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Justice, provocation, and the media

Written By: - Date published: 9:30 am, July 23rd, 2009 - 38 comments
Categories: crime, Media - Tags:

Provocation is a partial defence to a charge of murder. It reduces murder to manslaughter if the jury accepts that actions of the victim would have caused a ‘reasonable person’ to lose self-control.

The problem is that it is clearly being abused in some circumstances, like the Weatherston trial, to drag the victim’s name through the mud, often with threadbare or no evidence, on the outside hope it might result in a lighter sentence. In light of the, frankly, outrageous behaviour of Weatherston’s defence team it looks like a political consensus is emerging around getting rid of provocation.

Would that end the practice of putting the victim on trial? I don’t think so. There will still be mileage for the defence in trying to make the victim look bad, even if the charge can’t be reduced to manslaughter a lesser sentence might still result if picture of blameworthiness the can be blurred.

I think the media must accept some responsibility for encouraging the defence to indulge in these attacks on the victim. While the media continues to cover trials in ever greater and more gory detail, the lawyers can go home and see those allegations repeated on the TV and hope to swing public opinion behind the accused, which might just influence the jury.

The media has been a pig wallowing in the mud thrown by defence teams using provocation. It’s disgusting, it debases justice, and it encourages defence teams to attack the victim on even the most spurious and insulting grounds. It’s got to stop.


38 comments on “Justice, provocation, and the media”

  1. So Bored 1

    The Bain and Weatherston trials are what this blog describes as “crime porn”. In the latter case two families who had suffered greivous loss (victim dead and offender locked away) had not only to sit through the evidence as presented but had then to see it broadcast into everybodies living room. The media hovered like vampires and sucked dry every sensational titbit it could turning this into the ultimate reality TV show.

    One can only feel total sympathy for the families for the extra distress the media circus created, and for a victim who was defamed by the defense in the public arena, besmirching her memory. One can only hold the media in total contempt and disgust, get the cameras out of the courts.

    Another insult is the political knee jerk by the Minister of Justice to overturn the “provocation” defense on the basis of this case. Political grandstanding, also contemptible.

  2. I do not want to be considered as defending Weatherston. I think the jury’s decision was completely appropriate and if anything vindicates the retention of provocation as a possible defence. But I think the debate about the “defence” of provocation is missing some important features of the “defence”.

    One feature that is missing is that a murder conviction results pretty well in all cases in life imprisonment. If there was discretion and mitigating matters could be taken into account then guilty pleas would be more likely. As it is the defendant has pretty well nothing to lose by going to trial. There is a chance they may strike a rogue jury and be convicted of a reduced charge. For other offences an early guilty plea can result in the reduction of a sentence by up to a third. Those charged with murder do not have this possibility.

    The other feature is that a finding of provocation results in a conviction of manslaughter. The penalty can be up to life imprisonment but there is judicial discretion. Even if Weatherston was successful I suspect he would have been hammered on sentence given the circumstances of the offending.

    I agree the media has wallowed in these latest cases.

    The debate should not be a simple one of should provocation be retained. It should be about appropriate sentences when an intentional act causes someone to lose their life.

  3. ghostwhowalks 3

    I remember sitting part way through a multiple murder trial about 12 years ago. It seems to me all the details of murder are revolting and in this situation a person probably the father of one of the victims walked out. It was stomach churning stuff.
    Then of course a dry written account would have appeared in the newspaper.

    What the TV news is trying to do is appear more the drama/ quizz shows that surround it.
    Is it the news or Sensing Murder or CSI or who has walked away with a big prize or lost it all ?

  4. Lew 4

    Marty, I’d argue (well, I have) that the media were performing their proper function of facilitating public scrutiny of the justice system and its workings. It’s because of the coverage in the Weatherston case, not because of the verdict, that provocation is likely to be abolished as a defence. Previous cases which were not so graphic, not so clearly polarised, have not resulted in widespread impetus for change.

