Provocation repeal bill reported back
The Justice & Electoral Select Committee has reported back the bill to repeal the partial defence of provocation, with unanimous support. They make one change:
We note that the codification of the partial defence of provocation was a reflection of the existing common law partial defence. For the avoidance of doubt, we recommend inserting new clause 5 to make it clear that the common law partial defence would also be abolished by the bill.
They also address some of the myths:
Proponents of the statutory partial defence of provocation have suggested that abolishing it might unfairly prejudice certain groups of defendants, such as “battered” or mentally ill or impaired defendants, whom society would rather see convicted of manslaughter than murder. The Law Commission in its report The Partial Defence of Provocation,1 reviewed all homicide cases in the Auckland and Wellington areas from 2001 to 2005, and found that in only one of the 15 cases in which the partial defence was relied upon was it successfully proven by a battered defendant.
And they note:
We consider that for the majority of such defendants it would be more appropriate for them to rely on self-defence, which would result in an acquittal rather than a manslaughter conviction.
And for mentally impaired defendants:
We further note that as the partial defence requires a defendant to have the power of self-control of an ordinary person, mentally impaired defendants would generally be precluded from relying upon it. Therefore abolishing the statutory partial defence of provocation would not adversely affect mentally impaired defendants.
Whale Oil disagrees with the law change, and notes the disturbing trend for those using the defence to be long-haired gingas with goatee beards.
Hat Tip: No Right Turn
October 20th, 2009 at 12:11 pm
I think this is a knee jerk that we’ll regret later.
October 20th, 2009 at 12:15 pm
Whale Oil is spot on with this. Weatherston attempted a provocation defence, and it failed. Does this prove that no provocation defence will ever be valid? Really?
I don’t take serious objection to anything in the select committee report. But it annoys me that all of this came about because people were horrified by the widely publicised grisly nature of the Sophie Elliott murder (as though unpleasantness in a murder is somehow new and shocking to the poor dears). Let’s get real about it. The provocation defence discussion was just a hobby horse that these people picked up.
October 20th, 2009 at 12:18 pm
I don’t agree that any change is necessary. The idea of allowing a Judge to use their discretion to impose a non custodial sentence for murder also leaves me cold. We have a Chief Justice (female) who has stated publicly she doesn’t believe in imprisonment, and one can only speculate on the sentence Justice POTTER (female) might impose in future when a defenseless pensioner is dragged from his car by a thug and battered to death.
October 20th, 2009 at 12:19 pm
There is no doubt that there were problems with the partial defense of provocation, particularly in the way it was used sometimes (generally by men) to attempt to somewhat excuse killings where they had ‘lost control’ due to sexual rejection (Weatherston) or homosexual advance (Ambach and others). Changes are definitely needed – but, and this could be a big, problematic-in-future BUT, complete abolition without covering some of the reasons/situations why the partial defense was there in the first place in some other way (e.g. degrees of murder, other defense such as diminished responsibility, or simply amending the defense to reduce/eliminate the things that were concerning about its use) could lead to later problems, as MikeNZ has said above.
DPF – I’m not sure what the protocols are for linking to other media on Kiwiblog (so apologies if I haven’t done this in the right way), but I recently interviewed several leading experts for an article taking a little bit of a deeper look at some of the issues (than had been covered in the MSM). You can read that article online here: http://www.nzlawyermagazine.co.nz/Archives/Issue121/121F5/tabid/1976/Default.aspx
There are certainly things to be considered, although it seems the MPs (from both sides of the House) are more interested in just pushing the complete abolition change through – leading perhaps once again to unintended later consequences thanks to inadequate laws.
October 20th, 2009 at 12:20 pm
RRM
I agree as it was proved by the court that the defence strategy was wrong in it’s appeal to provocation.
I also don’t agree with their statement saying the self defence rule would suffice, maybe it didin’t with those viewed but that doesn’t mean it wouldn’t in the future or in other circumstances.
People do not act rationally under provocation, this seems to me to be lawyers/academics playing with words in their little world to sate public outrage and politicians being seen to do something.
Something this National govt seems to be getting good at.
