Weatherston gets 18 years non parole period
September 15th, 2009 at 12:40 pm by David FarrarClayton Weatherston has been given a life sentence, with a non-parole period of 18 years. The Crown asked for 19 and the defence 12, so that seems reasonable, even though I would of course want even longer.
The comments from the sentencing were heart-breaking:
Sophie Elliott’s father told the court today his life stopped on the day his daughter was brutally stabbed to death.
Gil Elliott said he was still struggling to come to terms with her murder.
“Everything I had existed for stopped that day,” he said of the day of her murder.
“Can you imagine what it feels like? She was so badly mutilated they were advising us not to see her,” he said of organising his daughter’s funeral.
He spoke directly to Weatherston several times, closing his statement by looking at Weatherston and saying: “Clayton you are the epitome of evil”.
He really is.
Lesley Elliott said her family’s life had fallen apart and would never be the same. She talked of the day of her daughter’s death and seeing her daughter being stabbed even after she was dead.
“My beautiful daughter had been butchered. I saw her bloodied body lying there that only minutes before had been warm and given me a hug.”
Mrs Elliott was then locked out by Weatherston, who continued stabbing her daughter’s lifeless body.
“I will never forget the terror. …
Mrs Elliott said she cried herself to sleep every night, took medication to keep her functioning on a daily basis, had taken all her leave and reduced her hours of work.
“Clayton Weatherston this is what you have done to us… I hope her screams of agony ring in your ears as they do in mine.
I suspect they don’t ring at all for him. I hope that one day they do.
This will hopefully be the last post I will make on Weathertson and Elliott for sometime – maybe for 19 years! With the sentencing it is all over for those of us who just followed the news in the media, and we can move on. Sadly those who were close to Sophie will have to carry this with them for the rest of their lives, as the sentencing makes clear.
I’ve felt unusually captivated by this case, since it was first reported, for several reasons.
The first is that Sophie had what appeared to be have a wonderful life ahead of her. I don’t mean to at all suggest that any murder victims are more or less valuable, but on a human level you identify with someone who was academically brilliant, and was set to have an outstanding career. I read somewhere her ambition was to be the first female Reserve Bank Governor, and thought that was a superb ambition for a 22 year old to have. The remarks by her lecturers accompanying her paper for the Oxford Journal of Economics are a wonderful tribute to her ability.
The second reason was when it was revealed that her killer was Weatherston, an economic tutor. It is human nature that you are not very surprised when a gang member kills someone, or the killer is someone who has been in trouble all their life. An university staff member is not at all your typical killer, especially when they kill in such a way that they know they will be charged and punished for it. Weatherston also throw away what had been a pretty good life for him up until then.
Weatherston had also previously worked for Treasury, and so some of my friends knew him, and I heard about their reactions to the news (which included deleting him from their friends on Faacebook).
A third factor was the fact the killing happened in her home, with family members present. It was especially chilling that someone would be so pre-meditated as to sneak a knife in, to kill someone. Normally your home is your safest place.
The fourth aspect that made me feel unusually “close” to what happened, was the comments on the blog. A former girlfriend of Weatherston’s commented. A former boyfriend of Sophie’s also commented often, as did her brother once. Several others who knew either Sophie or Weatherson also commented, and you gained a much more complete picture of them, than what was in the media at the time.
The most shocking part for me, came when a new commenter tried to post some comments on the blog a few weeks after the murder. Luckily for everyone, a first time comment gets held in moderation, so only I saw it. And when I saw it, I was actually physiclly sick, as in threw up in the toilet.
For the first time, I’m going to blog what those comments were, as part of this final note. I want to stress that the person who made the comments has since apologised and I understand is incredibly remorseful for them. Don’t think you need to comment on how misguided or vile they were as that is obvious, and he is very repentent. I am only detailing them here as part of why this killing has affected me so much. The comments, (I have inserted appropriate ***s) were:
Sophie Elliot was a b***h and deserved to get murdered, she was a s**t and a w***e treated men like shit and this is what drove Clay to stab her.
Sophie Elliot was stabbed over 200 in her v****a, both her b******s were cut off and her ears, Dr. Clayton Weatherston has similarities to Dr. Hanibal Lecter. When the Police arrived he was still stabbing her lifeless corpse
Apart from vomiting up, as I read them, I was shaken to read the awful details of her stabbing (this was some months before that became public in the depositions hearing), and appalled by the blame the victim attitude. I actually wondered if Weatherston himself had somehow written them, and I passed them onto the Dunedin police.
I thought long and hard about whether to include these in my post, in case it upset friends or family of Sophie who might read this. But I concluded that it is all pretty much the same as what was said or implied in the trial by Weatherston’s defence. There is nothing new there – except in the timing of when they were made.
I actually found it quite hard, coping with having read the comments. That sounds silly, when you compare that to what people who actually knew Sophie, went through but I couldn’t get the brutal details of her death out of my mind. It isn’t quite so bad when it is public knowledge, as you can talk to people about it as a form of therapy, but I couldn’t subject any of my friends to what was in that comment. At worst I could say to them I had an unpleasant comment that was explicit about the death. I also struggled with how someone could hate someone so much, as to indicate she deserved what she got. Again I want to stress that the individual who did this is very remorseful for what he wrote.
So it was almost a relief for me, when the depositions hearing got some of this information out in the public domain.
After depositions we had the trial of course, and enough words have been written about that.I’ve never known a trial to not just grip the nation, but provoke such outrage. I suspect my sense of “closeness” to this case is one shared by many New Zealanders.
