Thoughts of Murder

Over the past three weeks or so we have seen the conclusion of two, both quite bizarre in their way, and quite different, murder trials.

In the first (in chronological order) a man faced charges of murdering a man in his sixties with a banjo. Memory says that it was “forced down the victims neck”, a somewhat terrifying picture to imagine. The defence was based on “provocation” as the victim had (it was testified by the accused) made sexual advances to the accused.

The second, which concluded yesterday also used “provocation” as a defence. The victim, a very good looking young lady and intelligent economics graduate, was stabbed 120 times by her ex, an economics lecturer who had been teaching the victim over the previous several years. His defence was unsuccessful (he was found guilty of murder rather than manslaughter), and there is a considerable uproar about his use of it.

Which raises the very interesting aside that it is OK to be provoked by unwanted sexual advances from a homosexual male, but it is not OK to be provoked by a beautiful young lady.

Alright, that does misrepresent the truth somewhat. The second instance involved taking a fairly large knife with him when he went to return “unwanted gifts”, a man who is “severely narcissistic”, and a considerable element of premeditation. It is that latter factor that did not come out in the first case, and which might (I believe “could”) be a significant factor in the application of provocation as a defence. It needs to be said that in the past ten years there have been several cases (I recollect three) instances where a likely murder charge has been reduced to manslaughter because of the actions of the victim and all were the killing of homosexuals.

In 2007 the Law Commission (a NGO body comprising selected jurists) recommended the repeal of the statutory defence of provocation. That call was never acted upon by the previous government in good part because it was always in the potential for use as a defence in cases already before the Courts and gaining a just cutoff was going to be difficult.

There are several levels to this debate on murder, the legal distinction to manslaughter, and the various “defences” against murder charges (other than fact and evidence naturally). I do not know (and I suspect not) that NZ law has any provision for “justifiable homicide” – the kind of situation where a person kills another to protect a third party for example; not self-defence but one step removed. There is the question of provocation as outlined. There is the insanity defence; “not of sound mind” which has become mired in debate about the difference between personality defect (which the accused in the second instance above certainly had in bushels), mental illness such as depression, paranoia, or schizophrenia, and true insanity as the imperfect mind unable to relate to society or to morality. (I recall one expert describing an accused as “effectively unable to consciously decide to kill”, with a consequential insanity verdict and the Judge ordering indefinite detention in a secure psychiatric facility.)

There has been a similar, though not parallel, debate involving the law and charges that result from killing another with a motor vehicle. There is a progression from “careless use causing death” through to “reckless” before manslaughter can be considered. I don’t know of any instances where a vehicle has been found to be the instrument of murder; doubtless it is possible.

So, how does the law in NZ stand on the matter of killing? As I see it; confused, confusing and far too complex. It is too easily misunderstood. It is too easily misapplied. The rules are not clear. A Judge can spend hours instructing the jury on the boundaries between murder, manslaughter, the level of proof required, the application of “reasonable doubt”. I have to say that the definition of all of those elements comes from many years of precedent. Each decision that gets close to the line makes the definition just that little bit more difficult to see. It must also be said that codifying the definition in statute would be a horrendously complex undertaking without perpetuating the legal niceties of “the reasonable man”, and hence not really providing a solution to the present confusion.

There is an interesting twist in the tale at this point.

The law that governs manslaughter and resulting sentencing is sufficiently flexible that a life sentence could well result, the same penalty as is compulsory for murder. When you add to that the application of non-parole detention (the longest of which to date is 30 years) and there is little difference between the two crimes.

I think that is a good thing.

But, to the beginning...

Is the defence of provocation defendable, or should it be removed from the statute books?