More on Weatherston case
Very pleased to see some stories on Sophie Elliott, so that Weatherston’s warped version of reality is not the final say on her. The Herald reports:
While her family remember a loving daughter with everything to live for, prominent academics overseas have described her as having a “beautiful mind” and an exciting career ahead of her.
Peter Lambert, economics professor at the University of Oregon, Jean-Yves Duclos, editor of the Journal of Economic Inequality and economics professor at Laval University in Canada and Sir Tony Atkinson, professor of economics at Oxford University, said Sophie had remarkable ability for a young person, exhibited considerable prescience in her thinking and could have been a leader in the field of welfare economics.
Professor Lambert said a paper she wrote titled, Why measure inequality? A discussion of the concept of equality, which was published in this month’s edition of the Oxford University economics journal Oxonomics, was “easily the best essay on inequality” he had ever read.
Professor Duclos called the paper a “remarkable piece of research for such a young person”.
In a few paragraphs, Sophie had been able to strike right at the core of welfare economics and grasp many of its complex philosophical and ethical issues, he said.
“Elliott certainly had a beautiful mind.”
I recall reading, shortly after her murder, that her ambition was to be the first female Governor of the Reserve Bank, and thought what a wonderful ambition to have. And from the sounds of it, she may have got there if not for Weatherston.
Incidentially, does anyone have access to, or have a copy, of the paper which just got published? I’m interested to read it.
The Herald has a less flattering profile of Weatherston. While my thoughts are mainly with the Elliott family, I do feel great compassion for the Weatherston family also as they cope with the horror of what Clayton did and what he is.
They also talked to Lesley Elliott. I twittered yesterday that Lesley was my hero of the month for hugging after the verdict both Clayton’s mother, but also his lawyer – Judith Abblett-Kerr. True class. Lesley wants to:
In an interview with the Herald prior to the verdict, Mrs Elliott said she now wants to focus her energies on keeping young women away from abusive and dangerous relationships. Her daughter had complained of being assaulted by Weatherston prior to the killing.
“My legacy to Soph is to somehow get to girls in their late teens and twenties, when they start to date guys, and [explore] what is acceptable behaviour and what isn’t,” she told the Herald.
The sad reality is that if Sophie had dumped Weatherston the moment he became abusive, she might be alive today. And after he assaulted her she should have never seen him again. Her desire to try and end the relationship as friends, ironically acted against her.
The issue of whether provocation should be a partial defence to murder is canvassed in this article. I am with Women’s Refuge:
Women’s Refuge chief executive Heather Henare said: “Because of the way the defence was run, this trial became a perverse opportunity for a killer to continue to persecute his victim and her family after her death.
I actually think that was part of his plan all along.
“This trial turned justice inside out. The killer became the victim and Sophie Elliott was portrayed to us all as he chose to describe her. Unfortunately for Clayton Weatherston, the jury didn’t buy it and nor did the hundreds of thousands of New Zealanders who watched him giggling on television.”
Never has a defence strategy so backfired, in my opinion.
Stuff reports that the provocation partial defence may go:
Killers will lose the right to claim provocation as a defence after murderer Clayton Weatherston’s attempt to smear his victim.
It is understood Justice Minister Simon Power wants the controversial defence scrapped as soon as possible and will announce his intentions today.
I think such a move would be exceptionally popular.
Stephen Franks argues for why the partial defence should be retained. He says Judges should set a higher threshold for its use, but it should be retained:
From this case the judges should take a lesson, and simplify the defence of provocation. It should only relate to what would provoke ordinary reasonable people, not drunks or P addicts or nut cases, or homophobes. The judges should now punish those who turn it into mockery.
From other cases they should accept that ordinary people want the law to distinguish between those who start fights or cause trouble, and those who respond even if their response is “disproportionate”. The criminal should bear the risk of significant disproportionality in the response to thuggery, rape or robbery , even if common sense says the defence can only go so far.
The Press reveals the Weatherston defence team tried to get photos of Sophie’s wounds supressed:
King told the court that the autopsy photographs were highly prejudicial because of their graphic and disturbing nature. “They illustrate the painful death of a beautiful young lady in her prime, and the injuries are simply horrific,” King submitted.