Incidentally in future, the family of similar victims, will be probably spared both a depositions hearing (which was so unnecessary in a case like this), and having to endure having the victim put on trial under the guise of provocation.
I don’t quite know why, but I still think about the killing several times a week. I just can’t quite get out of my sub-consciousness thoughts about what a terrible way to die, how awful it would have been for Lesley, and most of all how sad I am a wonderful life was cut short – even though it is of someone I never met. Thinking about it, if Sophie had lived to move to Wellington and work for Treasury, I guess I probably would have met her at some stage.
So hopefully with this sentencing, the publicity is all over, and it is time to move on. However my thoughts are with those who don’t have that luxury and will have to cope with what Weatherston did for the rest of their lives. They, like Weatherston, also have a life sentence – and one sadly with no parole.
Related posts:
- Clayton Weatherston
- Weatherston should never be released
- More on Weatherston case
- Peter Gibbons worked with Weatherston
September 15th, 2009 at 12:44 pm
fingers crossed he dies in prison.
Vote:September 15th, 2009 at 12:47 pm
Eighteen years is not enough, but sentencing precedents suggest that it was as much as he was ever going to get. He’ll almost certainly go to an at-risk unit where he will keep the company of Witness Protection inmates, convicted policemen and paedophiles.
Vote:September 15th, 2009 at 12:49 pm
I was guessing 19 so was close. Seems reasonable in context of other cases and, of course, I doubt he will be a top drawer candidate for parole, even in 18 years time. Prick.
FES will probably know better but my feeling is that the sentence is unappealable. No record sentence for a murder of its type (if there is such a thing) but at the higher end of previous sentences for single murders. No doubt he will instruct his counsel to have a crack but as long as the Court of Appeal apply the ‘manifestly excessive’ test and don’t try and act as a de factor sentencing council (and tinker) then I think it is all done.
I can not imagine how the Elliots will get on but one hopes, perhaps tritely, that there is some closure in this sentence.
Certainly they have conducted themselves with a degree of dignity that no one could expect from a family that has suffered such trauma. They are a credit to Sophie’s memory (for what little that is worth).
Vote:September 15th, 2009 at 12:51 pm
He really should of gotten 1 year for every stab wound he inflicted on her, but I know realistically that wouldn’t happen. Still 18 years somehow doesn’t seem enough.
That comment which you had previously blocked is truly horrible, and no wonder you threw up, I only hope that they have been charged for it in some way. Or at the very least regret it now. The only valid point in that post is that Weatherston is like Hanibal lecter, and should be classed as not fit for release ever
Vote:September 15th, 2009 at 12:58 pm
I wish the politicians would leave the bloody provocation law alone and instead focus on the important part, sentencing.
As Sophie’s Mum said ,”I want to see a life sentence mean the rest of a person’s natural life – exactly what they took from someone else.”
Vote:September 15th, 2009 at 1:01 pm
GPT1: “My feeling is that the sentence is unappealable.”
Yup. 18 years is in line with other recent cases of 17 and 19 years where murderers set their partners on fire. I guess he was hoping to get something a little more like Nai Yin Xue’s 12 years, however Xue’s murder involved comparatively little brutality.
The only point on appeal is whether the crime involved a high level of brutality, cruelty or callousness requiring a sentence of at least 17 years as provided for by s 104(e) of the Sentencing Act. Seems a bit of a no brainer to me. Any further quibble over whether it should be 17 years or 18 years is not sufficient to warrant the Court considering whether it is ‘manifestly excessive’. No chance for an appeal.
Vote:September 15th, 2009 at 1:05 pm
I know exactly how you felt, DPF. I was also privy to the details early on (straight from the Elliott family in my case) and, at the time, it affected me more than anything else ever had.
There were others that had obviously known Clayton and were suggesting that he was being framed for it, and that Lesley had “made it up”, which made me more angry than I care to admit. In retrospect, I guess they just couldn’t comprehend that someone would do something like this either, especially someone they knew.
18 years seems like nothing, however I suspect he won’t last 18 months.
Vote:September 15th, 2009 at 1:06 pm
Sounds fair enough to me. Of course nothing is fair for the Elliots but a year or two wouldn’t make any difference to that.
Eighteen may not sound much, but it’s a long time to sit and sulk. And it is minimum. When I think of what has happened in my life since 1991, even eighteen months is a long time to go nowhere.
Vote:September 15th, 2009 at 1:11 pm
Clayton Weatherston has apologised for killing Sophie Elliott through his lawyer Judith Ablett-Kerr. Mrs Ablett-Kerr said Weatherston had told her he understood people did not see he was remorseful. He had heard much of what people had said about him.
“He said to me ‘They don’t see me at 2 in the morning when I think about the horrendous thing that occurred’.
“He tells me he is sorry, that he saw no point in saying it himself because it would appear contrived.”
http://www.odt.co.nz/news/dunedin/74089/weatherston-apologises
Vote:September 15th, 2009 at 1:15 pm
“Mrs Ablett-Kerr said Weatherston had told her he understood people did not see he was remorseful.”
A narcissist only feels sorry for himself.
Vote:September 15th, 2009 at 1:18 pm
This story makes me feel sad and sick. I hate to say it as it sounds cliche and tends to always come up, but I honestly cannot see any argument against the death penalty in this case. For someone so self obsessed, death row might actually be a punishment which will be absorbed and the final penalty will actually be justice – as he will rightfully be forgotton as the worthless aberation that he is which for such a narcissist surely is the worst punishment.
