Kiwiblog

 It has become fashionable in some parts of the right-wing blogosphere, particularly the prickly part in Hong Kong and the oily section in Auckland, to deride Mr Farrar’s conservative credentials and indeed to allegedly expel him from the Vast Right Wing Conspiracy (though I believe he still has his authentic membership certificate).
 
One topic however on which Mr Farrar was undoubtedly still strong, vitriolic and fiery was the trial of now-convicted murderer Clayton Weatherston.  So strong, vitriolic and fiery was he (and his legions of devoted commenters) that the Solicitor-General actually took a look at the issue before deciding against taking any action against this blog.  As a result though, Mr Farrar adopted a much stricter policy about what could and couldn’t appear on his blog during trials.
 
Today, Justice Minister Simon Power announced “the partial defence of provocation is to be abolished after the Crimes (Provocation Repeal) Amendment bill was passed last nigth [sic].”  Weatherston had controversially attempted to use this defence at his trial which seemed to most simply to be an excuse to besmirch the victim and showcase his ego.
 
In a number of his posts Mr Farrar stressed he did not know Clayton Weatherston or his victim Sophie Elliott. 
 
Well, I did know Clayton Weatherston.  I worked with him for almost a year.
 
I worked with him at Treasury.  I was an analyst, he was the team’s economist.  He gave me the distinct initial impression that he had been at Treasury for some time and was quite senior though I was told later he had only been there a few months before me and was a summer intern who had stayed on.
 
His role was to support the policy team with economic advice and expertise though I saw little evidence of this.  He always seemed to be working on ill-defined special projects which no one else knew about.  He was very quiet, kept to himself mostly but was not unpleasant.
 
In one of our rare conversations, he talked quite excitedly about being the Shaq the Cat mascot in Dunedin for several years.  He got letters from Shaquille O’Neal’s lawyers telling him to stop breaking copyright and was warned by the Police for inciting opposition fans with obscene gestures involving his tail.
 
This seemed highly out of character for the quiet, almost shy economist I saw at work.
 
In terms of style, even then he had a haircut that showcased the studied deliberate messiness which only half an hour with hair gel can achieve.  He either wore the most casual, hippest clothes or a hugely expensive suit.  There was no middle ground in his wardrobe.
 
He left Treasury to return to Otago University.  I think he was studying the economics of sports gambling and seemed to be looking forward to the change.  His going away event was low-key and sparsely attended.  He rather faded out and I did not think much more about him for many years.
 
When I saw the breaking news regarding the death of Sophie and the arrest of Weatherston, I was simply shocked and appalled.  I had no sense that Weatherston could be capable of such evil.  Certainly, he was aloof, faintly arrogant but not the most unpleasant person I had ever worked with.  Not even in the top ten. 

I cannot pretend to understand why he did what he did.  Frankly, I do not wish to. 
 
I can say that I think the fact that Sophie was leaving Dunedin to start work in Treasury was an issue for Weatherston.  By all accounts Sophie was extremely smart and personable.  It is likely that she would have superseded Weatherston’s limited legacy at Treasury very quickly.   My sense is that this realisation would not have sat well with him.  Beyond that, there is nothing I can add.

Jenna Raeburn blogs:

It utterly irritates me that the provocation debate has been almost entirely subsumed by the Weatherston case. There are three massive problems with this.

The Weatherston case has been the catalyst for change, but for my own part I have been supportive of a law change for some years since the McNee case.

Everyone has forgotten about the better, more philosophical justifications for removing the defence. In my mind the biggest issue is the assumption that, given a high enough degree of provocation, any ordinary person might resort to homicidal violence. This is a fundamentally flawed conception of human nature and is no basis for distinguishing levels of culpability.