He said they provided little, if any, probative value and would “likely distract the jury from their proper task in assessing the partial defence of provocation”.
King entered a “back-up submission” that three photographs showing the injuries to Elliott’s face should be removed.
I thought that number and nature of the wounds was an essential part of the case. I’m glad the Court of Appeal dismissed the defence’s application.
The court ruled that the submissions were “hopeless” and the photographs were highly relevant to the issues at trial.
They had been carefully chosen to minimise their prejudicial effect as much as possible.
“Any remaining prejudicial effect is a natural consequence of the nature of the wounds inflicted by Mr Weatherston,” the court ruled.
Exactly.
July 23rd, 2009 at 8:12 am
The defence of provocation should go. I don’t agree with Franks on this one. It’s no good judges setting a higher threshold if ultimately the test is too complex for juries to apply – which will inevitably be the case with any test.
Judges and juries have trouble understanding the law, as it’s so complex.
And why do we allow a partial defence for rage killings but not mercy ones?
Let’s just abolish it and let judges deal with any mitigating circumstances at sentencing time.
July 23rd, 2009 at 8:16 am
I had this on the other thread about this cas so I have copied it over here
Could I just ask 2 questions for the people who support the abolition of the provocation defence (and just so people know I never thought this was going to work in this case). Is Battered woman Syndrome still classed as a provocation defence and as the Woman’s Refuge supported Gay Oates cold blooded murder of her husband as he slept will they now acknowledge that they got it wrong
July 23rd, 2009 at 8:21 am
With the abolition of the death penalty for murder and more discretionary sentences available in murder there is really no point to the provocation defence. The ordeal of the Weatherstone trial shows how spectacularly hideous the defence can be. Provocation is not a defence in any other criminal charge but it is a relevant factor in sentencing. Now with the changes in Murder sentencing (which were unique to that charge) the defence can now be removed.
July 23rd, 2009 at 8:28 am
Why do you keep on and on about this case ? A “pretty girl” studying economics ?
Leave it alone it demeans you
July 23rd, 2009 at 8:32 am
I think provocation should be a sentencing consideration, but not determine the type of charge. Even on murder there are big differences in possible non parole periods, this could cover the seriousness of the killing, and the subsequent acceptance/remorse/understanding side of things.
If you kill someone accidentally, through negligence, or with the intent of inflicting harm then it’s manslaughter, if you kill someone with intent to kill them then it’s murder. If you are provoked and retaliate it comes down to intent – and whether you keep going beyond reasonable reaction/defence or not.
I think a core aspect of this should be that no one should think they can deliberately try and kill, no matter what the situation.
July 23rd, 2009 at 8:34 am
Kapital
Fuck off. Plain and simple you twat.
July 23rd, 2009 at 8:35 am
To all others I apologise for my language some people just do not understand anything else.
July 23rd, 2009 at 8:36 am
Clayton Weatherston must be the most hated man in New Zealand currently.
But don’t throw the baby out with the bathwater. At the end of the day those accused of a serious crime must be allowed to give their side of the story – we don’t have to buy into it or approve of what they have to say. In fact in this case Weatherston’s attempt to justify his actions is what has led to a loathing for him that is almost universal.
But if we deny the defendant the right to defend him or herself in the way they choose on politically correct grounds we end up with kangaroo courts.
Thats my take and I am not going to join the mob screeching for an end to the provocation defense – rather I would suggest that everybody take a deep breath and think through what the consequences of this type of change might be.
July 23rd, 2009 at 8:38 am
Sophie’s paper is available as a pdf at:
http://www3.interscience.wiley.com/journal/118501077/home?CRETRY=1&SRETRY=0
July 23rd, 2009 at 8:51 am
These sorts of cases are often appealed with the aim of getting a retrial so a different strategy can be tried. Fortunately Appeal judges are wide awake to this sort of thing and are very cynical of claims such as the defence lawyer being ‘incompetent’.
July 23rd, 2009 at 8:53 am
I agree with Franks – Our judges are quite capable of ruling in each case. I am saddened by Sofie Elliott’s murder I cannot quite get my head around the “emotion” of “Scrap Provocation” at this time. I believe that the emotion should be allowed to settle down, and when the media have something else to headline, to seriously review. Sofie’s mother may well be right but I have already become immune to listening to her on the subject. As a grandparent I grieve for her loss however.