Sure this is not a justice that fixes anything or brings someone back – that is not of course possible but a justice that at least feels right as I cant say any of this or the fact in 18 years my ears will likely be forced to hear this scumbags name again sits very well with me at all.
Vote:September 15th, 2009 at 1:24 pm
Paul Matthews: “18 years seems like nothing”
Even if Weatherston avails himself of every opportunity to present himself well for Parole, the Board (based on current attitudes) would not give him any real consideration for release until he has served something closer to 25 years. If he stays his narcissistic self (as narcissists often do) he can expect to wait much longer.
Vote:September 15th, 2009 at 1:24 pm
It is human nature that you are not very surprised when a gang member kills someone, or the killer is someone who has been in trouble all their life. An university staff member is not at all your typical killer, …
This is not to threadjack as such, but never forget the banality of most evil people. It doesn’t take a gang affiliation to be a killer, you just need to be an ordinary, everyday, person.
Vote:September 15th, 2009 at 1:38 pm
There needs to be changes to the Sentencing Act instead of getting rid of the defence of provocation. He should have got another ten years for his merit less use of this defence almost certainly partly aimed at casing more distress to the family.
Vote:September 15th, 2009 at 1:38 pm
Creatures like Weatherston make a good case for us to outsource corrections to China. A win-win situation as Helen used to say. Save us a packet and more body parts for the Chinese to harvest.
Vote:September 15th, 2009 at 1:42 pm
As I recall, the killer Dally has been denied parole repeatedly and may well never be released. If Weatherston actually survives the 18 years – and his chances cannot be bright – it would not be surprising if he were to stay in prison for at least 25-30 years.
Vote:September 15th, 2009 at 1:49 pm
I don’t even want to try to imagine what is must have been like for Sophie’s family to sit through this evidence and the defence’s vilification of her. Along with the Bain trial we now see much more of the proceedings of these infamous cases on TV and I can’t help but think that this might only encourage narcissists like weatherston to “perform” for the cameras. For the families of victims they have the ordeal of the trial and the ordeal of the media as well. Should we put stricter limits on what gets shown on television?
Vote:September 15th, 2009 at 1:57 pm
“This will hopefully be the last post I will make on Weathertson and Elliott for sometime – maybe for 19 years! “
Not too sure about that.
Murder happened in Dunedin, particularly nasty murder, murderer correctly convicted and locked away.
Joe has got bugger all to do right now.
Vote:September 15th, 2009 at 2:01 pm
Chuck Bird:”There needs to be changes to the Sentencing Act instead of getting rid of the defence of provocation.”
I agree entirely.
Vote:September 15th, 2009 at 2:10 pm
I’d have thought Clayton W would tick all the boxes for someone not surviving anything remotely like 18 years in prison.
Vote:September 15th, 2009 at 2:18 pm
I’d have thought Clayton W would tick all the boxes for someone not surviving anything remotely like 18 years in prison.
Raymond Ratimawas sentenced to ten years in August 1992 with a ten year non parole period for murdering seven members of his family plus an unborn child. His next parole hearing is in November 2011
Vote:September 15th, 2009 at 2:43 pm
I have great admiration for Mrs Elliot. She is an incredible classy lady. So calm and reasonable in such excruciating circumstances.
I certainly couldn’t be like her.
Vote:September 15th, 2009 at 2:46 pm
I hear that the victim impact reports were “heavily censored”…
Who the hell in our fucked up legal system has the right to tell the VICTIMS of crime what they can and cannot say in court?
Vote:September 15th, 2009 at 2:52 pm
Does any-one believe this is a person that can be rehabilitated?
Listen to this:(His words)
“He said to me ‘They don’t see me at 2 in the morning when I think about the horrendous thing that occurred’.
he is still not taking responsibility. he is not sorry because he does not think he did something wrong. In his mind he reacted to something that some-one else did.
May he stay alive for 17 years and 363 days.
Vote:September 15th, 2009 at 2:54 pm
This is an excellent post, David. One of your finest moments. Well done!
Vote:September 15th, 2009 at 2:57 pm
I also have some sympathy for Weatherston’s family. God knows how many hours of self-analysis (self-interrogation might be a closer description) they will have done trying to work out where they went wrong with his upbringing and wondering how they could have done it differently. They will also forever be marked with his guilt and will carry a share publicly for a long time.
Vote:September 15th, 2009 at 3:27 pm
Bok (2.52) I thought exactly the same thing when I read it. “…the horrendous thing that occurred.” implies some sort of detachment from it all, from having caused the “horrendous thing”. It certainly doesn’t imply any remorse.
Vote:September 15th, 2009 at 3:31 pm
David I do too. But again the blame shifts away from where it needs to be. And they have to face up to the fact they did nothing. He did. But ypu are right
Vote:September 15th, 2009 at 3:53 pm
Too short, I feel too sad to comment further, except don’t believe anything his lawyer says he said by way of apology. There is no reason why he couldn’t make the his apology from the dock if it was how he genuinely felt.
Vote:September 15th, 2009 at 3:56 pm
Hopefully the little shit will finish up as someones bitch for a while before the inevitable sharpened toothbrush slips gently through his ribcage.
Vote:Some days your the windshield, some days your the bug.
September 15th, 2009 at 4:09 pm
“…and I heard about their reactions to the news (which included deleting him from their friends on Faacebook).”
Ouch! That would have hurt.