Bravo. And then she addresses those who argue just for a change:

The second major issue is that the defence is inherently discriminatory. It does not provide protection to those who are not considered to have an “ordinary” level of self-control. Worse, it provides homophobes, misogynists, racists and other bigots with an excuse to murder the subjects of their hatred. This is exacerbated by the fact that the legal tests are such a complicated mix of objective and subjective factors that juries never understand it. None of this can be fixed simply by “changing” the defence – these are inherent issues, so it has to be scrapped entirely.

And then the cases before Weatherston:

We have also forgotten about the other many victims who have been defamed by murderers pleading provocation, and the many cases where the defence has absurdly been successful. Why didn’t the Ambach case cause the same outrage as Weatherston? It was barely reported, and yet it is twenty times as outrageous because Ambach was actually successful. The McNee case was very similar, and is also largely forgotten despite having more publicity.

Those interested in more info on these other cases could read a good article at Salient by Conrad Reyners on this.

I think the McNee case was outraegous. Even if his killer Edwards was heterosexual, that would be no reason for him to kill McNee, but Edwards frequently slept with men for sex – in fact he tried to blackmail several of them. This violent thug just conned the jury and got manslaughter instead of murder. The problem with the provocation partial defence is it encourages people to try and defame their victim.

People are calling the abolition of provocation a knee-jerk reaction to the Weatherston case. I cannot believe the sheer numbers of people I have noted expressing this belief over the last couple of days as this has all made the news again. This is the one and only thing that inspired me to write a post about what essentially ought to be a non-issue. It ought to have been so since Rongonui at least. A change has been on the cards for years, especially since the Law Commission report in 2007. Anyone who believes this is all about Clayton Weatherston should read it.

I think the Weatherston case has been a catalyst for MPs. It has meant the law change has happened quicker than otherwise would have been the case. But again I agree that the need to change the law has been apparent for many years.

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

Associate Professor Julia Tolmie calls for the defence of provocation to be reformed, not abolished. She first provides a good summary of problems with the current law and concludes:

There is something wrong with us, as a society, trying to discourage domestic and homophobic violence on the one hand, while using a criminal defence to excuse people who embark on its most horrible forms.

Her preferred response:

The problem here is that emotional and sexual rejection, as well as sexual advances, even indecent assaults, are not extreme circumstances. They are common human experiences and, although emotionally painful, ordinary people do not respond to them with murder.

So does this mean that we should we get rid of the provocation defence? I would argue, to the contrary, that we should first simplify it so it is easier to apply and automatically exclude it from being left to the jury in these kinds of cases. Only if such reform proves impossible should we get rid of it.

This could help, but I suspect defendants will simply pick an excuse justification of provocation that is not excluded, and claim this happened to them. As the victim is dead, it will come down again to trusting the liver killer over the dead victim.

The defence of provocation reduces a murder conviction to manslaughter. There are cases where a person has killed in response to circumstances that are so horrible that most people would not want to label the person a “murderer” and would not want them to serve life imprisonment (still the presumptive sentence for murder).

It is worth noting a Judge can give a lesser sentence than life now, and my preference is that where there really was legitimate provocation, the Judge uses discretion at sentencing. I’m not so sure a label is that important.

For example, in Australia a woman survived 20 years of what can only be described as torture at the hands of her husband, to finally learn he had regularly raped their daughters since they were 6 years old. She snapped in response and was allowed to argue the defence of provocation.

Interestingly it is not revealed if she was successful, but I think most would agree a preferable response would be to get him arrested.

Would we want Sophie Elliott’s mother, if she had attacked Clayton Weatherston when she opened her daughter’s bedroom door to find him stabbing her lifeless body, to be labelled a murderer and receive life imprisonment?

In this circumstance she would almost beyond doubt be able to argue self defence as he was still armed.

While I was on a plane, Parliament voted 122-0 to send the abolition of provocation as a partial defence to murder bill to Select Committee.

I wonder what the vote would have been before the Weatherston trial? I supported it going previously, but there is no doubt Weatherston’s defence strategy acted as a major catalyst.

