Island Life: The Guilt of Clayton Weatherston
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The reputations of lawyers like Ablett-Kerr notwithstanding, there is no good reason to remove a right to this defence
You mean apart from the fact that the law as it stands is a confusing mess (read the Law Commission report on s169's interpretation over the years - it's quite damning) and that there are other ways of addressing reduced responsibility? (e.g. at sentencing time)
From the report:
Provocation is widely recognised as a troublesome and difficult area of the criminal law. Dissatisfaction with it has been extensively and repeatedly expressed, in all manner of forums. It is evident in judicial dicta at the highest levels.
Submissions to similar effect were received by the Law Commission
in consultation on Some Criminal Defences with Particular Reference to Battered Defendants: the District Court judges’ jury trial committee said provocation was “an all but impenetrable and incomprehensible mess” and the High Court judges described it as “a blot on the criminal law”. There is a vast and complicated literature, addressing and critiquing every possible aspect of the defence, and a similarly vast and complicated body of case law. We have been able to address only a very small portion of that material in this report. Finally, New Zealand law reformers have been consistently recommending abolition for over three decades.The time, in our view, has come to act on such recommendations.
And:
In our view, appellate courts and juries have struggled (and continue to struggle) to come to grips with the provocation defence for one very simple reason: the defence is irretrievably flawed
And the recommendation:
We recommend that the partial defence of provocation should be abolished in New Zealand by repealing section 169 of the Crimes Act 1961; the defendants who would otherwise have relied upon that partial defence should be convicted of murder; and evidence of alleged provocation in the circumstances of their particular case should be weighed with other aggravating and mitigating factors as part of the sentencing exercise.
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Neither was that, really.
In retrospect, no it wasn't -- but I'd like to actually show callous disregard to a grieving mother or two before being sent to stand in the corner. Hell, when your daughter is DEAD I can't imagine anything about the trial of her alleged killer would be pleasant, but if you're going to give evidence then cross examination is part of the deal. And there's no guarantee opposing counsel is going to be particularly gentle about it.
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Maybe it will now be possible to watch the evening news again (only just, though) without having to walk away for 10 minutes while the latest updates from this sad trial are shown.
First it was the Bain retrial. Then the Weatherson trial. Don't worry - the cameras are already being set up in some new courtroom as we speak, to bring the unspeakable details of some degenerate crime into your living room at 6pm as we speak. Again and again.
Talk about the Orwellian jackboot stamping on your face forever.
The media are as complicit in the smearing of Sophie Elliot's name as Clayton Weatherston. they didn't have to report in pornographic detail the horrors inflicted on her. no one made TVNZ or TV3 shows hours of her killer denouncing his victim on primetime TV. The TV coverage has been a disgrace, and TV News in this country has completely lost it's moral compass.
"The people need to see justice being done" said the media.
"We will exercise this new privilege responsibly" said the media.
"We will show restraint and only show what is in the public interest" promised the media.
Well, the jury is in on the media as well. They lack the maturity, ethics and sense of responibility they were entrusted with when they were granted this privilege.
Sian Elias, for God's sake order those cameras out of our courtrooms, and save the people from the tender ministrations of the immoral ghouls of "news" programming in this country.
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@ stephen judd:
the legal defence of insanity was not available (google up M'Naghten rules).
I still don't get why an insanity plea was unavailable to Weatherston, if:
a person is legally insane if she is so deranged that she lacks substantial capacity to appreciate the criminality of her conduct.
(from some online legal dictionary).
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but if you're going to give evidence then cross examination is part of the deal. And there's no guarantee opposing counsel is going to be particularly gentle about it.
I guess one problem there is that Ablett-Kerr dropped the "unreliable witness" thing in her closing address. Sophie Elliot's mother had no opportunity to respond.
I do accept that defence lawyers sometimes/often deal in the deeply unpalatable, but there was something about that -- especially the feigned expression of sympathy that accompanied it -- that crossed the line for me.
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they didn't have to report in pornographic detail the horrors inflicted on her. no one made TVNZ or TV3 shows hours of her killer denouncing his victim on primetime TV. The TV coverage has been a disgrace, and TV News in this country has completely lost it's moral compass.
Aaaah..but the poor things are torn between the 'public needing to know' and financial imperatives.
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Tom, use the 'Off' button (on your tv...)
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The latest Listener (yeah, yeah, I know - their Letters to the Editor read like Kiwiblog comments these days) features several case studies where the provocation defense was successfully used. Looks like a lottery (although as Craig points out, you can tilt the odds by careful victim selection).
