(Oct. 8, 2009) Under New Zealand's Crimes Act, 1961, provocation is a partial defense in homicide cases that can result in a person being found guilty of manslaughter rather than murder. (Crimes Act 1961, No. 43, ss. 169-170, New Zealand Legislation website, http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html?
search=ts_act_crimes+act+1961_resel&p=1&sr=1 (last visited Oct. 3, 2009).) This defense was created at a time when the mandatory sentence for murder was capital punishment, and it was retained after capital punishment was abolished and replaced by mandatory life imprisonment. (Bills Digests No. 1704, New Zealand Parliament website, http://www.parliament.nz/en-NZ/PB/Legislation/Bills/BillsDigests/3/5/2/4
9PLLawBD17041-Crimes-Provocation-Repeal-Amendment-Bill-2009-Bills.htm (last visited Oct. 3, 2009).)
However, since the enactment of the Sentencing Act 2002, life imprisonment for murder is no longer mandatory if the sentencing judge finds that such a sentence would be manifestly unjust. (Sentencing Act 2002, 2002 N.Z. Stat. No. 9, s. 81, New Zealand Legislation website, http://www.legislation.govt.nz/act/public/2002/0009/latest/
DLM135342.html?search=ts_act_sentencing+act_resel&p=1&sr=1 (last visited Oct. 3, 2009).) Therefore, the government has introduced the Crimes (Provocation Repeal) Amendment Bill 2009 (49th Parl. Bill 64-1) to remove sections 169-170 from the Crimes Act. Section 169 currently defines provocation in general terms and section 170 specifically provides that “illegal arrest may be evidence of provocation.” (Crimes (Provocation Repeal) Amendment Bill, New Zealand Legislation website, http://www.legislation.govt.nz/bill/government/2009/0064/latest/DLM22581
02.html (last visited Oct. 3, 2009).)
Bill 64-1 incorporates the recommendations contained in Law Commission Report 98, entitled “The Partial Defence of Provocation,” of September 2007. The Law Commission studied the issue and found that judicial interpretations of what is sufficient to constitute provocation were often contradictory and too confusing to be of assistance to judges and juries. The Law Commission also found that the interpretations were of little assistance to persons who are mentally impaired, because the standard usually used to decide whether a person was provoked is how a person with ordinary self-control would have responded in the situation. (The Partial Defence of Provocation (Sept. 2007), Law Commission website, available at http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_138_366_R
The enactment of Bill 64-1 would remove the partial defense of provocation from the Crimes Act, 1961, but it would still allow judges to consider it as a factor in sentencing a person convicted of murder. (Id.)