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Thursday, 23 July 2009

In Defence of the Partial Defence of Provocation

The case we have all watched in horror playing out in the news is over. Clayton Weatherston has been found guilty of murdering Sophie Elliot and his attempt at the partial defence of provocation was rightly shown the contempt it deserved by the court. At MandM we maintained our standard policy of refusing to comment while a trial is in progress but now the verdict is in we will add our voices to the debate raging in New Zealand over the partial defence of provocation.

Like everyone, we found it sickening to watch the narcissistic Weatherston trying to paint his victim as evil in an attempt to have his brutal stabbing and mutilation of her rendered manslaughter instead of murder. Watching her brave mother, who not only testified but who tried to stop him stabbing her daughter, suffer through the ordeal of the trial, made all the worse by Weatherston's desperate attempt to save himself from the consequences of his actions, was awful. As a mother I cried with her. No mother should have to bury her daughter much less witness her daughter's murder and then sit in the same room with her killer as he spent days in the court room trying to spin his actions into something understandable.

However, likewise, no accused should lose their right to due process, to a fair trial, just because this accused was so obviously guilty and so obviously wrong and utterly reprehensible in his attempts to suggest that his culpability should be reduced. The Weatherston case was open and shut murder. However, not all cases are this clear and some people are falsely accused and some accuseds should succeed with a partial defence of provocation. If we remove the partial defence of provocation because of our disgust at Weatherston and what he tried to argue in the courtroom and how deeply we feel for Mrs Elliot, we would do a far greater wrong.

Accuseds will often try to raise defences for which, if they are being honest with themselves they should not be trying to raise; however, if we remove a defence because we do not like witnessing these attempts, we will be removing it for those whose actions did amount to provocation, who do deserve the lesser charge of manslaughter.

For example, imagine if Mrs Elliot, on breaking down the door to Sophie's bedroom and witnessing Weatherston stabbing her daughter's dead body, had, after calling the police and having a minute to think it through, gone back upstairs with an axe, smashed the door in and hacked Weatherston to pieces. She would have faced murder charges and she would not have available to her a defence of self-defence, her daughter was already dead so she was not defending her, Weatherston wasn't cornering her and threatening her and the force she used was arguable disproportionate. Neither, would she necessarily be guaranteed a defence of temporary insanity. Her best option would be to argue for the partial defence of provocation.

Would you want her to not have that option, to be stuck with murderer as her label? Surely, even though we can all appreciate hacking Weatherston to death with an axe at that moment would have been wrong, we can at least see that the level of blame we as a society should attach to the likes of Weatherston, should not apply to the hypothetical, axe-wielding, Mrs Elliot in my scenario.

Not all killing is equal. We can tell the difference between an accidental death and a pre-meditated killing. We recognise that there are degrees between these two extremes. We also recognise that sometimes murder is understandable, even if not completely excusable; this is precisely why we have the partial defence of provocation.

The person who reacts to discovering an intruder in their child's bedroom by repeatedly bashing them over the head with a cast-iron frying pan is not on par with a serial killer. These degrees are recognised in both the sentences the courts hand down and the convictions placed against the actors names and it is important for justice that the police, the courts and accuseds have this range of options to measure a person's actions and intentions against when they grapple with the evidence and the events and circumstances surrounding a homicide.

People accused of criminal acts, who are not prepared to face up to what they have done and accept the consequences, will always try to run any kind of far-fetched defence they can dream up in a desperate bid to get off. Had Weatherston not had provocation as an option he might have tried self-defence or a complete denial of guilt and you would have seem very similar attempts to smear the victims playing out on the news as he tried to run with these options; likewise if consideration of provocation is moved to sentencing. The only way you can get rid of attempts to smear the victim and the pain the family of the victim goes through in a trial is to completely get rid of trials and summarily convict all accuseds. What Mrs Elliot and Sophie's family, friends and memory went through, terrible as it was, is nevertheless, the lesser evil.

The system worked. Weatherston’s attempt at provocation rightly failed and in making that attempt he made himself look worse and his victim gained more sympathy, distasteful as the process was. Further, we all understand as a community that the court was right to deem this man a murderer. John Stuart Mill was right, truth becomes more evident and thus, more valuable, when it has been permitted to grapple with falsehood.


