It is said that hard cases make bad law.  Tonight, we heard a new maxim from Rodney Hide and David Garrett – hypothetical cases, spun for electoral rhetoric, make for rotten politics.  Let me recall 3 of the hard cases that illustrate the bad law we have now.  Unlike what we heard in the speeches from the ACT Party, these are fact, not supposition – they are in fact the most recent ones where the defence has succeeded.

In the case of R v Ambach, earlier this year, Ambach beat Mr Brown to death with a banjo and then with the weight from a dumbbell.  Ambach ransacked the downstairs of Mr Brown’s home, - whether before or after the beating is unclear.  The Police arrived, and found Mr Brown unconscious on the stairs with very serious head injuries, including the bridge of the banjo rammed down his throat.  While detained in a police cell, Ambach manipulated a cut to his finger and heavily smeared the walls of the cell and his face with the blood.  Police officers in attendance thought his injuries to be serious, owing to the amount of blood, and so took him to hospital.  No other injuries (other than the cut to his finger) were found.  In an interview the next day, Ambach was calm, and through an interpreter gave an account of the previous evening. 

After he had been drinking with Mr Brown for a time, Ambach said that Mr Brown touched him on the thigh.  Ambach said that he indicated that he was not interested in Mr Brown in a sexual way, and that he pushed Mr Brown’s hand away.  Ambach said that he then had another drink, and at some point Mr Brown went upstairs, turning the lights downstairs off.  He called Ambach to come upstairs.  Ambach claimed that he wanted to leave, but said he could not find a way out.  Ambach claimed not to be able to remember anything after that.

However, later in his police interview, he said that he thought he went upstairs.  In no clear sequence, he remembered flashes, including Mr Brown chasing him round a table, and Mr Brown throwing things at him.  Ambach said that he then barricaded himself in, and claimed no memory of how he hurt Mr Brown.  At trial, Winkelman J allowed the partial defence of provocation to be put to the jury.  The partial defence succeeded.  Ambach was convicted, not of murder but of manslaughter, and sentenced to eight years in prison.  The sentence, but not the verdict, is under appeal, but as with Lianne Dalziel and my comments throughout this debate, nothing I have just said bears on the sentencing appeal.

The case of R v Ali was one that I mentioned in my first reading speech on this issue, so I will not repeat its revolting facts here.  I will record that, at trial, Williams J allowed the partial defence of provocation to be put to the jury.  The partial defence succeeded.  Ali was convicted of manslaughter, and sentenced to three year’s imprisonment.

In the case of R v Edwards, on the evening of July 20 2003, Mr McNee was driving a black Audi TT convertible along Karangahape Rd in Auckland.  Edwards, in the company of two friends, noticed Mr Edwards’ car.  Edwards concluded that Mr McNee was looking for somebody to pick up.  Having been released from prison ten days earlier, (he had some 50 previous convictions) he had no money, and so he jumped into the car when it stopped at the nearest traffic lights.  Edwards said that he concluded a bargain with Mr McNee to perform sexually in his presence for $120.  Mr McNee said his home was nearby, and, as Edwards needed a shower, they went there.  Following his shower, Edwards went into the main bedroom.  According to Edwards, after some sexual contact between the two men, he got to his feet, and started hitting Mr McNee with his fists: in court he admitted to striking Mr McNee between 30 and 40 times.  Edwards  said that he felt ‘very angry’, and that  everything became a blur after the first couple of blows. 
When Edwards stopped beating Mr McNee, Mr McNee was on the floor and there was blood everywhere.  Edwards, then made off with items of Mr McNee’s property.  At trial, Frater J allowed the partial defence of provocation to be put to the jury.  The partial defence succeeded.  Edwards was convicted of manslaughter, and sentenced to nine years’ imprisonment.

Each of these 3 cases over the past 6 years shares four disturbing features:

1. The account that we are left with of the events in question is inevitably that of the killer.  The killer goes out of his way to besmirch the character of the victim, portraying him as sexually predatory, and therefore deserving of the agonising death meted out to him.  Grotesquely, the voice of the victim is silenced, and substituted for the only surviving witness: the person who stabbed, beat or otherwise brutalised him to death;

2. Aspects of the evidence indicate dishonesty on the part of the killer.  Ambach’s and Edwards’ alleged blackouts, and Ambach’s smearing of blood from a flesh wound; Ali and Edward’s theft of their victims’ property after killing them; Ali’s wiping of fingerprints from a crime scene and selling of his victim’s property – these are not the actions of people with a propensity to tell the truth – their claims of blackouts during which they experience uncontrolled rage – the essence of the provocation defence - just don’t ring true;

3. Horrific violence inflicted in the killing.  In Ambach’s case, a banjo bridge was found rammed down the neck of his victim.  In Ali’s, a stabbing 5 times.  In Edward’s, 30 or 40 blows;

4. A High Court Judge, in each instance instructing a jury, letting each killer get away with murder by allowing a manslaughter verdict, in each case to a man who claimed to be the unwitting victim of a sexual advance from another.  Uncontrolled rage led to a reward – a lesser verdict – in circumstances where more controlled anger or violence would have seen the killer penalised with a more severe verdict.

Mr Speaker, the overwhelming majority of submitters to the select committee supported the abolition of this outdated and discredited defence.  The Law Commission was right to recommend its repeal.  My colleague Lianne Dalziel was right to introduce a member’s bill, which I was glad to draft for her, to abolish the defence, and she was right to graciously withdraw that bill to allow Simon Power to advance the Government’s decision to progress repeal.  It is wrong for the ACT Party, which masquerades as the liberal Party, which masquerades as the champion of victims’ rights, to be the only group in this House to oppose repeal.  It is an insult to the victims of violent crime, but it shows that Party’s true colours.  They vote today, Mr Speaker, to continue to sanction a defence that legitimises violence against gay men, and against women.  Shame on them, but having heard the ACT contribution, we can understand the coded message being sent about which New Zealanders’ lives, and whose New Zealanders’ votes, are worth more than others’, in their estimation.

Congratulations to the rest of this House for moving to take this Dickensian defence off the statute book by the end of today.