July 23rd, 2009 at 8:58 am
“I believe that the emotion should be allowed to settle down, and when the media have something else to headline, to seriously review.”
The New Zealand Law Commission and the Ministry of Justice have reviewed it and recommended on it years ago.
July 23rd, 2009 at 9:00 am
Paulus – while the media are drawing a close link between the removal of the defence and the Elliot case, talk of scrapping the defence has been floating around in legal circles for a long time. The Law Commission has done two papers on the defence, both of which have recomended the defence be scrapped. The most recent report was done in 2007. The Commission went to some lengths to look for alternatives to he defence but found that the best mechanism to deal with this type of factor was in sentencing.
I think it’s a shame that the media are making claims that the removal of the defence will be ‘Sophie’s Legacy’. It’s the legacy of so many over the years who have been the ‘victim’ of this defence. Unfortunately, the public, and parliament to a certain extent, only care about these matters when they are in the media and there is some political gain. Still, if the defence is removed, then some good would have come out of it I suppose.
[Edit] And by ‘it’ I mean the media coverage.
July 23rd, 2009 at 9:01 am
A PDF version is freely downloable from Prof. Lambert’s site:
Why Measure Inequality? A discussion of the
concept of equality
July 23rd, 2009 at 9:48 am
Reading Sophie Elliott’s paper, it strikes me that she is making a strong case for those who are unemployed, married or not, to receive the dole.
July 23rd, 2009 at 10:01 am
Stephen Franks is right. However, if it is ruled out as a defence, then mandatory life sentence for murder has to go too.
And it will make no difference to what gets presented at trial since the defence will still have to make the case in mitigation for sentencing.
The whole discussion around this has been typically ignorant, misinformed and half-witted. That is how NZ law gets made.
July 23rd, 2009 at 10:22 am
Peterwn: A claim of counsel incompetence is a very serious allegation to make and is not a common cause of appeal. When it is made, the previous trial counsel have to swear affadavits as to their conduct of the trial and, from time to time, may even have to give evidence in front of the Court of Appeal. So those sorts of claims are actually taken very seriously by the CA. Anyway, CA judges are supposed to be impartial and rule according to the law, and not be “wide awake to this sort of thing”.
If you abolish provocation as a defence but have it, as some have suggested, as mitigating circumstances in sentencing then you will still see trials like this happening. The reason for that is because to use it in mitigation (after a guilty plea to murder) you need to show there is a basis for the claim. That requires evidence and that evidence has to be called somehow. The Crown would no doubt oppose the submission so then the defence would have to dispute the Summary of Facts as the Crown presented them to the Court. That results in a Disputed Facts hearing, which is basically a trial after a guilty plea. So all of this would still have happened, notwithstanding the abolishing of the partial defence.
So those of you who say abolish provocation as a partial defence need to realise that if you do so you will need to make sure it is not able to be used in mitigation if you want to avoid this type of happening again.
I do note that in the UK the Labour Party wants to abolish it for men but keep it for women who kill their partner when in an abusive relationship. Perhaps that would find some acceptance here?
And a good defence lawyer will always try to get graphic photos ruled inadmissible. They are prejudicial and can only harm your defence simply with the gross factor. Autopsy photos are especially bad, although the Crown doesn’t usually go that far. I remember on one murder I juniored on a few years ago we asked for the photos to be ruled out and the judge ruled in our favour. Ended up with just one photo of a small body part instead of full photos if the deceased in situ. Mind you, that case didn’t actually have any mutilation or anything like that. But objecting to things like that are what you have to do in order to run a competent defence. If you didn’t and there was an appeal then the CA would criticise you for it, so they really get you coming and going.
July 23rd, 2009 at 10:22 am
“Stephen Franks is right. However, if it is ruled out as a defence, then mandatory life sentence for murder has to go too.”
…
“The whole discussion around this has been typically ignorant, misinformed and half-witted. That is how NZ law gets made.”
I can’t stop giggling at this. You see, the mandatory life sentence for murder has already gone. It went in 2002. Typically ignorant, misinformed and half-witted indeed!