The SMH reports:

A young Greek woman who allegedly set fire to a drunken British tourist’s genitals in self defence has become an overnight hero in Greece, local media reports say.

The 26-year-old, who has been cheered in public for her actions, is defending charges of causing bodily injuries to the 23-year-old Briton and endangering private property.

She allegedly set fire to the man’s penis and testicles in a nightclub on the island of Crete after he allegedly waved his genitals at a number of women and tried to force her to touch him.

I’m not condoning anyone’s genitals being set on fire, but it is hard to have a lot of sympathy for the victim!

A police statement said the British man allegedly took down his trousers and waved his genitals at a number of girls.

He then targeted the 26-year-old Greek woman, “forcefully fondling” her and asking her to grab his genitals.

Police said the woman asked the man to leave her alone but when he wouldn’t, she poured the alcoholic drink Sabucco over his penis and testicles.

When that also failed to stop the man’s advances, the woman took a lighter and set fire to the man’s genitals, local media reported.

Personally I would have recommended calling the cops or delivering some quick swift kicks.

The Herald reports:

Accused killers will no longer be able to rely on the defence that they were provoked.

The partial defence of provocation will be abolished, Prime Minister John Key announced this afternoon.

Cabinet accepted Justice Minister Simon Power’s recommendation on the issue and a bill has been drafted to be introduced into Parliament this week.

There are at least 101 votes out of 122 to abolish it, so it will be gone by the end of the year.

I support this, but do hope the select committee especially look at whether there is enough flexibility around sentencing to allow issues of provocation to be taken into account for the sentence.

I support the provocation partial defence going, but Deborah Coddington gives an example to argue the other way:

This is no criticism of Mrs Elliott’s stoicism, but if I heard someone stabbing one of my daughters on the other side of a locked door, I hope I would react swiftly.

Proficient with firearms, I would fire through the door lock. Finding my daughter dead inside, I would shoot and kill the bastard.

I would re-load and shoot again to make sure he was dead – probably not 216 times.

I would call the police, I’d be arrested and charged with murder, and I’d throw myself on the mercy of the court.

Should this crime be treated on an equivalent basis as the crime committed by Clayton Weatherston? Is it comparable as that committed by him, or other crimes committed by, say, Paul Dally (the killer of Karla Cardno) or Jules Mikus (the killer of Teresa Cormack)?

And what about when it comes to sentencing – should there be any mitigating circumstances taken into account by the judge?

My response is that firstly she could claim self defence. It is reasonable to think that having killed her daughter, he may try and kill her.

But what if he had finished the job and was walking away from the house so there is no issue of self defence.

Well yes if you do shoot him then, you would be convicted of murder, not manslaughter if provocation goes. But there already is a huge degree of range in the brutality of murders. Being found guilty of the same crime does not mean you are the same of them.

And the key thing is the circumstances could be taken into account with sentencing. A Judge can give a lesser sentence than life under s102(1) of the Sentencing Act 2002.

In the conditions Deborah describes, a Judge could give a suspended sentence (no jail time unless you reoffend) for the killing.

Both the Press and the Dom Post cal the provocation partial defence to go. First The Press:

The Law Commission was quite correct when it said that the defence of provocation was “irretrievably flawed”. …

The most glaring reason for abolishing the defence is the trauma it causes to the family of the victim and indeed to the relatives of the accused.

The parents and other family members of murder victim Sophie Elliott had already suffered a grievous loss. They then had to endure hearing her personal life and her relationship with Weatherston being dissected in intimate detail as the defence team built its failed provocation argument.

Adding to the inequity was that the only person who could have refuted much of Weatherston’s evidence was the victim herself.

Indeed. It encourages killers to lie when there is no-one to contradict them.

The simplest and best solution to the provocation issue is that suggested by the commission. Abolish the defence and leave it to the judge, when sentencing, to take provocation into account as an aggravating or mitigating factor. The Government must move swiftly to achieve this, either by introducing legislation itself or by helping to facilitate the introduction and passage of a Labour bill.