Vote:September 15th, 2009 at 4:21 pm
GPT might be surprised at this, but I would have set his tarriff at 20-22 years, so I am surprised that he got 18 years. What surprised me even more is that the Crown only went for 19 years. Ernesto’s comment on recent sentences is correct, but I can’t help think that the mutilation should have pushed it at least to 20 years.
But I think that GPT’s comment re the sentence not being appealable is more than likely correct. If he were my client I would be warning him about the CA potentially raising the sentence, if only slightly. I can see that Weatherston might want to appeal, given his instructions to counsel so far, but I reckon they would do as much as they could to persuade him not to. 18 years is just the sort of “in between” sentence that makes it hard to show a real need for a reduction. Certainly the Crown could not appeal it, given their starting point.
DPF, when you say “Incidentally in future, the family of similar victims, will be probably spared both a depositions hearing ” I must disagree with you. I am aware that applications are currently being made in some parts of the country for oral committal hearing, mostly related to murders. I suspect that the defendants might well get them, given the seriousness of the charges. Certainly a refusal would be open to a judicial review before we have any definitive case law on it.
Vote:September 15th, 2009 at 4:55 pm
Totally agree with bok about the apology. It is as if he sees himself as a person caught up in an awful accident rather than as the author of one of the most sickening crimes I have heard of. The ” Claytons apology ” springs to mind for those of you old enough to remember an eighties advertising campaign.
Vote:I think the judges sentencing, which the ODT will cover in depth tomorrow will be interesting reading and I suspect might force you into 1 more blog on Clayton Weatherston David. Hopefully she will send a message to the parole board that will convene in 18 years. Maybe somebody reading this blog today will serve on that parole board
September 15th, 2009 at 5:10 pm
Ernesto’s comment regarding the parole board reminds me they can play a significant role in downstream sentencing effects.
David Tamihere was given 10 years non-parole for the Swedish tourist murders and despite being a model prisoner he’s still in there 6 parole hearings and 19 years later, primarily for the fact he has shown no remorse and taken no responsibility for his crime.
Weatherstone’s personality indicates he will display similar traits and should expect quite a few more years after his minimum is up.
Vote:September 15th, 2009 at 5:15 pm
From the — and I use this term loosely — “apology”:
“The horrendous thing that occurred”. Even now, he refuses to take responsibility for it. It’s a separate, distant thing, to be spoken about in a detached passive voice. The horrendous thing that occurred, not “the horrendous thing that I did”.
Vote:September 15th, 2009 at 5:40 pm
My psychology is from the armchair.
But the narcissism, the unjustified sense of entitlement, dislocation from reality, a gift for annoying those around him, and the lack of ownership will make prison more hell than normal for him.
I’d have thought he was a classic candidate for suicide. And I don’t the guards will do a lot to stop that.
Vote:September 15th, 2009 at 5:47 pm
Blasted Courts Dept. They should have the judge’s sentencing notes up immediately for a case of such public importance. There is the database of all higher court judgments, but there is a 3 day delay on that one.
They should remember that the taxpayer subsidises the operation of the courts in a big way (including almost 100% for criminal trials) and the long suffering taxpayers should get their moneys worth.
Vote:September 15th, 2009 at 6:34 pm
Peterwn: “They should have the judge’s sentencing notes up immediately for a case of such public importance.”
Unfortunately, this sort of case is just another run of the mill murder. As Sophie’s mother pointed out, since Sophie’s murder a further twenty women have died at their partners hands. A scan through recent sentencing judgments shows that this level of violence and cruelty is basically common place. The only thing particularly unusual is the amount of media coverage and public sympathy that doesn’t accompany most murders of women by violent partners.
Vote:September 15th, 2009 at 6:42 pm
The sentence is not long enough but that is where we are at. He will probably not make it through. To the family of Sophie Elliot, I hope you can move on as best as possible under these terrible circumstances.
FE Smith – you may remember my thoughts on Ablett-Kerr and King using this defence. (I don’t think the defence of provocation should be removed, just not used in this case).
I was subjected to much detailed legal description of how it was their duty to defend him in that manner, they would have been under instruction blah blah blah. This is not the forum to go into this in detail, it will wait for another day, but every other professional or tradesperson I know of is not allowed to use their clients instruction as an excuse for ineptitude or unprofessional behaviour. Even a written letter of instruction from the client is not enough to absolve us from blame. In law we are held up to be the expert in our field and therefore should not act against our own judgement. You are probably aware of this. Why are defence lawyers exempt from this? I am not being rude, I just don’t understand it.
Vote:September 15th, 2009 at 7:02 pm
Kaya, Ablett-Kerr QC and King were neither unprofessional nor inept in their conduct of the case. In fact, in the face of what they had to deal with, I think they did a fine job. In law we are to follow our client’s instructions and are in fact not to substitute our own judgment whenever we think they have it wrong. All litigators are a mouthpiece for their clients and nothing more. Their expertise is to be used on behalf of their client, not on behalf of their opinion of the case. Our right to appear in court is only in our role as an advocate. So, in my view, neither defence counsel are to blame for any part of the trial.
And don’t forget that for the defence of provocation to be put before the jury for consideration the trial judge must make a finding that there is sufficient evidence of provocation before the court. So this was a defence that the trial judge herself considered had an evidential basis. Whether or not you, me or anyone else disagrees, the trial judge, and especially a High Court judge, is in the best position to make that determination.
But why do you not think he will make it through the sentence?