KiwiCraig
Thanks for the article, I’m not a lawyer but will devour it with interest.
I think degrees of murder might be more helpful.
October 20th, 2009 at 12:20 pm
Totally agree guys.
Weatherston fell spectacularly short of the real test for provocation, which is a high threshold, teasing about sexual performance and swearing at someone clearly would not make the average person lose all self control, and the response in murdering her by stabbing her 200+ times is clearly not at all in proportion. The fact the attack was so long and brutal suggested it was more a planned, cold blooded offence (unless you accept that he really did carry the knife their becuase he’d used it to cut fruit).
No, this is not a reason at all to dismantle part of our criminal justice system, and it is disappointing such a situation has been used for political gain.
Good on you for taking a stand Whaleoil.
October 20th, 2009 at 12:26 pm
NickB
It might not have been planned to that degree, but 200X is certainly out of “normal” control.
He could have lost it and then wallowed in his rage, which as a narcissist objectifying on the object of that rage, he would have enjoyed.
The pain at destroying the one he loved could have been a blinder to surroundings or he is just so evil in his narcissism that he was enjoying the pain he thought he was putting her and her mother through.
October 20th, 2009 at 12:31 pm
Oh god
I agree with Whaleoil. I really must be in that parallel universe people keep talking about …
October 20th, 2009 at 12:33 pm
The cause of these crimes was Gingervitis, the evidence is plain to see. Everyone knows Gingas are soul-less, evil and hated universally.
October 20th, 2009 at 12:37 pm
Whaleoil
“The cause of these crimes was Gingervitis, the evidence is plain to see. Everyone knows Gingas are soul-less, evil and hated universally.”
Please do not take my statement that I agree with Whaleoil to apply to this statement. Normal transmission has been resumed!
October 20th, 2009 at 12:46 pm
I’m confused why anyone here is sticking up for provocation as a defence, since I can’t think of any scenarios where it would be valid. Could someone outline a couple of examples where provocation would be valid but the scenario wouldn’t be covered by self defence?
October 20th, 2009 at 12:53 pm
davidp:
I don’t like that idea that simply because we can’t imagine a scenario where it could be valid, we prohibit any accused from ever attempting to use it. I prefer to let future juries hear future trials and judge on the evidence, whatever it may be.
October 20th, 2009 at 1:04 pm
“We consider that for the majority of such defendants it would be more appropriate for them to rely on self-defence, which would result in an acquittal rather than a manslaughter conviction.”
Far from disproving myths, the committee have fallen for the biggest one: that battered defendants can avail themselves of self defence. Our Courts have held that to run self defence there must be evidence of an imminent attack. An inevitable attack which is not imminent can never be self defence.
This means that where a defendant, typically a battered women, is threatened with inevitable attack, if she chooses a moment when her attacker is, say asleep or has his back turned, she will be guilty of murder despite the attack being inevitable.
Self defence should be extended (as it is in Canada) to cover both imminent and inevitable attacks. Then battered women would stand a shot at justice.
The committee says the majority of such defendants it would be more appropriate for them to rely on self-defence. What about the minority, left to do life sentences.
October 20th, 2009 at 1:08 pm
Justification for provacation:
A paedophile attacks your kid
A murderer kills your wife/husband or kid
A rapist attacks your daughter
Just some reasons why provacation shouldn’t be banned.
And, no, this is not a justification to have vigilantes roam the streets to right society’s ills. More this law should be to acknowledge that there is provocation in life and maybe just maybe, some good citizen who isn’t a scum bag, may need to rely on it in their defence!
October 20th, 2009 at 1:09 pm
Chris
oiyez oiyez oiyez
Ernesto and RRM
I concur
It’s a kneejerk by pollies wanting to be seen to do something and lawyers the same. not real world at all.
October 20th, 2009 at 1:22 pm
Davidp, self-defense is quite restricted, and requires defense of yourself or another in a situation of imminent danger, and must be proportional as well.
So, for example, many battered women’s cases won’t be able to fall within that, unless they kill the guy during an actual altercation where they are in imminent danger.