The Dom Post says:

Section 69 of the Crimes Act says culpable homicide that might otherwise be murder may be reduced to manslaughter “if the person who caused the death did so under provocation”.

It is an archaic part of the law that unconscionably turns the victims of society’s most serious crime into victims for a second time as their reputations are sullied by the people who killed them. …

The Labour-led Clark Government had at least one opportunity to change this obsolete part of the law. The Law Commission delivered a report in 2007 recommending its abolition, but the justice minister was too busy at the time removing people’s election-year rights.

I think that is Mark Burton they are referring to. Ouch.

And finally we turn to this Stuff article for why it is certain to go:

Murderers will no longer be able to claim they were provoked into committing their crime under a law change the government is planning.

Cabinet will consider the proposal in the next two to three weeks but Prime Minister John Key has given his approval, making it almost certain to go ahead.

A key aspect is that as of around 2002, Judges can now give a non parole period of less than 10 years. So in a case where say a mother kills their daughter’s rapist as he is leaving the scene, they would not automatically go to jail for at least ten years.

Very pleased to see some stories on Sophie Elliott, so that Weatherston’s warped version of reality is not the final say on her. The Herald reports:

While her family remember a loving daughter with everything to live for, prominent academics overseas have described her as having a “beautiful mind” and an exciting career ahead of her.

Peter Lambert, economics professor at the University of Oregon, Jean-Yves Duclos, editor of the Journal of Economic Inequality and economics professor at Laval University in Canada and Sir Tony Atkinson, professor of economics at Oxford University, said Sophie had remarkable ability for a young person, exhibited considerable prescience in her thinking and could have been a leader in the field of welfare economics.

Professor Lambert said a paper she wrote titled, Why measure inequality? A discussion of the concept of equality, which was published in this month’s edition of the Oxford University economics journal Oxonomics, was “easily the best essay on inequality” he had ever read.

Professor Duclos called the paper a “remarkable piece of research for such a young person”.

In a few paragraphs, Sophie had been able to strike right at the core of welfare economics and grasp many of its complex philosophical and ethical issues, he said.

“Elliott certainly had a beautiful mind.”

I recall reading, shortly after her murder, that her ambition was to be the first female Governor of the Reserve Bank, and thought what a wonderful ambition to have. And from the sounds of it, she may have got there if not for Weatherston.

Incidentially, does anyone have access to, or have a copy, of the paper which just got published? I’m interested to read it.

The Herald has a less flattering profile of Weatherston. While my thoughts are mainly with the Elliott family, I do feel great compassion for the Weatherston family also as they cope with the horror of what Clayton did and what he is.

They also talked to Lesley Elliott. I twittered yesterday that Lesley was my hero of the month for hugging after the verdict both Clayton’s mother, but also his lawyer – Judith Abblett-Kerr. True class. Lesley wants to:

In an interview with the Herald prior to the verdict, Mrs Elliott said she now wants to focus her energies on keeping young women away from abusive and dangerous relationships. Her daughter had complained of being assaulted by Weatherston prior to the killing.

“My legacy to Soph is to somehow get to girls in their late teens and twenties, when they start to date guys, and [explore] what is acceptable behaviour and what isn’t,” she told the Herald.

The sad reality is that if Sophie had dumped Weatherston the moment he became abusive, she might be alive today. And after he assaulted her she should have never seen him again. Her desire to try and end the relationship as friends, ironically acted against her.

The issue of whether provocation should be a partial defence to murder is canvassed in this article. I am with Women’s Refuge:

Women’s Refuge chief executive Heather Henare said: “Because of the way the defence was run, this trial became a perverse opportunity for a killer to continue to persecute his victim and her family after her death.

I actually think that was part of his plan all along.

