Home > justice, law, media, murder > >On the provocation defence

>On the provocation defence

>For those outside New Zealand there has recently been a widely publicised trial on the murder of Sophie Elliot by Clayton Weatherston. I did not follow this trial, nor did I follow the high profile murder retrial a few months earlier. However it is of course difficult to avoid knowing about it with frequent items in the newspapers and on television.

Weatherston admitted to killing Elliot but went to court in an attempt to have the murder charge downgraded to manslaughter invoking the defence of provocation. This defence was not successful and Weatherston was found guilty of murder.

According to the New Zealand Herald on the defence of provocation:

The defence is covered under section 169 of the Crimes Act 1961.

The provocation defence allows for a killing that would otherwise be classed as murder to be downgraded to manslaughter if it can be proven that the person who caused the death was provoked.

The provocation must have some relation to a characteristic of the offender.

It must cause the offender to lose the power of self-control of an ordinary person and have induced the offender to kill.

I am not certain whether the defence solely applies to verbal/ written provocation, or also physical provocation. I assume both. Though physical provocation may also lead to self defence.

It is important to note that provocation does not remove all culpability, it merely reduces the blame; and also, perhaps, affects sentencing.

There has been a significant amount of controversy following the verdict because the court case allowed Weatherston to reveal a significant amount of private data concerning Elliot. Complaints along the lines of continuing to persecute the family, insult Elliot from the grave, etc.

2 well written responses have been made by Glenn Peoples and Madeleine Flannagan. I just wish to make a variety of comments.

1. Murder is a horrible situation. It is horrible when it happens, it is horrible being reminded of it, it is horrible going through court, it is horrible on the anniversary of the victim’s death. In a broken world we have horror and while we can try and minimise it, it cannot be removed. Decisions about justice must be made on the principles of justice and mercy, not on the basis of preventing bad feelings. Else the law will become unjust and cause more, and even worse horror.

2. The provocation defence was not successful in this instance. Thus the law worked correctly. It is questionable that people consider changing the law based on a wrong case outcome, but to change it after a correct conviction?

3. Evil people do evil. They try and misuse the law to their advantage, they lie, they murder. Law changes do not affect evil men, they disregard them anyway. Removing this defence will not prevent evil people being evil, but it will damage those less evil. It will prevent legitimate provocation from being taken into account. It will also mean that criminals will falsely use other defences such as self defence and insanity to get reduced sentences or acquittal.

4. Culpability is not a dichotomous variable. People have partial blame. To disallow the discussion of events around a crime denies that there are considerations that need to be taken into account and can prevent justice being fully accomplished.

5. Much of this debate would be a non-issue if we did not allow the courts to be treated as entertainment. It is true that open courts have their benefits. Perhaps family court should be more open for example. But allowing anyone to attend a court case is a far cry from broadcasting audio or video. People may have a genuine interest in a case, but most people watching from their living rooms would not put in the effort to attend court daily and listen to the arguments. Allowing media into courts means that the case is effectively served up as entertainment, and it allows the media to sway public opinion by what they show and what they leave out.

I think that the courts should probably be open, but disallow the videoing and recording of cases, save what the courts wish to do for their own purposes. Reporting of cases should be forbidden until after the event. I even wonder whether defendants should be routinely given name suppression, as much as practical, with maintenance of this in cases that are successfully defended.

If this had been in place, then many of the things said by Weatherston about Elliot would have not be known by the public.

That being said, as the situation played out, most of New Zealand hold Weatherston in contempt, and probably more so than had the events not been played out in the media.

Categories: justice, law, media, murder
  1. 2009 August 6 at 18:35

    Provocation is one of those things where you can tell that someone is either paranoid or wants license to be a jerk if they are terrified of it. As a rule of thumb, if you mind your own business, avoid being a jerk to others, and don’t physically intimidate others, you’ll never be a victim of premeditated violence. Even most nutjobs and gangbangers will be content to leave you alone if you respect their space and property.
    In fact, “How to not get shot” is a running joke/theme on my blog where I highlight idiots whose acts of provocation earned them their darwin awards.

  2. 2009 August 7 at 05:50

    The issue in this particular case was the murderer (who killed his girlfriend by stabbing her over 200 times) claimed that her previous treatment of him provoked him. Now I did not follow the case so I don’t know what he claimed she said. What seemed likely though was the murderer was completely full of himself. Also the murder was pre-meditated. Thus it seems less likely there was any provocation from the girlfriend, and the jury agreed.

  3. 2009 August 7 at 06:27

    Nicely put. The partial-defence does apply to physical provocation and is not always covered by self-defence. Self-defence covers situations where the use of force is pretty much your only option to protect yourself or another. So if someone throws a punch at you and you have no option but to defend yourself or another, as in you have to fight your way out or something, then it is self-defence provided the force used is proportionate. But if someone throws a punch at you and you could have walked away but they really annoyed you then provocation would kick in if you killed them.
    The Herald also omitted to mention that the provocation must be immediate, there must be no opportunity to cool down. This is why the battered women cases did not fit provocation or self defence. The women whilst being beaten were often passive (the men tended to be stronger so it was a smart move for them to not try to fight back) then the man would calm down and often apologise and there would be a calm period but then things would escalate into violence again. In violent relationships, so the theory goes, this cycle goes around and around. The battered woman waits until there is a calm patch and then kills the man. The threat is not immediate, she could avoid it by other means, so self defence does not apply and the provocation is days or weeks old so it does not apply. Her act looks like pre-meditated murder but of course there is something going on with her mental state that is not going on with other pre-meditated murders. Anyway, sidebar over.

  4. 2009 August 10 at 12:02

    Thanks Madeleine, legal clarification helpful. That would make provocation defence inappropriate for Weatherston also?
    I get frustrated that people seem focused on the actual but lose sight of the potential, and don’t perceive the law of unintended consequences.
    And the result of a patchy legal framework with multiple exceptions and often times contradictory laws, rather than a basic framework of what is right and wrong.
    I would be interested in the legal framework of Alfred the Great (on which the Magna Carta is partially based I believe) if you know anything about him?

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