DAVID GARRETT (ACT): I stand as the representative of the only party opposing this bill, and I am happy to so.

Hon Lianne Dalziel: Shame!

DAVID GARRETT: I hear “Shame!” from across the other side. Well, that party is shameful for attacking me personally and questioning my motives and my commitment to victims. I will leave others to judge that. The irony of today is that I was a great believer in majoritarian democracy, which basically means that the majority, and certainly the vast majority, knows best.

In deciding what we were going to do on this bill, I read widely. I looked at a quote from Benjamin Franklin. He said this about democracy: “Democracy is a discussion between a wolf and a lamb about what to have for dinner.” I am quite happy to be the contrarian here, and say that what the majority might think on this occasion, or any other, might not necessarily be correct. We have seen in recent days, amusingly for ACT members, that the contrarian—some would say denier—mentality about global warming might just be right. So, we will see.

As I said in my first reading speech and in my speech during the committee stage, it is easy to hold up Clayton Weatherston as an example of all that is bad in the justice system. As I said a few minutes ago, the central point is that the defence failed. The jury saw him for the scumbag that he is.

This bill does not entirely remove the power to determine provocation. There have been some disingenuous statements about that. It shifts the argument about provocation from consideration by juries, as arbiters of fact, to judges. It makes provocation a potential factor to be considered by a judge under section 102 of the Sentencing Act, and whether to decide to depart from the presumption and impose a term less than life imprisonment, because to do otherwise would be manifestly unjust.

That Sentencing Act is the same Act that that automatically, in a Kafkaesque or Orwellian way, reduces sentences to just one-third of what is handed down by the judge. The Sentencing Act itself is manifestly unjust. It lets persons who are given 10 years in jail by the judge serve 3½.

This bill before us suggests that we do not trust the community to judge its peers, when, on the evidence quoted by Ms Dalziel and confirmed by me, juries have shown themselves on the whole to be more than capable of fulfilling that role, and deciding whether the partial defence is justified or not.

The other side of the House has tried to portray this defence—and I am sad to say that Chester Borrows, whom I respect greatly, has done this also—as synonymous with a gay panic defence. Well, that is simply not true. One successful case involved a female victim of long-term domestic violence. Another involved the son of a terminally ill woman.

No one has mentioned tonight, and I am not surprised, sadly, the case of Epifania Suluape, a Samoan woman who killed her husband after years of physical and emotional abuse. She had been cheated on countless times, mocked, and taunted by her former partner, who was a noted artist, while she stayed at home in Māngere and looked after the kids. She had been cut with a machete, and even infected with a venereal disease. Finally, the partner said that he was going off with his latest floozie, and she asked him whether that was the case. He laughed at her, and she hit him with a hammer and killed him.

The jury decided that she was provoked. The judge disagreed and said there were no significant litigating factors and that the offence bordered on murder. No Labour member mentioned Epifania Suluape’s sentence of 7 and a half years. Her sentence for manslaughter of 7 and a half years was reduced to 5 years on appeal. But had the trial judge listened to the jury in the first place, there would have been no need for an appeal.

To me and the ACT party, it makes sense to put one’s trust in a jury of one’s peers, rather than a judge to decide whether provocation is an acceptable factor or defence. All of us in the House want to avoid a repeat of the Clayton Weatherston trial; what a terrible spectacle it was. But a law change would not and will not avoid this. All it will do is move provocation from a defence to be put to the jury to a factor to be put before the judge at sentencing. Why would any offender now, even if it is fancifully imaginable, not put the factor of provocation? We will not be sparing the future Elliot families of this country; we will still be subjecting them to the kind of thing that the Elliot family had to put up with—it will just be in front of a judge rather than a jury.

The Law Society and I—we are somewhat unusual bedfellows—would be more inclined to support a law change if we replaced it something else, such as a diminished responsibility defence. In other common law countries that have abolished this defence, they have done so only when it has been replaced by alternate defences like that of diminished responsibility, battered woman, or temporary insanity. The Law Society says, and as I have said, I checked with the submitters thereon, that their position remains that before we tamper and remove a defence that has been a part of our law for centuries, we must replace it with something else, such as diminished responsibility.

Hon Lianne Dalziel: Oh, God!

DAVID GARRETT: I am quoting the Law Society, Ms Dalziel, so do not groan! That member is normally a big fan of theirs. Well, I am agreeing with them on this occasion. One of those submitters said that if provocation was to be abolished, “juries might convict on the alternative charge of manslaughter based on their sympathy for the defendant, rather than on rational grounds.” Another learned prosecutor said: “there is a real possibility of the number of hung juries increasing as they become split over whether those who would argue provocation should be found guilty of the attempt of the offence of murder.”

Finally, I noted in my first reading speech that this bill needed to be considered by a select committee. That is why we voted for it at first reading. I said in my first reading speech that I hoped it would receive at least as many submissions as the *Sentencing and Parole Reform Bill, which had more than 1,000. Members should guess how many submissions were received on this bill. Mr Chauvel loosely talked about a majority of submissions. Well, there were 14 submissions—on a defence that has been part of the common law for centuries.

I have written here in my notes that I urge the House to calm down, take a breath, and think things through. That will clearly not happen. I believe that if we abolish the defence of provocation as we are about to, we will create a whole host of other problems instead. I am happy to be the representative of the contrarian party in the House and vote against this bill.