    The ‘crime porn’ of the trial, while harrowing for the Elliot family and a terrible smear on Sophie’s character, is not entirely without benefit. Society will be the better for having seen it, judged it, decided that it was not just, and changed its norms to exclude it.

    The system works.


    • Maynard J 4.1

      They could have reported on how the provocation defence was being used, instead of reporting the gory and seedy details in labourious and sensationalised detail. If that is the system working, then it could do with some improvement.

      • Bill 4.1.1

        Agree that if there had been substantive reporting on mechanics of the defence…analytical, thoughtful reporting…then, but hang on. We’re talking about NZ media here. Not going to happen.

        Must remember that we are not meant to engage in a meaningful fashion; that we are not meant to form independent and intelligent opinions; that we must be safeguarded from information that might encourage the forming of intelligent and independent opinion.

        Seems some need to be reminded that thoughtful, independent opinions make for dangerous individuals.

        So give us vacuous sensationalism or sweet sickly sentimentality. Keep us safe beneath an umbrella of dubious entertainment and infotainment. Let our opinions be led by those who are better than us, by those with the professionalism and intelligence to be trusted with anything other than watery swill.

    • So Bored 4.2


      Your logic reminds me of the Stalin line of you cant make an omelette without cracking eggs.

      If pain is what causes the system to work we are in a bad way.

      • Lew 4.2.1


        Well, ignoring for a moment that you can’t, the point is that society needs to choose: do we prefer occasional exploitative coverage of ugly, unjust crime cases in the media, or do we prefer systems which are unjust and ugly, but which never change because nobody is aware of how unjust and ugly they are?

        I know which I prefer. It seems from their public comments that Ronald Brown’s family and the Elliot family know which they prefer as well.


        • So Bored

          You are assuming that putting this into the medias hands for distribution to the public domain is of any value in framing debate. I doubt that media sensationalism is. You are right that we must not be shielded from the ugly bits, the question is how we air them.

          • Lew

            SB, I’m not assuming. I do this for a living.

            There is no other agency which could have transmitted the necessary information to the public for discussion and debate – the courts can’t; the government shouldn’t; the lobby groups and PR teams can’t function without the media. How else are the public to get the information, and how else are the politicians to take their cues from the public?

            How we air this sort of information is a trickier question, and, is likewise a matter to be left to the media (and proto-media such as blogs). Their job is broadly “to give citizens the information they need to be free and self-governing.” They frequently fall short of the ideal, but in this case they have fulfilled the task admirably, and in most cases, the more information available, the better the public is equipped for that task.


        • T

          What about live written coverage, and delayed (until prosecution and defense have completed presenting their case) visual coverage?

          • Lew

            T, all you’re talking about is format-shifting. Without compelling video coverage there emerges reconstructions, dramatised serialisation, salaciously-edited transcripts and artists’ impressions. The same content and exploitation, with much less informative value and more opportunity for sensationalist editorialisation.

            It is the vérité quality of courtroom coverage which grants it credibility and requires society to consider it with the proper degree of seriousness and gravity.


            • So Bored

              Lew, methinks you as a journalist (I may be assuming that you are) have a greater idea of the importance and utility of the media than I do. As a result of the commercial and political construct of the media I always read in filter mode, the issue of media independence raises its ugly head often.

              I would question that “It is the vérité quality of courtroom coverage which grants it credibility” when it is selective and soundclip style.

              Fortunately the public dissemination of information and resulting debate is something the media does not have a monopoly on. It never ceases to amaze me that the media think that they have a monopoly on our ears and eyes, and that they ARE the story.

            • Lew


              methinks you as a journalist (I may be assuming that you are) have a greater idea of the importance and utility of the media than I do.

              I’m not a journalist, I’m a media analyst. My sense of the importance and utility of the media comes not from being a part of it, but by spending a very great deal of my time looking at how media coverage interacts with society and politics.

              As a result of the commercial and political construct of the media I always read in filter mode

              But you still read. You’re not outside the loop; you’re part of it.

              I would question that “It is the vérité quality of courtroom coverage which grants it credibility’ when it is selective and soundclip style.

