Friday, November 27, 2009

Defense of provocation is gone.

28 Nov.
The police and crown prosecutors are persuing an agenda of seeking the removal of motive from the equation of criminality. Politicians of all persuasions are easily swayed into this reductionist viewpoint by the promise of cheaper legal proceedings and a higher conviction rate.

The Crown vs Weatherston case, which has been used as a trojan horse for the removal of the defense of provocation, has in fact demonstrated that the defense of provocation was NOT an easy way out for a criminal. A defense counsel has the right to enter a not guilty plea and a duty to argue the case for the defense as best they can. The outcome is for the jury to decide. No-one can doubt that in this case the jury did their duty.

Motive is the very essence of criminality. To remove motive from the equation and to find guilt based solely on the forensics, a smoking gun and a dead body will lead incrementally to the obsolescence of trials by jury as no judgement call will need to be made. Another short step on the road to a bureaucratic and police state.

I believe that the Ellis Family were primed/groomed by the police and/or prosecution to bring, by their statements, the defense of provocation into disrepute. I believe they have been cynically manipulated by a bureaucratic elite who waited for the opportunity of an emotive case (pretty young woman killed by nerdy academic misfit) upon which to fly their flag.

When, at some future date, a battered woman kills her abusive partner and a jury is left with no option but to find her guilty of murder, then the chickens will surely come home to roost. Remember, the defense of self-defence is only valid as an immediate response to an actual physical attack (abuse can take many other forms). One wonders what would be the outcome? Either the woman is found guilty of murder, or the police or prosecution service refuse to prosecute the case for fear of the fallout from the outcome, or the absurdity of a not guilty verdict followed a rash of copycat slayings. The proper outcome – a defense of provocation with a conviction for manslaughter and more or less leniency in the sentence according to the merits of the case – will not be an option.

Herein lies the thin end of the wedge. Repeal of section 59 of the Crimes Act (removal of the defense of reasonable force with regard to child discipline) was the thinnest end. This latest machination (repeal of section 169) is the newest nail in the coffin of common sense. Coming up in the future will be the removal of the (already severely curtailed) defense of self-defence.

29 Nov

With regards to the gay cases vs provocation in the sense of domestic violence, street brawls and so-on there is a huge difference. The disgust or revulsion that a homophobic or racist person feels in a certain situation is generated in their own mind more or less independently of the actions of the person “provoking” that emotion. i.e. it is a product of prejudice. Whereas in “true” provocation the provocateur is actively trying to cause fear or mental anguish in the provoked person. That should be the “legal test”. If the provocateur succeeds in provoking their victim to the extent that the victim reacts in an irrational way, even if the outcome is fatal, then that should be sufficient defence to allow the conviction to be reduced from murder to manslaughter.

The case of the murderer of the gay man being found guilty of manslaughter following the defense of provocation is clearly a miscarriage of justice and if the above test had been applied it ought not to have happened

I cannot accept that “now that murder is punished the same as manslaughter*” it makes no difference if a person is convicted of murder or manslaughter. A murderer is a murderer for the rest of their life, not just for the duration of their sentence. It is a lifelong stigma and for some people murder is an unforgivable sin. ( *In fact this is not true, as in a conviction for murder, there is a presumption to life imprisonment, which is almost never observed by sentencing judges.)

I cannot agree that an abused woman should have no other option than to plead “not guilty by reason of loss of mental faculty”. This amounts to a nice way of admitting a susceptability to “temporary insanity” and pays no recognition to the fact that the abusive partner set out to cause fear, intimidation and mental anguish to the accused. The lawyer may advise it but it is merely a legally expedient construct that does not actually have to be true to be effective in court. I believe the defense of provocation allows the victim of abuse to come out of the situation without stigmatising opinions regarding their sanity. I think both options should exist for the defendant.

“What about the government wanting to reduce the types of trials that are heard before juries, just so that they can speed things along?” I think it is possible that the thinking behind this is not just speeding things along, but also that there is so much rubbish and politically/economically motivated law coming onto the statutes these days that the government are worried that jurors will rebel. Defendants will stand up in court and say “Yes I did it but I’m not guilty” and the jurors will say “good on ya mate” and find them not guilty. I’m talking about, for example, selling traditional medicinal herbs (Yarrow, Tansy, etc) at the farmer’s market and being prosecuted under some “Theraputic Goods Act” for selling “Restricted Substances”.

“The decision should reside in the sentence imposed by the judge not the jury” -and what makes you think that a judge that allowed, perhaps because of his own homophobia, a defense of provocation to be entered despite the fact that in no way could the situation be regarded as truly provocative as opposed to merely inciting revulsion in a prejudiced person- makes you think that this judge will not continue to exercise the very same prejudice in his sentencing?
The law has been debased by the removal of the mandatory life sentence for murder, now it has been further debased by this tinkering with permissible defense and now it seems that in the face of an intelligent debate that should have taken place a long time ago before this wretched bill went through parliament we are all being told to shut up!
Like so much of modern “democracy”, I dare say the whole thing was sewn up in the corridors of power before it even went to the chamber so no proper debate or committee proceedings have taken place, just a cross-party clamour to be seen to be closing a percieved loophole because a couple of senile judges have embarrassed the political establishment with their prejudice and ineptitude.

1 Dec

I just spent half a day re-reading the Law Commission report. Notwithstanding my general objections to the law change, the following glaring omission sticks out like a sore thumb;

Recommendation of Law Commission:

R2. The Sentencing Establishment Unit SHOULD DRAFT A GUIDELINE addressing departure from section 102 of the Sentencing Act 2002 AS IT OUGHT TO OPERATE IF SECTION 169 OF THE CRIMES ACT 1969 (defense of provocation) WAS REPEALED. The guidance should cover not only the relevance of provocation under section 102, but also the range of other mitigating circumstances that might justify rebuttal of the presumption. PRIORITY SHOULD BE GIVEN TO THIS WORK, with a view to ensuring that a draft guideline is available IN TIME TO INFORM THE VIEWS OF THOSE CONSIDERING OUR RECOMMENDATION for repeal.

So the Law Commission saw fit to place this second recommendation alongside that for the repeal of section 169 with sufficient gravity to use terms such as OUGHT and SHOULD, rather than “could” or “may” indicating that they see the sentencing guidelines as vital to the proper interpretation of the law as amended. BUT parliament saw fit to adopt the first recommendation without the second. Of course we can understand the National Party persuing this approach. They don’t like sentencing guidelines on principal as they wish the judiciary to have a free hand to dispense a different level of sentence to “their” class of people as opposed to “our” class of people.

This surely would have been worth a fight over, even if it meant Labour attempting to align with the apalling ACT party and the treacherous MAORI party and the despised GREENS. When will the Parliamentary Labour Party get it into their heads that they are meant to be “Her Majesties Opposition” and it is their duty to OPPOSE. It rather negates their vehement advocacy for the Law Commissioners report that they are only prepared to stick up for half of the commissioners recommendations. The public would in the end give them a lot more Kudos for engaging battle with the Nats than for hitching a ride on the populist bandwagon out of fear of not supporting this emotively hyped law change . After all, the maximum sentence for manslaughter is life the same as for murder (apparently the stigma of being branded a murderer is of no consequence) so the whole issue has only been about not giving defendents the platform to say nasty things about their victims in court. Am I right?

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