nearby. Women are more likely to (need to) grab a knife, possibly after being attacked and running into the kitchen. The action of _choosing_ a weapon was seen as premeditation and tipped the balance to murder.

Not only do the rules about provocation lead to some stupid outcomes, but other of the criteria can be equally messy.

If we want to maintain a distinction between murder and manslaughter then we do need to take into account a whole range of factors, which include premeditation and intent. Those factors also need to be weighed up in sentencing after a murder conviction.

There is a relatively coherent argument that provocation may, in some cases, lead to a situation where there may have been less intent. For example one can argue that someone who loses their temper and kills with a single punch may have had less intent to kill than someone who lay in wait for their victim with a knife.

Part of the problem with "provocation" as a defense is that it makes it special, rather than simply a contributing factor to an argument about lack of intent.

The second problem is that it feels like it blames the victim, something which is completely unjustifiable. The loss of self control in the face of something upsetting is an entirely one sided fault.

Posted by Anita : 12/08/2006 02:34:00 PM

was a provocation defense the reason for the manslauaghter rather than murder conviction or was it to do with intent? The article doesn't really say.

Given that he didn't even plead guilty to manslaughter, suggesting little remorse, one hopes the sentence is longish.

Posted by Anonymous : 12/08/2006 02:55:00 PM

Neil: yes. There's other reports on Stuff and Hawke's Bay Today which provide a little more of the context. The defence specifically argued provocation, claiming that "He did what he did because he was overcome by emotion".

In my book, being "overcome by emotion" is not and never will be an excuse or justification for killing someone.

Posted by Idiot/Savant : 12/08/2006 03:10:00 PM


Section 167b of the Crimes Act states that culpable homicide is murder:

If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not

That is it can be murder even if there was no intent to kill but that the behaviour was likely to kill and was also reckless.

So if he meant to hurt her in any way when he beat her with a cricket bat then it's probably murder (as I would think it was likely to kill and he was reckless). Note that he didn't have to intend to cause her serious injury - just mean to cause her any injury.

And I doubt any judge or jury would find that someone who beat their partner with a cricket bat did not mean to cause her any injury.

A lack of intent to kill would be taken into account at the sentencing after the murder conviction.

So his best option under our current (insert adject here) law was to argue that her actions deprived him of his power of self-control. That is to argue that she behaved so badly he couldn't help beating her to death.

Posted by Anita : 12/08/2006 03:20:00 PM

It's disgusting, but let's not forget that he was convicted.

Provocation - yet another area of liberal interpretation. Oh the irony.

Posted by Anonymous : 12/08/2006 03:36:00 PM

anita, the defense did argue provocation but I'm not sure this played a part in the verdict of manslaughter rather than murder.

The article I/S links to reports the Judge's instruction to the jury as -

"... they first had to consider whether Noa intended to kill his wife, or assaulted her in a way that was likely to cause the death.

"If the Crown had not proven intent, then the jury had to return the manslaughter verdict, but if it found Noa meant to kill his wife, then the jury still had to consider any degree of provocation."

So I infer, and might be wrong, that the jury's decision was based on intent. Now, I happen to agree that hitting someone repeatedly in the head with a cricket bat must imply a intent to kill, but the jury didn't think so. I had the same thoughts about the case of the teenager throwing a large rock off a motorway bridge recently.

Posted by Anonymous : 12/08/2006 03:41:00 PM

I might look at provocation a little in the future, but since when has convicting someone of an offence with a maximum sentence of life imprisonment connoted acceptance of that behaviour?

Posted by Graeme Edgeler : 12/08/2006 04:32:00 PM

Perhaps "acceptance" is the wrong term - but this scumbag has certainly had "...the seriousness of their crime diminished" by being found guilty of manslaughter rather than murder. "Provocation" implies it's OK to fly into a murderous rage if things don't go your way, and "lack of intent" implies bozo is so stupid he can't figure out that smacking somebody in the head with a cricket bat is likely to kill them - if the fuck really is that out of control or that stupid, we don't really want to have him around, do we?

Posted by Psycho Milt : 12/08/2006 06:55:00 PM

I think you are making a classic error in analysis. Good law is NOT about punishment/revenge. If it was we would kill/ beat prisoners.

a justice system is about things like protecting society and discouraging anti social behaviour.

What provocation does to an extent is to say: ok this person was under exceptional circumstances and we should give him LESS punishment than a person who is
A) more dangerous to society
B) more clearly 'in control' of their actions (ie easier to discourage then and people who would identify with them)

Posted by Genius : 12/08/2006 08:21:00 PM

Genius is exactly right.

Also, we do not know if this guy successfully raised provocation.

P/M said: ""lack of intent" implies bozo is so stupid he can't figure out that smacking somebody in the head with a cricket bat is likely to kill them - if the fuck really is that out of control or that stupid, we don't really want to have him around, do we?" which indicates P/M believes he was guilty of manslaughter without the need for provocation.

Manslaughter also carries a life sentence, but is less serious in practical terms as it gives the Judge more discretion in sentencing(the Judge having seen all the testimony etc). the provocation defence has many benefits (BWS for one), and should not be disregarded lightly, even after an apparently unsatisfactory outcome. Manslaughter is in no way an 'acceptance' of despicable behaviour.

Posted by james cairney : 12/08/2006 11:11:00 PM

P/M was being sarcastic - he doesn't believe anyone really is that stupid. Like I/S said, this sack of shit thought another person was his posession and didn't like finding out she wasn't. Finding him guilty of manslaughter implies it was understandable for him to be murderously angry about that - and that's bullshit.

Posted by Psycho Milt : 12/09/2006 06:54:00 AM

This comment has been removed by a blog administrator. Posted by Michael : 12/09/2006 01:17:00 PM

It's all very well to make judgement based on a few media reports.

It's another thing to be a jury who made their judgement based on all the evidence presented.

I'm not saying that the jury got this one right, just that I trust them to get it right 99.9999% of the time, and those that they get terribly wrong are usually eventually corrected on appeal.

P.S. You don't enter a plea of Guilty to Manslaughter at the start of a Murder trial. You plea not guilty to the Murder charge and ask the jury to return a verdict of Guilty of Manslaughter. Presumably, if the charge had been reduced by Crown Law (and the belief that a murder conviction was unlikely) a guilty plea would have been made.

Posted by Michael : 12/09/2006 01:25:00 PM

It's no surprise that ACT member Lindsay Mitchell sides with the jury's decision on this. I sometimes wish she HAD got into parliament, where her misogynist views would be subject to greater public scrutiny and challenge.

Posted by Anonymous : 12/09/2006 04:09:00 PM

Mitchell's views are nothing short of grotesque - usually laughably so.

Just as well she wasn't Brash's wife, or he may have met an unfortunate end.

Posted by Anonymous : 12/09/2006 05:18:00 PM

So evil can be excused except if the agressor is a Man, White, or the victim was gay.

Posted by Anonymous : 12/09/2006 10:37:00 PM