Vote:September 15th, 2009 at 7:16 pm
FE,
I suspect kaya thinks (hopes) Weatherston won’t make it through because she/he views prison violence as a de facto death sentence. In other words, he/she thinks (hopes) that he’ll get shanked (or will suicide under the conditions of jail).
Of course, the same viewpoint holds that putting more people in jail lessens the crime rate, because the perpetrators of crime aren’t on the streets … and anything that gets done to a prisoner in prison doesn’t count.
Vote:September 15th, 2009 at 7:25 pm
David
I don’t understand our justice system
today it was reported in Dompost that a guy who tried to run over a boy in Tokoroa is being charged with attempted Murder. But another boy who attacked someone with a samurai sword causing defensive wounds of serious bodily harm gets a home detention and Maori counseling, when it could have been murder if not for the defensive wounds.
Now a man who stabbed someone 200 odd times in defiling the body only gets 18 years definate jail time.
It beats me, a sword is a sword not a nose picker.
Vote:September 15th, 2009 at 7:36 pm
having just read all your comments, I think it is wrong for us to expect or hope inmates will execute him.
Vote:The people through the state should be able to do it.
This is a clear case of murder with forethought and He did it clearly.
There are no extenuating circumstances.
September 15th, 2009 at 7:55 pm
I do not accept a lawyer especially one as experienced and competent as Miss Ablett_Kerr are mere mouth pieces of their client. To say you are merely following your clients instructions is a cop-out. In this case I am prepared to concede that Weatherstone was driving the case with disasterous consequences. But what a waste of money paying a QC Like Judith Ablett-Kerr to be a mere puppet in the conduct of a case.
Vote:September 15th, 2009 at 8:30 pm
I am happy with 18 years. that gives him hope that he will get out again.
But will the Justice system be wise enough to dash that hope again … and again …. and again …. and again ….. and again – just like Tamahere.
The only problem with this is that the Elliots will have to go to the parole hearings.
The thoughts and prayers of a nation are with them.
Vote:September 15th, 2009 at 8:36 pm
tvb:
I rfeally don’t understand the criticism of Ablett-Kerr QC in acting for Weatherston. I suspect you would not be impressed at all if you hired a lawyer and they ignored your instructions and did what they wanted instead in the matter. In fact, I reckon you would complain about that sort of behaviour, yet that is exactly what you are advocating defence counsel do: to override their clients instructions because some of the public think those instructions are abhorrent.
This is from our governing rules:
4. A lawyer as a professional person must be available to the public and must not, without good cause, refuse to accept instructions from any client or prospective client for services within the reserved areas of work that are within the lawyer’s fields of practice.
Duties of defence lawyer
13.13 A defence lawyer must protect his or her client so far as is possible from being convicted (except upon admissible evidence sufficient to support a conviction for the offence with which the client is charged) and in doing so must— (a) put the prosecution to proof in obtaining a conviction regardless of any personal belief or opinion of the lawyer as to his or her client’s guilt or innocence; and (b) put before the court any proper defence in accordance with his or her client’s instructions— but must not mislead the court in any way.
In fact, have a look at the rule relating to the reverse of what Ablett-Kerr QC is accused of doing, i.e. if you wanted to plead guilty but the lawyer thinks you are innocent or have a defence (something that happens a lot. The last time it happened to me was this morning):
13.13.3 Where a defence lawyer is told by his or her client that he or she did not commit the offence, or where a defence lawyer believes that on the facts there should be an acquittal, but for particular reasons the client wishes to plead guilty, the defence lawyer may continue to represent the client, but only after warning the client of the consequences and advising the client that the lawyer can act after the entry of the plea only on the basis that the offence has been admitted, and put forward factors in mitigation.
So do you think that where a person wants to plead guilty even if they are innocent or have a defence then that is ok but if they want to plead not guilty but that learned body called public opinion thinks you don’t have a defence, even though a High Court judge says there is sufficient evidence in support of it that a jury can consider it, then the lawyer should disregard the client and instead do whatever they want?
Now put yourself in the position of an innocent person accused of a crime, and your lawyer says “tvb, I know you say you didn’t do it and you may well have a defence, but I am not going to run things that way. I think you should plead guilty or not present your defence and that is what I am going to do for you.” You would not be impressed, I am sure.
Of course we are mouthpieces. That is what the rules and the law says we are. From the newest new grad to the most senior QC, we are all in that position.
Vote:September 15th, 2009 at 8:41 pm
FE, I havent sat legal ethics yet, but was wanting to know what happens when you know a client is guilty, for instance when they have told you they are, but want to plead not guilty and lie in court? So the opposite of your above example.
What happens in this case? Seeing as your main responsibilty is to the court
Vote:September 15th, 2009 at 8:58 pm
Nickb,
easy, see rule 13.13.2:
If at any time before or during a defended trial a client makes a clear confession of guilt to his or her defence lawyer, the lawyer may continue to act only if the plea is changed to guilty or the lawyer—
(a) does not put forward a case inconsistent with the confession; and
(b) continues to put the prosecution to proof and, if appropriate, asserts that the prosecution evidence is inadequate to justify a verdict of guilty; and
(c) does not raise any matter that suggests the client has an affirmative defence such as an alibi, but may proceed with a defence based on a special case such as insanity, if such a course appears in the lawyer’s professional opinion to be available.
