Friday, 11 September 2009
There is a lot of media rhetoric about the defence of provocation. The recent unsuccessful use of the defence in the Clayton Weatherstone trial, and the Auckland case where it was successful, of Ferdinand Ambach have now attracted a change in the law. The New Zealand Law Society has opposed the change, submitting the present law is adequate. There is a need for clear thinking on the topic. Murder has always required what can be summed up as murderous intent. You have to form the intent that you are going to kill someone. If you are defending yourself, and in the course of the struggle, kill the attacker, you do not have murderous intent. If you are insane, so that you do not understand the nature of what you are doing, then you do not have murderous intent as your mind is clouded by the mental illness. Provocation also requires that you act without thinking, in reaction to something, and if the result of that act is a killing, then you did not have the murderous intent. Sometimes this is run as temporary insanity, but the logic is the same. What we need to avoid is using the unusual and possibly unique facts of these cases to justify a change, without some better evidence that change is required, other than the ever popular political wish to be tough on crime.