Provocation defence 'made killer a victim'

Gil and Lesley Elliott with their two sons outside the High Court yesterday. Photo / Otago Daily Times

The justice system failed Sophie Elliott, allowing her killer to drag her name through the mud before a wide audience, Women's Refuge says.

Outside the Christchurch courthouse yesterday Ms Elliott's father, Gil Elliott, said the provocation defence should no longer be an option.

"We don't like it. It is completely unnecessary and we hope it will be withdrawn now from the statute book.

"I think there are people who will back us on that."

The group's call was echoed by Sensible Sentencing Trust head Garth McVicar, who was in court for the last days of Clayton Weatherston's murder trial.

Lesley Elliott, Sophie's mother, said the country needed to make the decision to drop the provocation defence.

"If that's a legacy that Sophie leaves behind, that's good."

The trust would be pushing hard for the change and the Elliott family would take a central role.

Women's Refuge chief executive Heather Henare said: "Because of the way the defence was run, this trial became a perverse opportunity for a killer to continue to persecute his victim and her family after her death.

"The provocation defence is based on absolutely archaic notions about violence. Once upon a time, society accepted that an affront to male privilege or dignity was a reasonable excuse to fly into a homicidal rage.

"This trial turned justice inside out. The killer became the victim and Sophie Elliott was portrayed to us all as he chose to describe her. Unfortunately for Clayton Weatherston, the jury didn't buy it and nor did the hundreds of thousands of New Zealanders who watched him giggling on television."

Ms Henare said she was "horrified" to hear Ms Elliott's mother described as an unreliable witness and expressed sympathy for her family's ordeal.

"I believe there will be a strong and justifiably angry reaction to the way this trial proceeded. New Zealanders hearing so many of the details and seeing Weatherston taking the stand will have been absolutely dumbfounded that this remorseless killer has had a platform for his justifications and excuses - televised and thoroughly reported by the media."

Justice Minister Simon Power said yesterday he wouldn't comment on the Weatherston verdict, as he was yet to be sentenced, but legal issues presented by the case were topical.

"But more generally, on the issue of provocation, yes it is on my work programme. A substantial amount of work has been done in that area and decisions will be made very shortly."

Prime Minister John Key said the provocation issue was something Cabinet was likely to consider.

* Provocation defence - what it means:

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.

The Law Commission has called for the partial provocation defence to be repealed in 2001 and 2007. The Commission recommended to the former Labour-led Government that the issue of provocation should be dealt with by the judge at sentencing.

The Law Society argued in 2007 that the defence is important in New Zealand's legal framework, given that there is no other ability for the jury to distinguish between degrees of murder, as in the American system.

- NZPA