Moreover, the reason for the partial defense of provocation is to cover situations where it is understandable for someone to lose control, go to far, and kill someone – but that they were in such a situation that society should not hold them as accountable as a cold-blooded killer. It is a partial defense, because it does not excuse the killing, it just says that there were circumstances that mean what they did shouldn’t be classified as our absolute highest crime. They are still at fault, held responsible, and punished though…
For example, imagine if you will that Mrs Elliot walks in on Weatherston, who has killed Sophie, but is still mutilating her body. She loses her cool (understandably), grabs the scissors, and intentionally stabs him.
If she was in no imminent danger herself (ie Weatherston wasn’t attacking/threatening/doing anything to her), then there would be a strong argument that she has no hope of self-defense (as Sophie is already dead, so can’t argue defense of another). But I think we all would agree she would have been PROVOKED to intentionally kill someone, and so should’t be held to the same standard as a cold-blooded killer.
Or, what if Weatherston had left the bouse, told her to call the Police because he’d killed her daughter, and then calmly walked out the door and down the street. She is in no imminent danger, but loses the plot, grabs a kitchen knife, charges after him and kills him. If the partial defense of provocation is removed, and there is nothing else put in its place to cover some such situations (diminished responsibility, degrees of murder), then she would face, and quite possibly be convicted, of the harshest charge we have.
October 20th, 2009 at 1:25 pm
christopher simpson>And, no, this is not a justification to have vigilantes roam the streets to right society’s ills.
Vigilantiism is exactly what this is. If a crime is in progress then you’re entitled to use self defence. What you’re saying is that you should be entitled to kill people who you believe have committed particular crimes against your family, rather than letting the police and courts handle the matter. Are you Somalian by any chance? Because what you’re arguing for (revenge killings) is what passes for traditional law in Somalia, but Christopher isn’t a Somali name.
October 20th, 2009 at 1:33 pm
Good examples from Chris as well. The point is, the defense does not condone vigilante-ism – a killer is still held to account, convicted of a crime, and punished – but they aren’t labelled as the same type of criminal as a cold-blooded killer.
October 20th, 2009 at 1:33 pm
kiwicraig…
Your first scenario (Mrs E walking in on her daughter being stabbed) is covered by self defence since she couldn’t reasonably be expected to know whether her daughter was dead or just severely injured. Therefore by killing Weatherston, she was reasonably justified in attempting to save a life.
Your second scenario (Mrs E following Weatherston down the street and killing him) should be covered by diminished responsibility due to temporary mental illness IF she was overcome with grief and therefore not responsible for her actions. Otherwise I’d hope that she’d call the police, because I really don’t want to see revenge killings happening on NZ streets and would like to see the law changed to make them illegal.
October 20th, 2009 at 1:43 pm
actually davidp, with the abolition of provocation those scenarios may not be covered. the threshold for ‘mental illness’ is a hell of a lot higher than cops/lawyer shows would have everyone believe.
That is why many experts, and those that are more conversant with the legal issues than the politicians and mainstream media, are suggesting that even if provocation goes (and there are problems with the partial defense, and change is definitely required), that something such as a partial defense of diminished responsibility (as in a round about way you’ve kind of suggested yourself) should be brought in to cover certain situations.
also, overseas evidence in some jurisdictions where provocation has been abolished have shown that the things people are concerned about (besmirching the victim etc) actually still occur – they are just argued in a different way, or in a different part of the trial (e.g. sentencing).
Therefore what we could have, is a situation where there are reasons we need change (use or attempted use of the partial defense in situations that most people would consider unworthy, eg. weatherston/ambach/other gay killings etc, besmirching the victim etc), but the change the Govt is proposing may not actually remove those problems, and could in fact create some flow-on problems with situations that should be covered in some way.
Provocation was our last partial defense, by the way – so we’ll be left in a situation where it’s murder or nothing (full defense of self defense etc)… and nothing in between…
October 20th, 2009 at 1:48 pm
This is just another example of National exploiting a shocking crime or two to gain votes. A number of years ago some guy topped himself and his three children –a totally despicable act. In response National brought in Domestic Violence Act. The law severely impacted on father’s access to their children. There have been similar murder suicides by mothers before and since but instead of condemning the mother the media asks the question “what could have driven a mother to do this”.