Juries don't care much about case law and the legal niceties of the provocation defense. This is presumably the point of using lay people, as homophobic as they may be. But don't feel safe if you're straight - plenty of people have a chip on their shoulders about people with "paper qualifications" and would readily classify many of the posters to this site alongside Weatherstone as insufferably arrogant arseholes. -
Tom, use the 'Off' button (on your tv...)
Why should I have to?
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Kerry: knowing right from wrong is different from being capable of exercising that knowledge. Simple example: even kleptomaniacs generally know stealing is wrong, but they can't help it.
Russell, how do you know Ablett-Kerr's sympathy was feigned? What if she hadn't expressed any at all?
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Why all the invective against Ablett-Kerr? Her job is to give the most effective legal defence that she can for her client. As Dr Sam Johnson pointed out somewhere, it is not the defence lawyer's brief, but that of the judge and jury to judge the guilt or otherwise of the client.
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Russell, how do you know Ablett-Kerr's sympathy was feigned? What if she hadn't expressed any at all?
I was working on the assumption that if she'd been sincere she wouldn't have said it at all.
It seemed like a legal equivalent to concern trolling.
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3410,
Weatherston trial a 'national disgrace'
The trial of Clayton Weatherston was a disgrace as it allowed a killer to continually persecute his dead ex-girlfriend and her family, a women's advocate group says.
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Because you are squealing about the horror of it and you have it within your power to turn it off.
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Simply, because he has no disease of the mind. He has a personality disorder.
Yeah, but, surely he was in a psychotic state when he acted? He was psychotic, deranged - I don't know what else it could be called?
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Because you are squealing about the horror of it and you have it within your power to turn it off.
So you enjoyed it did you? I suppose you must be the TVNZ base, in both meanings of the word?
I did turn it off. I try and keep a sense of decency and sense of still being able to shocked by bad things. It is why I don't watch much TV anymore. I refused to watch any of the trial. Like others here, the bits I was involuntarily subjected to in the background noise of my life were enough to turn my stomach.
But you know - thee comes a time when you've just had enough of the ratings driven holocaust we are subjected to every night. Like it or not, TVNZ and TV3 are still the primary sources of news and information for most New Zealanders. The utter abdication of any sense of morals or even ethical responsibility by television news in this country means as far as I am concerned they've got no more right to be in our courts than a Mr. Whippy van.
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oh just you guys wait .... TVNZ8 bound to be TVNZ-CourtTV ..... best do to over watch these trials least the TV demographers get any ideas ....
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The media are as complicit in the smearing of Sophie Elliot's name as Clayton Weatherston.
But has her name actually been smeared? I mean, does anyone here actually think she's a provocative slut who deserved to be murdered?
Everyone I've talked to about this seems to have horrified by Weatherston's claims about Elliot and seen right through them.
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lest the TV demographers get any ideas ....
Depends how you do it.
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Wasn't me, but anyways I like the provocation defence. If a killer is provoked to kill they need to be granted the provocation defence.
So Angus, do you think being gay is a justification for murder? What about being a woman?
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Provocation defense, might be used by a victim of ongoing domestic abuse, that retaliation. But it would need to be proved that the ongoing abuse had caused PTSD Complex or some such excuse thats plausible to, a jury.
Such a defence has never been successful. Instead, provocation exclusively aids violent homophobes acting on trivial "provocations", and violent misogynists.
These people didn't lose self-control. They simply refused to exercise it, then used bigotry to minimise and excuse their actions.
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Wasn't me, but anyways I like the provocation defence. If a killer is provoked to kill they need to be granted the provocation defence.
Angus: Let me put it this way, there are parts of the world where being seen in public with a man who is not a blood relative or spouse is sufficient "provocation" for a woman to get, at least, a good beating. In this country, it would be regarded as common assault. I know where I prefer to be.
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Yeah, but, surely he was in a psychotic state when he acted? He was psychotic, deranged - I don't know what else it could be called?
Psychotic is when you think something is happening that isn't. If he thought she was actually literally Satan, that would be psychosis.
He was an angry, angry jerk, who appears to have been trying to obliterate her.
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... and to be clear, that's 'seeing-things' kind of something-happening-that-isn't, rather than 'matters-of-interpretation'.
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So you enjoyed it did you? I suppose you must be the TVNZ base, in both meanings of the word?
Tom, you're being an arse now.
I am capable of turning off my tv or changing the channel if there is something on that I don't want to watch.
What I don't do is throw up my hands in horror when there is such an easy avenue to avoid footage that disgusts me.
And you can stick your petty insults in the usual place.
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