This is based on the premise that even a guilty person is entitled to defend a charge and be proved to be guilty on admissible evidence. We cannot allow them to lie in court so if in that case we really would do our best to persuade them not to give evidence. If they decide to give evidence then we can lead it (as the client can claim privilege in not incriminating themselves) however we are able, if the client does start to lie, to tell the judge that we are no longer able to act in the case and withdraw. We are not able, however, to say why!
tvb and kaya, further to my last post:
13.13.1 When taking instructions from a client, including instructions on a plea and whether or not to give evidence, a defence lawyer must ensure that his or her client is fully informed on all relevant implications of his or her decision and the defence lawyer must then act in accordance with the client’s instructions.
Vote:September 15th, 2009 at 9:38 pm
FE Smith –
I appreciate and understand your comments. I go back to my earlier point, a tradespeson is legally NOT allowed to act in accordance with a client’s written instructions if we believe those instructions are detrimental to the job at hand.
I am not saying you are wrong, I just find it strange that your profession would not be under the same rules. ie you have to run a defence you believe to be a poor one. The defence lawyer is the legal expert and should know what is best for the client irrespective of what they think. It is only my point of view, not something I am arguing with you over.
AG – when you develop clairvoyant powers please feel free to comment on how I “think”. After reading my mind you say:
“Of course, the same viewpoint holds that putting more people in jail lessens the crime rate, because the perpetrators of crime aren’t on the streets … and anything that gets done to a prisoner in prison doesn’t count.”
Your arrogance and presumption in knowing my “viewpoints” is astonishing. You know nothing of my viewpoints. I would wager I have met more murderers (both “normal” and psychotic) than you ever have or ever will.
My comment on Weatherston not getting through his sentence was based on these meetings, not some primeval desire to see him executed or hanging from his shoelaces. Mind you, if either of those events occurred my response would be the same as it was when I heard of Antonie Dixon’s death, total disinterest apart from a slight relief that my tax bill might be reduced a fraction.
I believe Weatherston will not get through because someone serving a long sentence will see it as kudos or mana if they can kill him, though he will almost certainly be in protective custody so that may be dificult. He may kill himself because as a narcissist he thrives on attention and people’s admiration of him. I don’t think he will get much of that in jail, the loneliness may get to him. A shallow grave and a bullet also has merit.
Vote:September 15th, 2009 at 9:41 pm
FE Smith
Firstly, I appreciate and enjoy almost all of your contributions to this blog, the place is better for your often highly educational pieces, however, you sir, do your self no justice by constantly defending a system that is failing us.
Obviously you understand how the game is played (and it IS a game that you chaps play with our lives and our belief’s/values) and obviously you understand the in’s and outs, however, a lot of us do not share the passion or respect that you so obviously have for your profession.
To me it often appears that the victim is nothing more than a distraction, the victim’s best interest (even in death) is overlooked or cast aside in pursuit of victory for yourself or for the “rule of law”.
Your defence of Ablet Kerr is a classic example, to many of us she is a person who is beneath contempt, to many of us the sight of her standing in court today telling us how “sorry” Weatherston feels is enough to make us want to scream, we are not part of your game, we are not part of the “noble calling” that is the law, we are simply the poor bastards who have to live with the result of crimes and the results of people like Ablet Kerr who often succeed in releasing scum back onto our streets.
What so many of us want F E is justice, romantic notions of the rule of law trumpeting all else do not wash with us, we want to see scum put away for a very long time and we want to feel bloody well safe in our own homes and on our own streets.
I know that the law is not perfect, I have been hearing that for as long as I have been alive, I have also not seen to many of your lot trying to do something about fixing those imperfections, while I have no doubt that many in your profession are good and decent people I am equally of no doubt that many are only slightly better than the people they defend.
I know that many of you are simply doing a “job”, that is fair, all of us have to earn a living but please, your constant defence of a system and profession that so many of us see as vile and only benefiting lawyers and criminal scum is wearing a bit thin, to me there is very little noble or good about our legal system.
If you really want our respect then start working toward making our legal system more about the victims and more about justice, do not hide behind a set of rules and traditions that many of us do not understand or care about, do not use the excuse that you can only work with the laws set down by parliament, start making some bloody noise about those of us on the receiving end of crime, start making some noise about changing our system to one that is truly about justice, justice for the likes of Sophie Elliot and justice for the next poor bastard who has to face the crushing reality that a person he loves has been murdered.
But above all FE, stop trying to defend the indefensible, on many occasions our legal system lets us down (Bain retrial being a classic example) a vast number of us have the same feeling toward many in your profession, why not use some of your time and your obvious intelligence trying to do something about it instead of trying to convince us that we should show reverence to a profession that is so obviously failing us.
Vote:September 15th, 2009 at 10:56 pm
Firstly, bruv, thanks for the compliment. I understand what you are saying in your comments. I suspect, however, that the ability of the legal profession to alter the system may have gone out the window when we recognised that the only legislating was to be done by parliament and ceased to truly develop the common law.
In which case, your criticism is well made, but to meet it successfully may require methods that you would find unacceptable.
Many years ago, as Nickb can affirm, the rules of the common law were seen as too rigid in the forms of pleadings available in civil matters. To compensate for this, the Court of Chancery developed when lawyers assisted the Lord Chancellor in developing the rules of Equity to allow a claimant to follow a path that was not so rigid in its forms. This was not done by parliamentary process but over time and in relation to a need.