  1. I agree.
    However, most accused are not sufficiently aware of the law to know what defence to pursue ... this is taken under advice from legal counsel. Consequently, to say definitively that a defence is/was adopted by an accused is somewhat misleading. As you say, 'The Weatherston case was open and shut murder.'
    Where does that leave their legal counsel, pursuing a defence that is patently absurd, and with all the associated ramifications? Disassociation in the belief that a 'greater test of truth/falsehood' is run and viewing the process as a joust, in my view, doesn't really justify the course of action adopted.
    The law will, in all probability be changed, it will no longer be available for those cases/circumstances you cite ... and this certainly is not due to Weatherston alone.

  2. While it would not alter what the mother had to listen to, I do think the idea of recording and filming courts for broadcast as well as daily article updates should be banned. I don't want closed courts, but going to a court takes some effort. Broadcasting the case as it runs is a perverse form of entertainment. I say let anyone attend a court, but no public filming or recording ever, and no reporting until after the verdict.

  3. Hear hear! It's nice to know that I'm not the only one out there saying this.
    It seems just morally obvious that a person genuinely provoked is not in the same category as a premeditated killer. Everyone's just reacting to the fact that Weatherston's lawyer claimed that he was provoked when he clearly wasn't. 
    It's like when the buffoons on the left say that because some people bash their kids and claim that the force was reasonable, the reasonable force defence should be abolished. It's stupid reasoning there, and it's just as stupid here.

  4. Counsel's job is to explain the legal options available to their client and make recommendations as to what they think is the best legal option. The client then instructs the counsel and sometimes clients are adamant about going in a certain direction even though the counsel knows it is a weak direction or it is likely to fail. Clients get stuck on things, they fail to understand the law, ignore your advice and then they get very insistent. (One of the reasons I am not keen on going into practice is precisely this factor,  you end up having to argue angles you don't really believe in.)

    I doubt that Weatherston's counsel thought that provocation was the best route as I doubt many qualified lawyers would think that the evidence he had to work with could amount to provocation; the criteria for provocation has been honed from hundreds of yeas of case law and is prescribed by statute, I could not fathom what the defence lawyer was thinking when I saw the media reports of the evidence, I mean, every case is arguable but this one was really pushing it. However, based on what I saw of Weatherston himself, a man who viewed his own assessment of things as superior to everyone elses, convinced that he could persuade everyone that it was really his victim who was to blame not him for his stabbing her over 200 times, putting himself on the stand - I think it is highly plausible that in this case it was Weatherston who drove the provocation route, not his lawyer.

    You are right though that Weatherston is a nice palatable flag to fly for those whose real agenda for wanting to change the law is something else entirely.

  5. I tend to agree though I'd be happy with entire broadcasts of the trial being made available on court reporting websites.

    I support the principle of openess because I support the freedom to seek, receive and impart information (freedom of expression/speech); however, media soundbites cannot do justice to the complexities of a case, the number of times I read a reported decision and cannot marry up the media reports on the same case is alarming and I am not alone in that assessment.

  6. I totally agree that this is the anti-smacking argument all over again - hence why I linked to my critique of that argument as a related post.

    I enjoyed your blog piece on this subject and Stephen Franks' pieces are, predictably, very good too, it is just a shame there are so few of us on the same page on this one.

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    <p><span>I wonder about the sincerity of the politicians who what to change the law so no one can be found guilty of a lesser crime than murder on the grounds of diminished responsibility.<span>  </span>Using that logic the crime of infanticide should be wiped off the books and anyone male or female even if pregnant who kills a child under ten should not be able to get off with infanticide which carries a maximum penalty of three years.<span>  </span>The law make no sense.<span>  </span>If the woman’s mental state partially excuses the killing of a child why should if not also apply if the victim is an adult.</span>
    <p><span> </span>
    <p><span>If any law is past its use by date it is infanticide.<span>  </span>Do you think any political party would support getting rid of this law – not likely?<span>  </span>You do not have to be a rocket science to work out why not.<span>  </span>They have no principle other than getting re-elected.<span>  </span></span>

  8. Excellent point Chuck. I had not thought of that but you are absolutely correct.

  9. Thanks Madeleine.  Sorry about the formatting.  I do not know the casue.  Would you be able to edit the rubbish please. 


  10. I cannot edit comments, JS Kit won't let me unless we upgrade to Pro but I am pretty sure it is cause by copying and pasting from word into a Firefox browser. (unless you didn't do that).

    To avoid the problem paste into notepad or wordpad first to strip the invisible formatting then copy it from there and paste it.

    As soon as we move to Wordpress these commenting issues will be over.

  11. Yes Chuck also one wonders how this coheres with the demand for hate crimes legislation which suggests that the absence of mental attitudes makes ones crime a lesser crime while the presence of these attitudes make it a hate crime.  Its also interesting that the same groups often advocate both, its hard to know what to make of this.


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