July 23rd, 2009 at 10:30 am
Touche, Pj. The mandatory life sentence remains in Oz and UK but not here.
However the NZ Law Society still wants a new sentencing regime in place before the provocation defence is removed.
July 23rd, 2009 at 10:31 am
Actually, the trial I just wrote about re the photos was one where provocation was argued. In that case the deceased was a violent and abusive alcoholic who had recently tried to kill the accused and was killed while attacking some family members. The defence of self-defence obviously didn’t work as a manslaughter verdict was returned, which means that the second defence of provocation must have been successful.
To get to that we had to show that the deceased was a violent and abusive alcoholic. Fortunately the family was more than willing to admit that he was. So we did smear his reputation, which was not a good one as shown by the many pages of his criminal history.
Did we do wrong in doing so? I heard no calls after that case for the provocation defence to be abolished. Would you all, by removing the defence, have condemned our client to a life sentence despite the mitigating circumstances?
I say this simply to remind you all that a provocation defence is not always as you have seen it in the Weatherston case.
Edit: Correct, PJ, not mandatory, but still expected and anything less is exceptional
July 23rd, 2009 at 10:35 am
No amount of provocation can justify an attack. Self defense is good enough to capture cases where physical
danger to a person is involved. When there is no physical threat, there is always an avenue to resolve issues other than to attack and murder. Any-one who claims provocation as a defense has not thought it through.
My brother was beaten to death by two thugs. I would say that is provocation enough to go and rip them apart (trust me me and my other brother are more than capable), however it would be revenge. Why? Because of time? So how long before provocation becomes revenge? If I saw them doing it and I killed them minutes after they brutally murdered him, – provocation? What about 10 minutes after? I would still be distraught. In fact for about two months I was beside myself. I just could not believe what had happened. So would that still be provocation?
The whole provocation defense is based on a person losing the ability to think rationally at a given moment. The problem with that is that a psychopath committing serial killings also loses the ability to think rationally during the killing rage. I think Whetherston was just given the opportunity to indulge in his fantasies for a week longer.
He has no defense, we gave him one. We said that maybe there is a case where some-one might do something to us, that warrants us stabbing them a couple of hundred times and then mutilate their bodies. Using the provocation defense the thugs who killed my brother might even claim that they took offense at the fact that he looked at them funny or parked his car in the wrong place or maybe that he said something to them as he walked past them. They bashed him to death with a tire iron for his cell phone…. but maybe he provoked them. And then maybe they provoked me and my other brother, who then would provoke their families…..
July 23rd, 2009 at 10:42 am
From what I have seen of Clayton’s father I do not feel that sorry for the Weatherston family. I cannot quote him word for word but it sounds to me like he supported the defence that Ablett-Kerr ran. If it stood a chance of reducing the time his scumbag son spent in jail any stress to the Elliot family was just collateral damage. If Clayton’s father paid for Ablett-Kerr and allowed the provocation defence as well as quotes from Sophie’s diary I do not feel sorry for him.
July 23rd, 2009 at 10:44 am
Bok, if anyone killed my wife or children I would certainly consider them fair game.
And, frankly, the finer points of the law would be the last thing on my mind. So all that is simply a case of being wise after the event. Or perhaps stupid.
July 23rd, 2009 at 10:47 am
“If it stood a chance of reducing the time his scumbag son spent in jail any stress to the Elliot family was just collateral damage.”
I doubt that was the reasoning at all. Like everyone else I expect they were just struggling to understand how it happened and thought the more facts presented the better chance of doing so.
July 23rd, 2009 at 10:52 am
FE Smith
“And a good defence lawyer will always try to get graphic photos ruled inadmissible. They are prejudicial and can only harm your defence simply with the gross factor. Autopsy photos are especially bad, ”
The problem with this sort of statement is that it is the typical BS and self delusion that lawyers come up with to intellectualise reality. Autopsy photos are not half as bad as the real thing. You see a two dimensional image just does not reflect the true horror. As some-one who have seen many bodies caused by violence, (two years in a war and then again doing a documentary series on police and car crashes.) let me tell you something. I have never wanted to puke while looking at a photo, or even film footage of dead people… but I sure has hell done it when I saw them in real life.