Today, however, Parliament is sovereign and Politics rules Parliament. The criminal justice system is used for point scoring and vote winning. The interesting thing in all of this is that the Law Society, the NZ Bar Association and the profession generally are not given much say in the proposals of the justice ministry. To the justice ministry, the word ‘consultation’ seems to mean ‘advanced briefing’. The ministry has some favourites that it talks to, usually around Wellington. Also, never underestimate the power of the Crown Solicitors network and the Police. However, the role of most lawyers in all of this is negligible at most.
I agree that the criminal justice system becomes a game. That starts not with the lawyers but with the Police and the regular clientèle, and the Police also apply it to the unsuspecting public, although the public do not realise it. The Police generally enforce the law according to their own rules and very rarely do they get pulled up on it. Often there are few ways to counter that and that leads to a fair bit of game playing between defence and Police/Crown. The game playing and the rule-bending engaged in by the enforcement authorities is also reflected in the utter distaste that many at the defence bar have for the Police and the Crown. That saddens me, as I entered the profession rather idealistic in my outlook thinking justice was actually possible. That changed soon enough and I don’t believe that any more! But we are always aware of the consequences, especially for our clients. The first time a client of mine was sentenced to imprisonment, I was devastated. Never mind that he probably deserved it. Actually, I think I did ok seeing he was caught with 70 something cannabis plants! Doesn’t change the fact that I wondered if I could have done better. I have lost sleep, as have many of my colleagues, over how our performance can and has affected our clients.
From the outside looking in it can look like there is little heed paid to the complainants, but for the defence bar that is because our primary concern is our client. The complainant has the Police, the prosecutors and Victim Support to look out for them. If they are being failed in that then those organisations are where you should be looking. You don’t hire a lawyer to recover a debt for you and expect them to consider the merits of the debtor’s case and to look out for them. You hire them to look out for your interests. Somebody else looks out for the debtor. And so it is in criminal law. A person only becomes a ‘victim’ once the charge has been proved. Until then they are only a complainant, who may or may not be telling the truth. And complainants do lie, on a regular basis. And so do the Police and so do our clients. In fact, the only ones who don’t lie are the lawyers! We have codes to show the judge that we may not believe what we are being told, and if you think what is being said is rubbish then you should hear what we have to filter out!
Quite frankly, the system that we now have has developed over the last 800 years of British history and has been improving over that time. To be honest, it is at its peak right now. Nobody has yet come up with a better system. That may be unfortunate, but when you consider that many of the processes seen as normal a few hundred years ago are seen as barbaric now, perhaps we should be less worried about the system as it now is.
I think that many of the problems that you identify will remain for as long as we have the presumption of innocence. Of all of the things that I support, that is one thing I am very passionate about. While you have that there will be game playing, lies and deception on both sides and outcomes that some or many are unhappy about. But it is only once you have been on the receiving end of the courts attention that you really start to appreciate some of the supposed protections that the system has.
I no longer hope for systemic change for the better, bruv. I now just hope to do my best for my client.
Vote:September 15th, 2009 at 10:59 pm
Law is not divine justice, bb, it’s justice as best we can make it given what we need to deal with on a daily basis and within our limitations and flaws.
A guilty person who’s not proven to have broken the law, should go free. Someone who’s been found guilty of murder should be treated the same as another, whether they killed a son, a daughter, a mother, a father.
It seems to work. There are anomalies. The thousands of cases per year in every city in the land however indicate success, most times.
What’s the alternative?
Mob rule?
You’re seeking perfection in matters of human interaction. It doesn’t exist. Perhaps it should, but it doesn’t.
Vote:September 15th, 2009 at 11:02 pm
kaya, I suppose that our rules are similar to those of informed consent that doctors have to work with. They cannot force a treatment regime on their patient and neither can we force a strategy on our client. Our advice may be correct in all forms, but they do not have to take it.
The ‘cab rank’ rule is there for precisely the Weatherston situation, so that nobody finds themselves without representation simply because the rest of society or the government (in times past) hates them.
Vote:September 16th, 2009 at 7:31 am
A mere 18 years for this sadistic, cruel murder.
Once again the truth is written up starkly: Innocent human life is incredibly cheap in New Zealand.
This is one of those situations where Morant’s Rule .303 should apply.
Vote:September 16th, 2009 at 8:58 am
Bill Hodge made some intersting comments on ZB to Mark Hosking. 17 MPI was a starting point for this category of murder. It should have been at least 19 to 20 years without too much risk of it being overturned on appeal.
Vote:September 16th, 2009 at 9:09 am
Chuck Bird – well as it was Justice Potter who allowed the defence of provocation in the first place that is hardly surprising. It looks like she is not very good at her job.
Vote:September 16th, 2009 at 9:18 am
Maybe it’s worth considering the Elliots in this – the less likelihood of appeal the less chance of it being all dragged up in court again. Whether it’s 18 or 20 years won’t matter so much, at least it may not be next year.
Vote:September 16th, 2009 at 11:21 am
I agree with a number of comments above about the death penalty. That says at least a human life is worth more than 18 years in prison. If you take a life then you forfeit your own life. That seems to me to be an adequate and necessary and sufficient punishment for such an appalling act of murder.
18 years just seems to say, if you take a life, then we will put you away for a while, but you can be released later on and continue with your life. Sadly Miss Elliott will never have that opportunity.
Vote:September 16th, 2009 at 2:34 pm
The death penalty is a non-starter. Stephen Franks has put some good arguments both ways.
http://www.stephenfranks.co.nz/?p=2372#comments
I think talking about the death penalty is counter productive to getting a sensible law change.