Gay Oakes murdered her partner and tried to claim provocation. No one bothered to ask why she followed her partner back for Oz if he continually bashed her as she claimed. No one suggested getting rid of the defence of provocation then. It is only when a perceived class of victims – women or homosexuals – are the victim that a government sees political capital in a law change.
The law should stand. For examples why see
http://www.stephenfranks.co.nz/?p=2142
October 20th, 2009 at 2:11 pm
Thanks Chuck
I think degrees of murder should also be looked at so this isn’t a one issue issue either.
That’s one of the problems with knee jerk it doesn’t look at the whole nor necessarily in context.
October 20th, 2009 at 2:14 pm
changing little things like this here and there leads to piecemeal reform. I think you’re absolutely correct MikeNZ, in that the Govt needs to take a step back, take a broader view, and make some reform of the system more holistically, so that we don’t have all these knee-jerk changes, without accompanying reform to ensure gaps aren’t left in other areas which will concern us down the track…
As one of the experts said to me in an interview, the New Zealand law on culpable homicide is a mess… and this isn’t going to help things…
October 20th, 2009 at 2:17 pm
The problem with relying on self defence for ‘battered woman’ is that generally they were not under immediate threat when it is pleaded. There are some horrible cases in NZ and Aus legal history where woman go through absolute hell, try and escape and the psycho keeps catching up with them, however technically they have some other redress at the point in time they take action.
I am in favour of the repeal of provocation, I don’t believe there should be a defence to murder that says it is not murder because you “lost control”. That should be just left to the judge and sentencing (another reason I am against mandatory life sentences for murder).
October 20th, 2009 at 2:24 pm
Jeff83
I don’t know that I trust the Judiciary to get it right to be honest.
In Weatherston’s and Burton’s cases there is no doubt, not 100% that they did it and that it was murder.
Life should mean life. Until death.
What makes it worse in Burton’s case was the first murder was just that and clearly so, but he still got out.
That said I think Life in prison is dehumanising and makes other problems for enforcement and safety of other prisoners and staff with those prisoners.
Hence in those cases I would find the death penalty acceptable.
Under these terms I could offer to be the hangman, shottist, injector, as it would be a community service.
October 20th, 2009 at 2:31 pm
Just to clarify, there is no such thing as “temporary insanity” in NZ law. You are either Insane as per S23 of the Crimes Act or not. There is nothing else available in terms of mental health pleas (apart from the very occasional automatism argument). A very large gap exists between being found fit to stand trial and the high threshold for Insanity.
October 20th, 2009 at 3:48 pm
Mike. I wouldn’t vouch they would 100% of the time, but I see giving them the ability to apply discretion as giving overall preferable outcomes to not. I am all for very strong corrective actions been taken against the worst offenders but those on the other scale the cost does not warrant it.
As for the death penalty I have to disagree, partly on ethical grounds and partly because it is to good for them. I would be for finding ways to house those that you would deem eligible for death penalty and for which I would like never to see the light of day to be housed in a way which saves the tax payer. Its not that I do not have sympathy for your argument, I just cant agree with it from my perspective.
October 20th, 2009 at 3:52 pm
I wonder if all those jerked knees still qualify for ACC support?
October 20th, 2009 at 4:03 pm
Jeff
I understand that and do see your side entirely, my decision was based on economics before now, but I have come round to seeing the death penalty as acceptable on the grounds:
1. The victims retribution (which would include society per se) would be final.
2. I think knowing you are in prison until you die is dehumanising and brings other problems for staff and inmates.
3. Punishing someone day in day out without relent (which is a life sentence) is a form of torture to my mind.
4 By taking this sanction against an offender it values the life taken.
Sadly we don’t do well with the other end of the scale at all do we?
If we are to address that issue it will need some fortitude and money to build a two tier setup within the existing prison system. It could be done by providing new facilities for the other end and keeping the bad end in the existing facilities.
The only other alternative I see is a home detention and suspended sentence mixture with intensive behavioural therapy and work skills/education, which I don’t think would be palatable to the majority.
Then we still need to get to the kids at Primary and Secondary school who are at risk and already acting out as Celia Lashlie talks about.
There is the issue of the parents and home environment which isn’t an area for corrections obviously.
October 20th, 2009 at 6:05 pm
Good post Mike.
October 20th, 2009 at 6:40 pm
The fact is that even with this proposed law change the issue of provocation remains live in any alleged murder case because the judge can still take account of the deceased’s actions when sentencing. Little has changed, therefore, other than taking the issue out of the hands of the jury and putting it into the hands of the judge.
That being the case, what is the point? If we distrust juries so much then get rid of them. Otherwise swallow your distaste for Weatherston and realise that the law was based on the acknowledgment that humans are fallible in their emotions and some allowance needs to be made for those failings in special circumstances.
Kiwicraig: My compliments on a cogent, well argued set of comments. I trust we shall see more of you in future.
Davidp: Kiwicraig is correct in his scenario’s, and as someone else pointed out we just don’t have the concept of temporary insanity (isn’t that, you know, a bit like a sudden loss of self control?) isn’t used in NZ.
NickB, I think you are focusing on the wrong point. The issue wasn’t the teasing, it was Weatherston’s narcissism and the effects that can have on those with the problem.
MikeNZ: “I don’t know that I trust the Judiciary to get it right to be honest.” Well, who would you trust, then? What alternative do you suggest?
Jeff & Mike: Interesting discussion. I reject the death penalty simply because our justice system is still prone to failure and I would not want to have an innocent person put to death simply to fulfill society’s need for revenge.
October 20th, 2009 at 7:04 pm
IMO that was a quite serious drafting blue that needed action. Criminal law in England was predominantly ‘common law’ ie judge made law. In the 19th century there was a need to codify criminal common law for colonial use and NZ’s Crimes Act 1960 reflects much of this codification. Interestingly England never codified its criminal common law. The only crime in NZ that AFAIK is not codified is Contempt of [High] Court because this is part of the ‘intrinsic’ jurisdiction of the High Court (which means the High Court can do what it thinks fit unless the matter is covered by legislation or a ruling from a higher court). It is still theoretically possible for NZ judges to ‘invent’ crimes, but this would be extremely unlikely in practice, although judges may have to indicate the scope of criminal law (eg a Saki road roller is a vehicle despite not carrying passengers or goods contrary to the dictionary definition).
If the Crimes Act section covering provocation was merely repealed, it would have popped up as a ‘common law’ defence and a case would probably have gone all the way to the Supreme Court on this.
October 20th, 2009 at 7:13 pm
Peterwn: What was a drafting blue? Anyway, I don’t think it can ‘pop up’ as a common law defence because the Crimes Act is a code, so it takes away other common law offences.
I seem to remember a Crown Law (?) opinion that contempt of court is not a criminal conviction- something about Nick Smith’s brush with the Family Court?
October 20th, 2009 at 8:46 pm
Ah, so our legal rights when facing the most serious charge the Crown can bring have just been eroded by such sage and experienced judges of the human condition as Jacinda Ardern and Kanwaljit Singh Bakshi (though who’s to say what Mr Bakshi may or may not know about criminal behaviour).
That’s all right then.
October 20th, 2009 at 9:43 pm
I would be interested in a lawyers opinion as to what the Court of Appeal would likely rule if Potter had of disallowed the provocation defence on the grounds that it was totally without merit.
Surely it is better to let it up to a judge decide whether to allow the provocation defence than disallow it altogether.
In the Bruce Emery case I think the jury would have likely found him not guilty. Which would not be right unless they believed he was defending himself which would appear they rejected.
October 20th, 2009 at 10:02 pm
Chuck, based on the little I have read of narcissism personality disorder, I think Potter J would have been very brave not to allow the partial defence to go to the jury. I say that because I am coming to the opinion that Weatherston’s use of the defence was not without merit at all. In fact, it is possible that, had the psychiatrists had been a bit stronger in their opinions, that it may have succeeded. I think that saying the use of the defence was without merit, as most people say, shows a misunderstanding of the partial defence itself. Most people base their criticism on the facts, but they should base it on the law.