And they are not prejudicial. They simply reflect the end result of a course of action some-one took. If you prove that some-one did the crime (here it was never contested) then there is nothing prudential about having a look at the end result of that crime. Trust me it beats being at the real thing about 200 to 1.
July 23rd, 2009 at 10:58 am
I think that might appeal to Key. It would get more women’s vote for National. National is good at knee jerk legislation. Does anyone remember the Bristol case where the man gassed himself and his three children? Just after that National passed the Domestic Violence Act which made it very hard for many good fathers to have access to their children. There appears to be three recent cases of mother’s committing suicide and taking a child or children with her. The police, politicians and the media have little to say about these cases.
The law and the application of the law is already very much bias against men.
July 23rd, 2009 at 11:04 am
Alan I probably would as well. But it does not change the fact that it is a non-sensical argument. There are people who believe that politicians are responsible for a death of a loved one because say cuts in health spending… provocation defense if they then kill the politician? (Maybe not all bad)
Or how about the cases taken against tobacco companies? The person who believes that the company executives are liable for the death of their mother or father may take it a step further than suing the company and maybe seek revenge in another way… all really hypothetical, but the problem is that it is such a crazy defense. Full of scope for really way out applications.
July 23rd, 2009 at 11:04 am
Bok, I have seen many autopsy photos and many photos of the dead in situ, and have no issue with them. Some of my colleagues, however, do have issues with them. The general public, the ones who make up the jury, do not get exposed to these sorts of photos as a matter of course so they do struggle with them. That is a fact, not “typical BS and self delusion that lawyers come up with to intellectualise reality”. Some jurors to get physically ill, or emotionally distressed, when graphic photographs of a deceased are shown in court.
You were obviously a soldier, so the scenes you were exposed to were of course far worse than any photographs. But the gentle public do not have your background, or even mine, which allows us to view the photographs without issue.
As a result, they are prejudicial, in a legal sense, because they do make the jury feel revulsion, anger etc etc toward the person who perpetrated the killing. That is what we mean when we use those words. The legal concept is that every piece of evidence presented in court against an accused is prejudicial. The general meaning as understood by the public is not the same one we use in court.
Edit: And, Bok, your view of provocation is simplistic and doesn’t take into account the requirements of the defences as set out in many judgments over the years. The defence is quite restricted, far more than you are alluding to.
July 23rd, 2009 at 11:14 am
My goodness Bok;
Under our system of justice defendants are entitled to a defense. Its far from perfect system and it does not always produce the results we might desire, it is however markedly superior to any other system that I am aware of.
What does surprise me is that Weatherston’s defense team allowed this tack to be taken in the first place and permitted him to take the stand in order to pursue it.
However what most people have probably forgotten or never knew in the first place is that Weatherston was first bought before the courts he had a different defense team. This team he replaced without informing them. This led to the ludicrous situation where two defense teams turned up to an early court hearing – one having been fired but as yet unaware of it and the other led by Judith Ablett-Kerr presumably assuming that all the formalities surrounding a change of defense team had occurred.
Anyway the court had to adjourn until who was actually representing Mr Weatherston was resolved. So what might this little drama have been about do you think?
July 23rd, 2009 at 11:22 am
Link in support of my previous comment
July 23rd, 2009 at 11:39 am
I think the Weatherston trial is the worst attempt at arguing provocation I have seen. The law is there for a reason and I think there is ignorance of the understanding of what manslaughter is under law. (a hint – the second and third syllables) There is even voluntary and involuntary manslaughter subcategories. Read the law here:
http://www.legislation.govt.nz/act/public/1961/0043/latest/results.aspx?search=sw_096be8ed803f6e27_manslaughter&p=1
In regards to the Weatherstone trial, I think there were two problems in his defence:
1. His presentation in the dock; and
2. Any explanation for the extent of the injuries (most of which seem to be post mortem).
The guy was a soft spoken, bed-wetting, mummy’s boy, anxiety-disordered wuss. I don’t understand what advice he received from his defence team to act the way he did in the dock. Is the bravado/narcissism a defence mechanism? Has his time on remand got to him being so long away from his mother? While it sounds like the jury hated him before the trial started (which raises questions in itself) he certainly could have adopted a demeanour of trying to be perceived as being the victim. That would be consistent with other trials where provocation has been successful. But he didn’t. He was a prick.