Vote:September 16th, 2009 at 3:06 pm
Good link Chuck. What struck me was this- “Perhaps some will ask whether there might not be a connection between a murder rate over 15 times higher now than when Ralph Hanan achieved his goal”(of doing away with the death penalty).
I think the death penalty is right. It is right morally and will have some good effects. I believe the number of murders in NZ would reduce markedly and the recidivism rate would be zero. I think many innocent lives would not be lost if we brought in this measure.
Vote:September 16th, 2009 at 3:29 pm
stuff it, too much for the day! comment deleted.
Vote:September 16th, 2009 at 3:35 pm
kaya,
“when you develop clairvoyant powers please feel free to comment on how I “think”.”
“A shallow grave and a bullet also has merit.”
Wow. Apparently I am clairvoyant!
Vote:September 16th, 2009 at 3:47 pm
Scott, what evidence have you that the death penalty would reduce the murder rate? There are far to many variables to easily prove case and effect. How many Innocent people executed would you accept?
As I said in my earlier post discussing the death penalty is counter productive in getting sensible and effective law change.
There are a class of murders who should be jailed for life. We can talk about the cost of keeping them in jail but the cost of a trail is also costly and more so if there was capital punishment. This is an expensive up front cost. These is a huge emotional cost to the murder victims family as well.
The way to avoid a trial is to plea bargain so a low life like Weatherston can be offered a some chance of getting out before he dies in return for a guilty plea that does not include blaming the victim.
Vote:September 16th, 2009 at 4:11 pm
Scott (388) September 16th, 2009 at 3:06 pm
“I think the death penalty is right. ”
Scott (388) September 15th, 2009 at 4:33 pm http://www.kiwiblog.co.nz/2009/09/poll_on_morality.html
“I believe that Christianity is an affirming faith that we can live by. It is a source of authority, but it is also a source of guidance and the source of life.”
Not always it seems.
Vote:September 16th, 2009 at 6:07 pm
Nice to see you tracking my posts Cerium.
To send someone away for 18 years for murder devalues life. A life is worth only 18 years imprisonment.
But I say if we had capital punishment then we uphold the value of life.Take a life by murder and you forfeit your own.
With capital punishment then people will be less likely to murder-capital punishment will be a deterrent and we will have less murder. Less murder=more life. More life=life affirming.
All seems logical and reasonable to me. But anyway Cerium what is your solution?
Vote:September 16th, 2009 at 6:48 pm
Although some interpret that Jesus’ teachings condemn the death penalty in The Gospel of Luke and The Gospel of Matthew regarding Turning the other cheek, and John 8:7, others consider Romans 13:3-4 to support it. Also, Leviticus 20:2-27 has a whole list of situations in which execution is supported. Christian positions on this vary.The sixth commandment (fifth in the Roman Catholic and Lutheran churches) is preached as ‘Thou shalt not kill’ by some denominations and as ‘Thou shalt not murder’ by others. As some denominations do not have a hard-line stance on the subject, Christians of such denominations are free to make a personal decision.
So if you don’t call it murder then go for it? Why not just call it termination.
Vote:September 16th, 2009 at 6:53 pm
With capital punishment then people will be less likely to murder-capital punishment will be a deterrent and we will have less murder. Less murder=more life. More life=life affirming.
Scott, where is your evidence?
Vote:September 17th, 2009 at 2:09 pm
Hi Chuck- my reply was to Cerium and I was arguing for my philosophical consistency.
The science appears to be heavily influenced by presuppositions and ideology (much like global warming).
However here are two links that support the position that the death penalty is a deterrent which leads to lowers murder rates-
http://www.dpinfo.com/death_penalty_and_deterrence.htm
http://www.aim.org/publications/aim_report/2000/08a.html
Vote:September 17th, 2009 at 2:16 pm
And this also is good evidence-
“On March 1, 1847 the State of Michigan became the first English-speaking territory in the world to abolish the death penalty. It may be no accident that Detroit rivals Washington, DC as the city with the highest murder rate among American cities having a population over half-a-million. Texas, the state with the highest number of executions, dropped from being the state with the second highest murder rate to the 15th in the 1990s after beginning lethal injection in 1982. ”
http://www.benbest.com/lifeext/murder.html
Vote:September 17th, 2009 at 2:30 pm
Scott – the references you quote are ridiculous – Ben Best looks like a proper but case. And death penalty info? I wouldn’t trust any of these cites at all…
Vote:September 17th, 2009 at 2:35 pm
Excuse me, sites.
Vote:September 17th, 2009 at 3:08 pm
Nothing like a closed mind NOt1tocommentoften .
The facts are these-Texas abolished capital punishment- the number of murders rose dramatically. The death penalty was reintroduced- the number of murders decreased- from having the 2nd highest murder rate in the US it fell to the 15th highest murder rate.
Look – everyone wants less murders in NZ and Texas and everywhere. How do we achieve it? Bring back capital punishment in NZ and watch the number of murders fall.
Vote:September 17th, 2009 at 11:51 pm
Of course, if the UK had capital punishment then Sean Hodgson would be dead now…
Vote:September 18th, 2009 at 5:27 am
“Look – everyone wants less murders in NZ and Texas and everywhere. How do we achieve it? Bring back capital punishment in NZ and watch the number of murders fall.”
Why not just enforce abortions for at risk pregnant women and prevent murders in the first place? Most are obvious at that stage – but not Weatherston.
Vote:September 18th, 2009 at 9:02 am
Cerium-Of your 1263 comments how many are reasonable and thought out and how many are like comment 1263?
Vote: