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.

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.

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.

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?

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

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!

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..

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.

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

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.

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.

That’s all right then.

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?

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.

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.

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.