Weatherston trial: Call to abolish provocation defence

The Clayton Weatherston murder case has opened the floodgates on calls to dump the partial defence of provocation.

Weatherston has just been found guilty of murdering Sophie Elliott at her Dunedin home on January 9 last year.

Weatherston had pleaded not guilty to murder on the grounds that he was provoked.

Already, The Press can reveal high level anger at the use of provocation in the Weatherston case.

Elliott's brother Chris said the family had become supporters of a push to abolish any partial defence in a murder case.

"In my view it is a needless legal loophole that provides a defence for otherwise indefensible crimes, and creates enormous stress for victims' families," Elliott told The Press.

Labour MP Charles Chauvel, a former lawyer, said the defence was "despicable" and he was "horrified" by its use in the Weatherston case.

"I'm just one of the many people," he said.

"The suggestion that being taunted led somebody to lashing out and snapping and then stabbing somebody over 200 times, it just doesn't seem to me that that defence ought to be available to anybody to a charge of murder."

Chauvel said Elliott's character had been denigrated in the trial.

Weatherston was the only person who could give and account of what happened when he killed her.

"And then what happens is an exercise where the defence counsel and the killer do their best to denigrate the victim in the eyes of the jury and try to persuade the jury that the victim had it coming," Chauvel said.

"And to me, that is just the ultimate obscenity."

Justice Minister Simon Power said the Government was working on the issue.

"I hope to take a paper to Cabinet in the near future, after Labour failed to implement any changes," Power said.

Law Commission deputy-president Warren Young said there was now a ground-swell of opinion against the partial defence of provocation.

"And I think that's because recent cases that have been in the media have, I think, led to the public perception that there is a bit of a difficulty," Young said.

"It engages in victim-blaming because it actually focuses on the behaviour of the victim at trial," Young said.

Earlier this month 32-year-old Ferdinand Ambach was convicted of the manslaughter of Ronald Brown. Ambach killed Brown after he made sexual advances on him. He beat him with 2.7 kilogram banjo and rammed the broken-off neck of the banjo down his throat.

Last year, Wellington woman Janine Waiwera Rongonui was freed by the parole board after her conviction for murder was overturned and downgraded to manslaughter at a retrial.

Rongonui stabbed her neighbour Pheap Im to death in a frenzied attack in which more than 150 wounds were inflicted, including many to the face.

Rongonui had been suffering anti-social personality disorder, post-traumatic stress disorder and dementia among a catalogue of other ills when the killing happened.

it comes with problematic side issues.

Auckland lawyer Kit Toogood QC said today provocation had been a defence for a long time and he would be loathe to see any knee-jerk reaction to the Weatherston case.

Mr Toogood said he wasn't surprised the jury came to the conclusion it did today, but agreed the provocation law was a difficult one.

It was a complicated law for a judge to direct a jury on, and a difficult one for a jury to apply.

"It's got a mixture of objective and subjective elements to it, so it's quite tricky."

Provocation was dealt with in other jurisdictions by having different degrees of murder, which tended to accommodate defences.

Mr Toogood said he believed it would be helpful to simplify the provocation defence, and a judge should possibly have the discretion to take degrees of provocation into account during sentencing – something the Law Commission is advocating.

"But at the same time such a move would disenfranchise a jury from taking a view as to whether there should be sympathy or not. So it's a very difficult question and not easily resolved."

Mr Toogood said there could be debate as to whether or not provocation law was too complicated, and whether or not juries could be expected to understand it.

"But I do think you have to be very careful about taking away the ability of either a jury or a judge – or both – to look at the circumstances and assess the appropriate penalty accordingly.

"My view is that any change in the law needs to be really carefully considered from a very objective and unemotional view point," Mr Toogood said. "Particular cases are not good reasons for changing the law."

- With NZPA

 

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