Thursday, 6 August 2009

On the provocation defence

For those outside New Zealand there has recently been a widely publicised trial on the murder of Sophie Elliot by Clayton Weatherston. I did not follow this trial, nor did I follow the high profile murder retrial a few months earlier. However it is of course difficult to avoid knowing about it with frequent items in the newspapers and on television.

Weatherston admitted to killing Elliot but went to court in an attempt to have the murder charge downgraded to manslaughter invoking the defence of provocation. This defence was not successful and Weatherston was found guilty of murder.

According to the New Zealand Herald on the defence of provocation:

The defence is covered under section 169 of the Crimes Act 1961.

The provocation defence allows for a killing that would otherwise be classed as murder to be downgraded to manslaughter if it can be proven that the person who caused the death was provoked.

The provocation must have some relation to a characteristic of the offender.

It must cause the offender to lose the power of self-control of an ordinary person and have induced the offender to kill.

I am not certain whether the defence solely applies to verbal/ written provocation, or also physical provocation. I assume both. Though physical provocation may also lead to self defence.

It is important to note that provocation does not remove all culpability, it merely reduces the blame; and also, perhaps, affects sentencing.

There has been a significant amount of controversy following the verdict because the court case allowed Weatherston to reveal a significant amount of private data concerning Elliot. Complaints along the lines of continuing to persecute the family, insult Elliot from the grave, etc.

2 well written responses have been made by Glenn Peoples and Madeleine Flannagan. I just wish to make a variety of comments.

1. Murder is a horrible situation. It is horrible when it happens, it is horrible being reminded of it, it is horrible going through court, it is horrible on the anniversary of the victim's death. In a broken world we have horror and while we can try and minimise it, it cannot be removed. Decisions about justice must be made on the principles of justice and mercy, not on the basis of preventing bad feelings. Else the law will become unjust and cause more, and even worse horror.

2. The provocation defence was not successful in this instance. Thus the law worked correctly. It is questionable that people consider changing the law based on a wrong case outcome, but to change it after a correct conviction?

3. Evil people do evil. They try and misuse the law to their advantage, they lie, they murder. Law changes do not affect evil men, they disregard them anyway. Removing this defence will not prevent evil people being evil, but it will damage those less evil. It will prevent legitimate provocation from being taken into account. It will also mean that criminals will falsely use other defences such as self defence and insanity to get reduced sentences or acquittal.

4. Culpability is not a dichotomous variable. People have partial blame. To disallow the discussion of events around a crime denies that there are considerations that need to be taken into account and can prevent justice being fully accomplished.

5. Much of this debate would be a non-issue if we did not allow the courts to be treated as entertainment. It is true that open courts have their benefits. Perhaps family court should be more open for example. But allowing anyone to attend a court case is a far cry from broadcasting audio or video. People may have a genuine interest in a case, but most people watching from their living rooms would not put in the effort to attend court daily and listen to the arguments. Allowing media into courts means that the case is effectively served up as entertainment, and it allows the media to sway public opinion by what they show and what they leave out.

I think that the courts should probably be open, but disallow the videoing and recording of cases, save what the courts wish to do for their own purposes. Reporting of cases should be forbidden until after the event. I even wonder whether defendants should be routinely given name suppression, as much as practical, with maintenance of this in cases that are successfully defended.

If this had been in place, then many of the things said by Weatherston about Elliot would have not be known by the public.

That being said, as the situation played out, most of New Zealand hold Weatherston in contempt, and probably more so than had the events not been played out in the media.

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