              I’m not arguing that vérité is automagically credible or objective – I’m saying that, all else being equal, it is the most objective, unfiltered source of information. Yes, sound-bites and selective editing and editorialisation are a problem – but they’re more of a problem with other formats. What you ought to be arguing isn’t a ban on vérité, it’s a ban on poor journalism. Good luck with that.

              Fortunately the public dissemination of information and resulting debate is something the media does not have a monopoly on.

              Name one fact about the Weatherston trial which wasn’t first transmitted by the media. Try to do the same for a few other prominent public events of recent times. If you weren’t there, or you don’t personally know someone who was there, chances are you can’t.

              Now try and explain to me how the media don’t have a monopoly on public information.


  5. Brickley Paiste 5

    Media are plural. The media CONTINUE to cover trials in ever greater and more gory detail and HAVE been a pig wallowing in the mud thrown by defence teams using provocation.

    • Bright Red 5.1

      while media is the plural of medium, in modern english usage, we also use media to refer to the group of organisations that use various broadcasting systems (or media) to relate news and information to the public – ‘the media’. That’s a singular, like ‘the army’

      “In the 1920s media began to appear as a singular collective noun, sometimes with the plural medias. This singular use is now common in the fields of mass communication and advertising, but it is not frequently found outside them: The media is (or are) not antibusiness” http://dictionary.reference.com/browse/media

  6. Maynard J 6

    Point the first:

    For all the beat-up about “victims’ rights” from the right (lately, think about the reaction to Elias’ comments that it may not be good for victims of crime to be centre stage in courts – actually really ponder that for a second) there has been a lot of silence over the issue in this case and in the other prominent cases where provocation has been used.

    Would have been nice to see Garrett say something constructive for a change, but since him and his SST cohorts have chosen to stay silent they have just reinforced the obvious conclusion – they do not give a shit about victims, they are only trying to politicise the issue. They are always so damn reticent when there is no anti-left mileage to be made. Scum.

    Point the second:

    It is a difficult issue to try and combat – self-defence is a fairly limited defence, and if there is a good legal reason for provocation as a defence or a mitigant, then we cannot call for its removal simply because we do not like how it is being used. I was talking to Anita and Lew about this on kiwipolitico – they were using the cases where it becomes a defence for killing homosexuals.

    Just because we do not like the specific outcomes, the application of the law, does not mean the law is flawed. I am not sure that is the right argument.

    On the news last night, someone mentioned that the legal test was that if an action would have caused a normal person to react as the defendant did, then provocation can be proven (as per the blog post).

    The question to me is “would a normal person ever be provoked into killing someone” – and remember, self defence applies if there is a direct physical threat, so provocation must be non-life threatening situations by definition. So if that legal description of provocation is in fact accurate, I think that is the real flaw in the defence, from a legal standpoint.

    Point the third:

    The media’s exploitation of the defence is another story. When someone cannot defend their actions because they have been killed by the very person accusing them of provocative actions, and the media broadcasts that, how are they meeting their obligation to be balanced? By definition they can not. And they should bloody well choose not to publicise such an unbalanced view. Also scum.

    phew. ranting.

  7. One further comment:

    “In light of the, frankly, outrageous behaviour of Weatherston’s defence team it looks like a political consensus is emerging around getting rid of provocation.”

    I suspect the defence lawyers hated having to do what they did and I thought I saw signs of Ablett-Kerr trying to tone things down.

    They were doing a job on instructions from their client. His world view clearly prevented him from accepting blame and no doubt the lawyers had written instructions to run it the way they did.

    The way that self defence was only half heartedly run to me spoke volumes about the defence team’s view of the merits.

    I thought they did their job. In a civilised society lawyers have to be allowed to do so.

    • bill brown 7.1

      Ah, the good old “I was only following orders” excuse.

      • mickysavage 7.1.1

        The day lawyers stop defending their clients and start publicly condemning them is the day we should all be very afraid of.

        • bill brown

          A decent person, lawyer or not, would have refused to be the mouthpiece for this guy’s attempt to drag his victim through the mud.