The evidence also suggests that the knife was used after the scissors were used. Who had the scissor’s first? I just don’t get this and the guy’s in prison for hopefully a long time for him to think about what he did because he blew it when he was asked to explain it.
July 23rd, 2009 at 11:58 am
The law on self defence should be amended from the present requirement for “fear of ‘imminent’ attack”, to the Canadian position of “fear of ‘inevitable’ attack”. This would aid battered women such as those (in a number of Australian cases) where husbands had inflicted beatings on their wives while drunk, fallen into a sleep after vowing to further beat their wife on waking, and been killed in their sleep by the fearful wife, sometimes in very remote locations where escape would be impossible.
In NZ, even though the attack would be inevitable, because it was not imminent, a battered spouse would in New Zealand be found guilty of murder.
Once that is done, the law on provocation could be amended to make it available only where there was also an evidential basis for self-defence. That way, where a disproportionate response to a genuine fear could still be manslaughter by provocation, and not subject to a life sentence. While the law since 2002 has allowed less than life for murder, caselaw seem to prevent that being used in any other case than suicide pacts between terminally ill elderly couples.
By way of example, without provocation, if Sophie’s mum went into the room and knocked Weatherston out with a baseball bat, that would be self-defence. However, once Weatherston was clearly incapacitated, if she hit him again on the head to intentionally kill him after what he had done to Sophie, that would be murder requiring (under present caselaw) a life sentence. If she could rely on provocation, it would certainly succeed and the judge could sentence her to anything they saw fit from a discharge without conviction through to a fine, community service, or jail for any period up to and including life, if the circumstances required.
Provocation must stay, albeit perhaps not in its present form.
July 23rd, 2009 at 12:01 pm
calling someone a twat as an insult says a lot about Mr Bok
Seems like he is a misogynist as well as pompous idiot
July 23rd, 2009 at 12:06 pm
ANDREI………What your link does not reveal is whether Ablett Kerr represented him on legal aid and where does King Q.C. fit into the picture.
Re provocation in my view the best solution would be to leave it as a defence, but to shift the burdon of proof from the prosecution to the accused when it is offered as a defence.. Judge POTTER laid heavy emphasis on instructing the jury that the Prosecution had to prove beyond reasonable doubt that there was no provocation. Provocation is within the mind of the provoked and the onus should be on them to prove it, not on the Prosecution to prove it wasn’t within his mind.
July 23rd, 2009 at 12:11 pm
Backster: “What your link does not reveal is whether Ablett Kerr represented him on legal aid and where does King Q.C. fit into the picture.”
My understanding is that Ablett-Kerr QC was privately retained by the family who mortgaged their house. King (not a QC) was privately retained because he is a great trial counsel, and particularly he is an expert in provocation. Interestingly (worryingly) King has taken three successful appeals in the last last three years against summing-ups by Justice Potter (the Weatherston trial judge) on the subject of provocation. It was King’s criticism of Justice Potter’s summing up that lead to Tony Dixon having a million dollar re-trial. It seems he knows the law on provocation a lot better than the judge, which is a worry. Hope there is no appeal.
July 23rd, 2009 at 12:19 pm
F E Smith
See:
http://jdo.justice.govt.nz/jdo/GetJudgment/?judgmentID=157691
This is the case I had in mind. While there was no direct claim of counsel incompretence, the appeal counsel tried to slip this one in through the back door. What is amusing in this case is the accused denied lacing the victim’s drinks with stupefying drugs but the appeal defence counsel claimed that the victim’s evidence was unreliable as she was stupified by the drugs at the time of the alleged violations. The judges basically said that the defendant could not have his cake and eat it.
Appeals such as this have some factual overtones with respect to lower court procedures which is why I commented on the ‘smartness’ of the judges. Keane J fior example was once a District Judge with a jury trial warrant so he would be well versed in the tricks of the trade.
