Clayton Weatherston did not get a fair trial because the media facilitated an attack on the law itself - the defence of provocation - even while he was giving evidence, the Court of Appeal has been told.
Weatherston was sentenced to a minimum 18 years' jail in 2009 after being found guilty of the murder of student Sophie Elliott, 22, in the bedroom of her family's Dunedin home the previous year.
"The trial could not be fair, could not be fair, was not fair, under those circumstances," Weatherston's lawyer Robert Lithgow, QC, said today.
He also said the Crown should not have been able to use the shocking photographs of 22-year-old Sophie Elliott after Weatherston's attack on her in January 2008, in which she suffered more than 200 wounds.
But the main point in the appeal was the way the defence of provocation was being commented on publicly while the lengthy trial continued.
Within months of Weatherston's trial ending with a murder verdict in 2009 the provocation defence - which could reduce murder to manslaughter - was abolished by the Government.
At today's hearing, Elliott's parents sat across the aisle in the front row behind Deputy Solicitor-General Cameron Mander and Crown counsel Madeleine Laracy.
But Weatherston himself was not present or watching via a video link from prison.
WEATHERSTON'S LAWYER SAYS JUDGE GOT IT WRONG
Lithgow began his submissions by saying the essence of the appeal was that it was not possible to have a fair trial when a senior state figure systematically attacked the defence of provocation while Weatherston was giving evidence, and on the same terms as the defence was being run.
It was a very unusual situation where the media facilitated an attack on the law itself, Lithgow said.
Television New Zealand had broadcast an interview on TVNZ 7 on July 10, 2009, with senior Law Commission commissioner Dr Warren Young about the defence of provocation.
It was not until after the interview screened, and remained available to view on the internet, that jurors were told to avoid mainstream media, Lithgow said.
He wanted the interview replayed in court but the three judges - Justice Mark O'Regan, Justice Robert Chambers, and Justice Tony Randerson - had already seen it.
Lithgow said the judge for Weatherston's trial, Justice Judith Potter, did not recognise, or failed to act on, the seriousness of outside condemnation of the provocation defence, which he described as a "tsunami".
She applied the traditional approach of "keep calm and carry on" and backed herself to make it work.
She should have accepted a defence request to stop the trial because of the mainstream "targeted attacks" on the very matter that was before the court, Lithgow said.
Beside Young's television appearance, there was an "unbalanced" Listener article published.
Sensible Sentencing Trust spokesman Garth McVicar had been holding the Listener cover, with a headline about the article on provocation, standing in the courtroom and was asked to stop doing it.
The appeal is continuing.
- The Dominion Post