          • Bright Red

            I wouldn’t go that far. People have a right to a competent defence but lawyers are also officers of the court, and they shouldn’t do ‘whatever it takes’ to try to get their clients off

      • Maynard J 7.1.2

        His lawyers were doing nothing unlawful, and while we question the morality of the defence, not having a defence as the defendant chooses is a greater moral hazard.

        • bill brown

          Just because you’re not being unlawful, doesn’t mean you should go ahead and do something that isn’t right anyway.

          • Maynard J

            Yes, and not defending a defendant to the full extent of the law, as the defendant has requested, is far worse than the use of the provocation defence. Basically it would be more wrong to refuse to use a defence than it would be to use that defence even defence perceived as wrong.

    • So Bored 7.2

      I have absolutely no problem with the lawyers defense, you are right, it is what they are there to do if we want justice.

      My issue is the pain that this necessarily causes through being spread by the media as “news”. I suspect more likely to drive ratings revenue.

  8. RedLogix 8

    I suspect the defence lawyers hated having to do what they did

    Absolutely. I believe that Weatherstone’s barristers ran totally the wrong defence.

    Personally I think that the only mitigating aspect to the case was the probable role that his increased dose of Prozac played. Twice in my life I’ve seen up close and personal the bizzare and frightening effects of this drug. Suddenly, with only the tiniest provocation they suffer a sudden psychotic episode that is both deranged, violent and totally out of character. In many cases they finish up killing themselves.

    Weatherstone is of course a very unlikeable, unstable character, but face it, killing your ex-girlfriend with her mother trying to kick the door down is not a sane act. This guy is highly intelligent, but totally derailed. Something out of the ordinary was going on here.

    And yes, the role of the media has been sickening.

    • Agreed that something out of the ordinary was going on here but obviously there was no diagnosis that allowed insanity to be run as a defence.

      I am absolutely certain that insanity would have been investigated but ruled out.

      There will no doubt be an appeal and this may be one of the grounds.

  9. Ianmac 9

    Verdict correct. Defence used Provocation as allowed by law at the Judge’s discretion. Fine. Lawful.
    But the anguish felt by the world at large is because of the Media exposure.
    Perhaps we are used to those fun TV crime/trial stories which are really pretty sanitised. Real trials involving real violence are awful and gruesome and go on all the time. Perhaps it is right to get the real life and death story, but frankly I would prefer to remain oblivious, a bit like staying away from doctors, policemen, and lawyers.

    • Lew 9.1

      Well, you’re entitled to turn the TV off and not read the papers. Some of us want to know the full extent of what’s wrong with our society so we can change it.


      • Ianmac 9.1.1

        You are right Lew. These days at newstime I soon turn to Prime to watch the Millionaire program. Surely however you would pick your target and apply your energy to things that you can change. Keep the kids in good heart. Stay on the right side of your wife. Help your elderly neighbour. Work to help your Union. Do something helpful towards the next election. No. I wan’t suggesting opting out, just choosy.

  10. To scrap the “provocation” defence is utterly indefensible and a total breach of human rights. Do I think that Weatherston was legit in using the defence?

    I think that he is a psycho and it seems the jury was in agreement with that. He should be in jail for the rest of his life because psycho’s are notoriously difficult to treat but to deny 4 million people the right to use the provocation defence based on the abuse of that defence of one deranged human being is criminal.

    At the risk of being accused of link whoring this is what I think about it.

  11. grumpy 11

    The “defence” of provocation has only been used successfully 4 times.

    Twice in the case of battered women and twice by males claiming unwanted sexual molestation from other males.

    The “defence” only goes as far as allowing murder to be reduced to manslaughter, the maximum penalty for both are the same – life imprisonment.

    In the Weatherston case the jury, quite properly, rejected the argument.

    So what’s the issue.

    • Maynard J 11.1

      You ignore the blog post and virtually every comment, and then ask “So what’s the issue.”?

      Talk about willful ignorance.

  12. One right verdict and one wrong, the media should be ashamed for their support of Bain.

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