As far as the provocation defence is concerned, it came about because 19th century or earlier considered it unreasonable that a gentleman should swing from the gallows because he was provoked (presumably a one way ticket to Australia was considered more appropriate). So it could be argued that the defence should have disappeared along with the death penalty.
The present Sentencing Act can handle provocation since a judge does not need to impose life imprisonment for murder, but I accept that the ‘bar’ may be too high. The Sentencing Act probably needs to be tweaked slightly, but so as not to open the flood gates. The Parole Board can also take provocation into account. This would effectively make provocation a matter of law than fact which is probably not a bad thing.
July 23rd, 2009 at 1:04 pm
I actually think that the answer is right there in peterwn’s post
The defense came about in the 19th century. Remember how people also used to say about some rape cases (and a number in NZ and Australia was won on ) She was asking for it. In fact provocation was a big defense in rape cases and we got rid of that type of thinking for a good reason.
July 23rd, 2009 at 1:26 pm
Kapital, I think Bok has an excellent defence based on provocation, firstly based on his family’s tragedy and secondly on your patronising comment.
July 23rd, 2009 at 1:51 pm
Ernesto…Thanks for a very enlightening reply.
July 23rd, 2009 at 1:53 pm
Bok – The defence of provocation as discussed here applies only to murder and is a partial defence only as it ‘downgrades’ murder to manslaughter (compared with ‘self defence’ which lets you off the hook completely).
Rape cases are different – the defence tries to argue that the victim dressed in a ‘provocative’ way to try and get a lesser sentence.
July 23rd, 2009 at 2:20 pm
Well done by Lesley Elliot. I admire that
July 23rd, 2009 at 2:21 pm
Kapital,
Calling someone an idiot is also an insult. Or is it ok when you do it? Retard. Note: I have no problem insulting people when appropriate.
Interesting that she continually gets talked about as a future governor of the Reserve Bank. Not to say she wouldn’t but she did apply to the Reserve Bank as well as Treasury and didn’t get offered a position. Still, it is obvious that she would have been a success until that piece of scum came along.
July 23rd, 2009 at 3:02 pm
Peterwn: “As far as the provocation defence is concerned, it came about because 19th century or earlier considered it unreasonable that a gentleman should swing from the gallows because he was provoked (presumably a one way ticket to Australia was considered more appropriate). So it could be argued that the defence should have disappeared along with the death penalty.”
Interesting. Not what I was taught in law school. As I understand it, you can even go back as far as Ancient Greece for some of the reasoning behind the rule.
References, please?
July 23rd, 2009 at 3:29 pm
F E Smith – with the greatest of respect, it is not usual on blogs to cite sources to the same standard as a peer reviewed research paper. I do link to sources where I can do so conveniently. A killing of passion would potentially have had the same consequences in Ancient Greece as in the 18-19 century ie a death sentence, so it is probably not surprising that with respect to full male citizens those provoked into committing such a crime of passion may have been spared execuiton. The law also would have differed between the various city states.
IMO the provocation defence is as outmoded as various Islamic legal practices such as stoning or amputations.
July 23rd, 2009 at 3:46 pm
FES, Peter – most of the literature suggests the defence is known to the common law from about the late 16C (See eg Simester and Brookbanks, or otherwise article by Helen Power [2006] Crim LR 871.)
Peterwn – our 1893 Criminal Code outlines the defence in terms of killing ‘in the heat of passion’ which somewhat confirms your views. Anyway, I don’t think it is ever right to award killing in these cases anyway.
July 23rd, 2009 at 3:58 pm
Peterwn: See what N1TCO says about it. I was just wondering about your source because it reads like some of the urban legends that grow up around some aspects of criminal law. I certainly didn’t expect references as per a peer reviewed research paper and didn’t ask for them! But you seem to forget that a ‘gentleman’ could be hung if he stole even 6 shillings a couple of hundred years ago, so the defence of provocation wasn’t really a go-er for that sort of thing at all.
What you appeared to be suggesting was that provocation as a partial defence was created to protect the upper-middle classes and above, making it very much a class related issue. It wasn’t. Whether right or wrong it was, as N1TCO says, about killing in the heat of passion, when the accused had been subjected to provocation that was unbearable. Typically for the common law system, we then started to water it down by tightening up the criteria in to what is today a bit of a muddle.