What was without merit was Weatherston himself! It was giving evidence that sunk him, not the use of the defence.
But I agree that the current law should remain, as you say in your second sentence. In fact, I have seen judges refuse to allow it to go to the jury.
Was provocation disallowed for Bruce Emery? I don’t remember. Hard to see how he could qualify for it, though.
October 20th, 2009 at 10:08 pm
FE Smith, do enjoy your excellent comments.
I am studying provocation as we speak, so only have some basic grasps of it at this stage, but there was one part that I didn’t quite understand which ties in with the Weatherston case.
The first part of the provocation test (without having my books in front of me) is whether the provocation was sufficient to deprive a person (having the self control of an ordinary person, but otherwise the characteristics of the offender) of the power of self control.
The suggests an objective test, but does it mean that in seeing if the offender meets the test, the Courts can look into the characteristics of the offender? I’m not phrasing this very well, I guess what I am trying to say is that are mental characteristics relevant, such as if the accused had anger or temper problems? This seemed to be the case with regards to Weatherston.
Cheers
October 20th, 2009 at 10:15 pm
FE
With some of the judgments I have read in the past years I wonder if sometimes what planet some of the judiciary are on.
I think I mentioned two but there have been many.
I might open a file and stick the clippings in so that when we have this conversation again I can get them out and put them to you.
One in Queenstown with a judge samantha something involved two young men (+18) who planned and carried out a burglary of a pub, but got off with less than a wet bus ticket and the judge appeared to take into account that they had failed in her sentencing!
That there was conspiracy and execution didn’t really make a difference and in my mind there was no deterrent affect of their sentencing to others.
As I am not as esteemed as you are in these thigns I just felt disgusted with all of you as i would expect other judges & lawyers to complain.
If I could complain to someone to get it looked at I would but who? I’m just an ordinary guy.
As for the death penalty
I think most people incl us think the same as you with respect to innocent men, so I have to dismiss your position,
as Burton and Weatherston are bang to rights so I have no problem with them, of course if that wasn’t so I would not consider their cases applicable to a death penalty.
The system will always make mistakes as it is people who make them, so you are safe in your position.
October 20th, 2009 at 10:24 pm
Nick, when I tutored Criminal Law this was always the hardest one to get the student’s heads around. In fact, even in practice one needs to remind oneself every now and then!
You are not phrasing it badly at all, in fact that is a good description. As you are discovering, the hard part is that the courts say that is an objective test, but it reads like a subjective test. I hold the view that it is actually completely subjective, especially when applied by the jury, but the courts do not like the idea of an accused person being able to say they were uniquely unable to remain calm. What it means is that we don’t accept anybody who has a naturally short temper or no self-control using this defence so find something else to use to justify the provocation! That is para-phrasing, but it is the policy behind the rule!
I am not in concert with many of my academic colleagues in this view, but then I take the view that the concept of innocent until proven guilty is a legal fiction as well!
The test is a mixture of objective and subjective, apparently, but if you apply it subjectively you will be closer to the truth in practice. In this case, the ability of Weatherston to claim provocation actually depended on the strength of his NPD, rather than anything that Sophie Elliot did. That is hard to grasp for a layman as they seem to think that provocation requires something pretty bad from the deceased, but actually the focus should be on the accused. At some level NPD seems to have as an effect a tendency to the sort of rage that Weatherston displayed. The question is whether his NPD was that strong as to cause a loss of self control or whether it was being used as a convenient excuse. The jury obviously found the latter and I tend to agree with them. My understanding of the psychiatrists evidence is that they were unwilling to say this was anything more than a mild case of NPD, so it wouldn’t generally have the effect of uncontrollable rage on the person with the disorder. But the thing is that there is enough in it for it to go to a jury.
Does that make sense? I am not sure now!
Provocation this close to exams? Gee, you have my sympathy! I would prefer to have it early on rather than this late..
October 20th, 2009 at 10:28 pm
Nickb, FES ignored the issue, notwithstanding his correctness.
The issue is this: why the fuck are you studying provocation as a defence when the lawmakers are going to remove it from the Crimes Act in the very near future!
