DAVID GARRETT (ACT): I start by acknowledging my colleague Catherine Delahunty, and more particularly my colleague Kevin Hague, who spoke to me about the *Crimes (Provocation Repeal) Amendment Bill some weeks ago. I thought about it and our caucus has thought about it. I have just walked into the Chamber, Mr Chairman, as you know so I am not entirely aware of what has gone before me. Members will forgive me if I am repeating what has already been said.
Nobody could be comfortable with the success of provocation defences in the case of Mr Ambach, and in the case of — to cite the victim’s name — David McNee. I will start with him. There was an example of a rent boy who was hired by Mr McNee to perform a service. His defence was that the terms of the contract, if you like, went way outside the boundaries, so he panicked and killed Mr McNee. I cannot remember the name of the offender, somebody will remind me no doubt.
Charles Chauvel: Edwards.
DAVID GARRETT: Edwards, yes. If I had been on the jury, and I never have been and never will because I am a lawyer, I would have found a great deal of difficulty accepting that an experienced rent boy who had agreed to do X, could suddenly become beset by panic when he was asked to Y back at the contractee’s flat. However, twelve ordinary people from the community selected at random accepted that defence.
Before I came down to the Chamber, I heard the Hon Lianne Dalziel speaking. She said, and I had the same information, that of 81 cases over the last whatever period it was attempted, the defence was offered in 15 and was successful only four times. Lianne Dalziel said that that was evidence that the defence had done its dash. I am sorry, but to my logic it is evidence of exactly the opposite. It is evidence of the fact that the defence will be rarely argued and even more rarely successful.
I am sure that other speakers have noted, probably my leader, the Weatherston case that everyone is talking about. I am afraid that I do not accept that it is merely coincidence that we are arguing this 6 months after Weatherston. Everyone seems to have forgotten that in the Weatherston case the defence was offered and it was unsuccessful. Twelve ordinary people listened to that swine of a man offer as a defence for mutilating and killing that young woman that he had been tormented beyond belief, beyond endurance, and had killed her.
Hon Lianne Dalziel: They didn’t believe it.
DAVID GARRETT: They did not believe it. That is right. They rejected it.
Hon Lianne Dalziel: So what about *Ronald Brown—mention him!
DAVID GARRETT: Yes, Ronald Brown is the victim of Mr Ambach. Is that right?
Hon Lianne Dalziel: That’s right.
DAVID GARRETT: If I was on that jury, I say to Ms Dalziel, I would have had a great deal of trouble with that. From what I know, and that member was not there either, as the member very well knows—
The CHAIRPERSON (Lindsay Tisch): Order!
H V Ross Robertson: I raise a point of order, Mr Chairperson.
The CHAIRPERSON (Lindsay Tisch): I know what the member will say. I ask the member to sit. The chair cannot be brought into the debate.
DAVID GARRETT: I am well aware of what Ms Dalziel was going to say. The only people who heard all the evidence of that case were the 12 people of the jury who sat through it for the entire length of the trial. We stand to one side and read the newspaper, listen to the television, and I have the same reaction as Ms Dalziel.
I think how this could be. This does not read well. This was a younger man with a much older man—stronger one would think—but those 12 ordinary people sat there and they accepted that defence.
I understand that my leader has already offered one hypothetical example based on the Weatherston case, so I will offer another one. Late in life, I have become a father. It has been the most wondrous experience of my life. Looking around the Chamber, I do not know over on that side or this side who are parents and who are not. But certainly speaking for myself, it has been an incredible change in attitude. It might sound a bit soft, and I do not really care if it does, but I would die for my children.
I hesitated whether to even raise this in the Chamber but every father has the fear of coming upon their child either in the process of being molested or having been killed. Let us hope and praise God that that never happens to any of us here. I would like every member in the Chamber tonight to think about how they would feel and react if they came upon such a scene. If I came across my little Charlie, aged four, being interfered with or worse, I do not know how I would react. But I suspect that I share the feeling of most parents in this Chamber, if not all, that we do not know how we would react. We may go off our nuts literally, to use the vernacular.
Should it not be the case that the defence of provocation is decided—is adjudicated upon—by 12 ordinary people taken from, let us say, this House? We range in age, in sex, in profession, and in education. This House is as good as any as a sample. I would rather my fate be decided—in fact, at the risk of sounding melodramatic, I probably would not offer the defence. So let us talk about a hypothetical father.
Chester Borrows: You’d happily do the time.
DAVID GARRETT: I would probably happily do the time. But some parents would not. I say to this Chamber I would rather have 12 ordinary people having the attributes of ordinary people judging me, and that is what the defence is about. Would an ordinary person having the normal powers of self control react in this way? That is it in nutshell. I would like to think that that decision is made by 12 jurors and not by a judge.
Hon Rodney Hide: Not by Parliament.
DAVID GARRETT: And not by Parliament. We could talk about the Weatherston case. I will be careful because I have got in trouble before, but Weatherston is appealing, I believe. Is he appealing his verdict, Chester? He is appealing so I will need to be very careful. Suffice it to say that senior prosecutors of my acquaintance were astounded that
Weatherston received an 18-year non-parole period. If I had been a betting man I would have won. They all said it would be 25 years at least. That decision was made by a judge; the judge decided that.
DAVID GARRETT: We are talking now about verdicts, because that is the province of a jury. I suspect that before I came down to the Chamber there was great quotation about the Law Commission and supposed learned persons who are in favour of this move. The Law Society, of which I am no champion, is not in favour of the removal of this defence. I took the trouble to ring two senior prosecutors who made submissions to the Law Commission 2 years ago and asked them what they thought now. Both of them were of the view, I have to be fair and say one more strongly than the other, that the defence should remain.
Professor Bill Hodge, a constitutional law expert at the University of Auckland and not a noted right-wing maniac, has noted that the sentences for manslaughter range from nothing, through to life imprisonment. He said that the defence should not be repealed in the absence of alternative defence, such as diminished responsibility—what the Americans call temporary insanity, and which the French used to call crime passionnel. We do not have any of that.
We are being asked to rely on the wisdom of judges to use section 102 of the Sentencing Act to depart from the presumption of a mandatory life sentence. Yes, it is true that that section of the Sentencing Act allows for a less than life sentence to be handed down. But I believe this is a decision that should remain with a jury of the person’s peers.
Hon Lianne Dalziel: Why?
DAVID GARRETT: For the very reasons I have outlined, I say to Ms Dalziel. I do not know whether she is a parent, but it has certainly changed my attitude to life in many, many ways, and it changes my attitude to this.
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