“This trial turned justice inside out. The killer became the victim and Sophie Elliott was portrayed to us all as he chose to describe her. Unfortunately for Clayton Weatherston, the jury didn’t buy it and nor did the hundreds of thousands of New Zealanders who watched him giggling on television.”

Never has a defence strategy so backfired, in my opinion.

Stuff reports that the provocation partial defence may go:

Killers will lose the right to claim provocation as a defence after murderer Clayton Weatherston’s attempt to smear his victim.

It is understood Justice Minister Simon Power wants the controversial defence scrapped as soon as possible and will announce his intentions today.

I think such a move would be exceptionally popular.

Stephen Franks argues for why the partial defence should be retained. He says Judges should set a higher threshold for its use, but it should be retained:

From this case the judges should take a lesson, and simplify the defence of provocation. It should only relate to what would provoke ordinary reasonable people, not drunks or P addicts or nut cases, or homophobes. The judges should now punish those who turn it into mockery.

From other cases they should accept that ordinary people want the law to distinguish between those who start fights or cause trouble, and those who respond even if their response is “disproportionate”.  The criminal should bear the risk of significant  disproportionality in the response to thuggery, rape or robbery , even if common sense says the defence can only go so far.

The Press reveals the Weatherston defence team tried to get photos of Sophie’s wounds supressed:

King told the court that the autopsy photographs were highly prejudicial because of their graphic and disturbing nature. “They illustrate the painful death of a beautiful young lady in her prime, and the injuries are simply horrific,” King submitted.

He said they provided little, if any, probative value and would “likely distract the jury from their proper task in assessing the partial defence of provocation”.

King entered a “back-up submission” that three photographs showing the injuries to Elliott’s face should be removed.

I thought that number and nature of the wounds was an essential part of the case. I’m glad the Court of Appeal dismissed the defence’s application.

The court ruled that the submissions were “hopeless” and the photographs were highly relevant to the issues at trial.

They had been carefully chosen to minimise their prejudicial effect as much as possible.

“Any remaining prejudicial effect is a natural consequence of the nature of the wounds inflicted by Mr Weatherston,” the court ruled.

Exactly.

The Herald reports:

The family of a man who was bashed to death with a banjo have angrily condemned the provocation law that allows a partial defence of murder after his killer was found guilty of manslaughter last night.

Ferdinand Ambach, a 31-year-old dive master from Hungary, had been accused of murdering Ronald James Brown, 69, after the pair got into a violent argument at Mr Brown’s Onehunga flat on December 7, 2007.

He claims that Mr Brown, who was gay, made unwanted sexual advances towards him. During the trial in the High Court at Auckland, his lawyer, Peter Kaye, raised the possibility Mr Brown may have attempted to rape Ambach which triggered “a monstrous rage” where the tourist temporarily lost his self-control.

As far as I know, there was no evidence submitted to prove this – it was just rasied as a possibility.

After three and a half days of deliberations, the verdict was delivered at 6.45pm. When Ambach was found not guilty of murder, but guilty of manslaughter, there were gasps from Mr Brown’s friends and family in the public gallery. Ambach was expressionless as he was remanded in custody until sentencing.

The family say:

Mr Brown’s niece Tracy Evans told the Herald her family were “deeply disgusted with the verdict”. She said the [provocation] law was “archaic” and had allowed a murderer to receive a reduced sentence for a “horrific crime”.

“It’s a sad indictment on our legal system that the defence can completely fabricate a case and slander a good man’s character in an attempt to defend a murderer.”

Indeed. Made worse by the fact the dead person can not defend themselves.

I do know of a couple of cases where provocation was exceptional, and a manslaughter verdict was (imo) justified.

But in recent years more and more I see the provocation defence being used to slander the dead, and especially used for “homosexual panic” claims. One case had a the accused get manslaughter only with this defence despite the fact he was a male callboy!

If unwanted sexual advances was legitimate provocation to kill someone, the population would be greatly reduced.