Go and read up on something else!
October 20th, 2009 at 10:30 pm
Thanks a lot for that FE, will keep it in mind, that helps greatly!
I take it from your previous comments you don’t support the removal of provocation?
Yes, sadly, exams coming up. I am finding criminal law the hardest this year, and finding the supposedly harder papers like Equity and Land Law relatively straight forward.
Think it is all the objective and subjective tests haha
EDIT: Gooner, unfortunately until it is removed from the statute books we are required to learn it! Unfortunate timing I agree
October 20th, 2009 at 10:33 pm
Mike,
firstly, no lawyer can complain about the sentencing decision of a judge because there is no-one to complain to! You can’t, I can’t and nor can the Law Society or anybody else in the profession. Likewise, no judge is subject to any other judge so the best that can happen is some internal criticism in the common-room if other judges disagree with a particular sentencing. The only possible avenue in which the sentence can be criticised is on appeal. That said, the prosecuting authority can appeal, and does appeal, if it feels the sentence was too light. Tellingly, far more sentences are reduced on appeal because they were too heavy than are reduced on appeal because they were too light. That tends to suggest that when our judges err they tend to go heavy rather than light.
Secondly, every sentencing is different. The people are different, the facts will always have something in them that is different from other cases and those differences make up the reasons for what the public sees as inconsistency in sentencing. It is a subjective exercise and the judge on the day is always in the best position to make a call on the correct sentence.
So the legal profession has no control, actual or implied, over judicial sentencing, except via appeal. So don’t blame us for it. But how would you change it? Perhaps give the public the chance to appeal sentences? Or have them reviewed administratively by the Minister of Justice, as is done sometimes in the odd civil law jurisdiction?
So, if you agree with me on the position re innocent men, then what criteria would you place on the imposition of a capital sentence to prevent it being applied to an innocent man?
October 20th, 2009 at 10:37 pm
Gooner, that is gold! However, let me tell you a little story: when I was at law school a piece of legislation was due for change. It had been passed and was awaiting the royal assent. Our lecturer told us that if the royal assent was given in between the end of lectures and the exam then we had sure as hell know the new law because that is what we would be examined on!
There is no such thing as a certainty at law school!
Nick, equity and land are simple compared to crimes. Even just because crimes has so many damn cases to learn!!! And I do not support the removal of the partial defence, no. Good luck with the exams.
October 20th, 2009 at 11:40 pm
Breaking down peoples rights again.
Crims or not, doesnt matter.
The legal system we have has been build by some good moral people over i suposse a couple hundred years or more and our current gov(not just nats) has some kind of dillusion that it can dick around with it as much as it like and not face adverse consquences.
October 21st, 2009 at 9:32 am
FES
I am surprised as I thought all judgments were subject to enquiry and obviously appeal is that, but that is to terms of law isn’t it, not the actual sentencing?
I see the point of not asking Judges to 2nd guess in fear of enquiries but in the Queenstown case they got piddly sentences.
The inference in the reporting was that because they failed stupidly they got off light, I think that sends the wrong message to others who are thinking along the same lines. It brings the process into disrepute.
Criteria on capital sentencing, well eye witness(es) as in both the Weatherton and Burton cases and that they weren’t self defense.
October 21st, 2009 at 10:27 am
Perhaps a solution to the provocation defence would be to define provocation as to what would provoke a reasonable person – not someone with a severe personality disorder.
Most reasonable people could kill under extreme provocation although very few do. For example suppose a drunk smashes into your car and kills or seriously injures a family member. This drunk then acts most offensively. You lose the plot and bash him over the head with a tyre iron killing him. I would say a reasonable person could be considered provoked.
Now consider someone who rear ends your car and causes no injury. A reasonable person could not be considered provoked –an unreasonable person may consider they were provoked. However test should be based on how a reasonable person might react.
October 21st, 2009 at 10:42 am
Mike, never trust media reports of a trial or sentencing. They are rarely accurate and never report everything that went on. I have very little time for most court reporters as most of them are pretty ignorant of the concept of justice, or even of balanced reporting.
October 21st, 2009 at 10:54 am
cheers