Editorial: All murders not created equal

Opinion

Tellingly, there was no disagreement between the two psychiatrists called as expert witnesses in the trial of Clayton Weatherston, who was convicted this week of the murder of Sophie Elliott in January last year.

Both saw him as an obsessive narcissist who was not mentally ill when he visited the most brutal and hideous violence on the young woman who had been his girlfriend.

That the former university tutor was a grotesquely conceited individual in danger of drowning in a pool of his own self-regard was obvious to anyone who so much as glimpsed the television coverage of him giving evidence in his own defence. Sickeningly devoid of empathy or remorse, he was plainly a man relishing the attention and the opportunity to besmirch the character of the woman he had murdered.

Plainly he regarded himself - and had comported himself for years - as some sort of stellar academic talent, although the evidence for that is scant. The dux of his high school, he excelled at undergraduate level, but he gained a PhD at the ripe age of 30 and ascended no higher than the role of tutor and research fellow - positions generally occupied by promising postgraduate students barely out of their teens. All in all, his academic achievements, in sharp contrast to those of Sophie, could most charitably described as modest.

The jury that saw through Weatherston and found him guilty of murder has deservedly earned the approval, even gratitude, of the country for a decision that goes some small way to exorcising the horror of his actions, particularly since they would have had to sit through some disturbing forensic evidence.

The case has brought back onto the public agenda the question of whether people charged with murder should be allowed to claim in their own defence that they were provoked. This was the bulwark behind which Weatherston's strategy was erected and there was widespread public unease about the glibness with which he sought to portray Sophie Elliott as a promiscuous and violent control freak.

But we should beware of letting our appalled reaction to the specifics of this case exercise a disproportionate influence on consideration of the wider issue. In the UK, which is the source of our legal system, and Australia, the most comparable jurisdiction to our own, provocation and diminished responsibility both remain potential grounds for defence against a murder charge. That alone may tend to suggest that we should think carefully before ditching the provocation defence.

The Law Commission has, in reports in 2001 and 2007, urged that it be scrapped, describing it as "irretrievably flawed" because its existence legitimises actions committed in anger. And it is often relied on by those who commit hate crimes against gay men; the accused can claim that an improper advance was made and they saw red.

In two high-profile recent cases, this so-called "gay panic" defence has resulted in a manslaughter, rather than a murder conviction. But equally a provocation defence failed Gay Oakes, who poisoned and buried her abusive husband, when her lawyer (Judith Ablett-Kerr, who also represented Weatherston) tried it in 1994.

Those who oppose the removal of the defence argue that it has a high threshold. The provocation must be such that a reasonable person would have acted in the way the accused did, they say, and reasonable people do not usually kill.

There is certainly some merit in that argument. Yet it may be that the degree to which circumstances mitigate the act can be addressed by the sentencing judge, rather than asking juries to navigate legal and psychological minefields. In effect that happens now with the imposition of differentiated mandatory non-parole period.

But any law change that treats all murders as the same regardless of circumstance is fraught with danger. Some may think that the end of the provocation defence would be a fine legacy for Sophie Elliot to have left. But smart as she was, she might also have asked whether all killers are as egregiously deserving of our contempt and the law's harshest treatment as the man who took her life.