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Lawyers in court - Source: ONE News -
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The government is moving to prevent anyone else using the defence of provocation after the controversial trial of Clayton Weatherston who claimed he was provoked into killing Sophie Elliott.
The university tutor said he was driven to stabbing and cutting Elliott 216 times by the emotional pain of their relationship. And he claimed she attacked him with scissors first.
His defence of provocation didn't work with the jury and the Justice Minister says he does not believe it has any place on the statute books.
"It wrongly enables defendants to besmirch the character of victims and effectively reward a lack of self control," says Simon Power.
The partial defence of provocation allows for murder to be downgraded to manslaughter if it is proven the circumstances provoked the offender to lose "the power of self-control of an ordinary person" and essentially "induced him to commit the act of homicide".
It has been used successfully in the past, including when Ferdinand Ambach argued that Ronald Brown's alleged sexual advances drove him into a monstrous rage, prompting him to beat the 69-year-old to death with a banjo.
Labour has long been keen to dump the defence and supports the government's move.
"You're asking a jury to stand in the place of the person who's arguing a set of circumstances that the person they killed cannot respond to," says justice spokeswoman Lianne Dalziel.
Power believes the issue of provocation should be considered by the judge at sentencing but some legal experts believe the defence should be kept until there is broader reform such as bringing in the option of degrees of murder or diminished responsibility.
Steve Bonnar from the Law Society says the organisation's view is that the community represented by juries still has an important part to play in the whole murder/manslaughter issue, "rather than the whole question of provocation being an issue between lawyers and judges".
There are also questions about the timing of this decision but some say that given the concerns raised in the Elliott case, now is exactly the right time for change.
"Nothing is going to bring them back, but at least they did not die in vain," says Dalziel.
The government is also signalling a major shake-up in the way courts hear criminal cases around sexual offending. Power is proposing that sexual crime trials be held under an inquisitorial approach, rather then the current adversarial method.
He says he is considering other far reaching reforms like making a victim's previous sexual history inadmissible without the consent of a judge, and introducing a positive definition of consent. Power says victims being confronted with personal questions about their past behaviour without notice is not acceptable.
He says it's time the country had an open debate about the way such cases are conducted.
Add a Comment:
Post new commentrobert gregory said on 2009-07-23 @ 18:44 NZDT: Report abusive post
I don't agree with it being scrapped. It has its place for defense. If people don't like it cause the victims name is slurred, then think of it this way, the only people that need to hear the defense is the jury, the media don't need to report it, perhaps thats the real problem
honeterire said on 2009-07-23 @ 18:20 NZDT: Report abusive post
from 'TRAVERSE CAUTIOUSLY' People should think carefully before making knee-jerk reactions to change the law re. Provocation. The process of the Law must prevail
Mieleke said on 2009-07-23 @ 17:52 NZDT: Report abusive post
Disagree completely. Provocation should be at least a mitigating circumstance. After all, if you provoke a police officer he'll be quite happy to shoot you dead and get away with it.