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Provocation (2)

  • July 22nd, 2009

Why should provocation be a defence rather than something the judge should take into account in mitigation?

Because self defence is not the only situation where a person is morally justified in using force, even lethal force against someone who has wronged them terribly. Lets consider an example.

If Henk Bouma had been able to free himself to attack Poumako and his henchmen while they were leaving his Reporoa farmhouse no legal system with any respect for normal human emotions should convict him of a wrong. They tied Bouma up, took his wife Beverly to suffer for hours in another room, taunted Henk, then shot her dead.

Self defence would not be available to someone in Henk’s position if he attacked the home invaders as they were leaving, because they were clearly then ending their threat.

If only the facts had played out as proposed in this thought experiment! He would have deserved commendation, not conviction.

Another comment asked why I linked Weatherston’s excuse for killing Sophie with the ‘homosexual advance’ defence. I thought it was obvious. It is the same defence – the argument that the irritation provoked by the victim’s express or implicit insult to the killer justified their subsequent reaction, or drove them into a state in which they should not be held responsibe for their actions.

Often the homosexual advance excuse merges with a self defence claim (‘homosexual panic’). Weatherstone’s excuse tries this trick too, with the ‘scissor attack’ story.

Without solid evidence of reason for panic the law should treat the homosexual advance defence with derision, like Weatherstone’s defence.

[Update – Guilty for Weatherston has saved the law from an explosion of outrage. Instead there is the heightened rumble of discontent.

When it dies down a little provocation can be treated more dispassionately. But whatever emerges, the law must recognise and not consistently affront the consciences and emotions of the ordinary people without whose support it will decay.

The criminal law is the consensus on minimum morality in action. Morality is very interested in questions like – who started it?. What did he/she deserve? We are evolutionarily conditioned to find those matters vital.  If judges apply mumsy rules, like "nothing excuses violence"  or "I dont care who started it, you joined in" they are not judging, The are just applying a rule, which could be done by a computer, or the police, (assuming the evidence is clear).

From this case the judges should take a lesson, and simplify the defence of provocation. It should only relate to what would provoke ordinary reasonable people, not drunks or P addicts or nut cases, or homophobes. The judges should now punish those who turn it into mockery.

From other cases they should accept that ordinary people want the law to distinguish between those who start fights or cause trouble, and those who respond even if their response is "disproportionate".  The criminal should bear the risk of significant  disproportionality in the response to thuggery, rape or robbery , even if common sense says the defence can only go so far.]



It is extraordinary that Weatherstone can have the gall to mount such a defence at all. Surely if he carried a weapon into his victim’s house then he committed premeditated murder.

  • Chuck Bird
  • July 22nd, 2009
  • 2:39 pm

Good on you Stephen. A prerequisite to become a lawyer should be that a person has a degree of common sense. Those lawyers at the Law Commission seem to lack this. They say that no normal person would kill someone except in self-defence no matter the provocation. Your example contradicts this.

What annoys me is that the Court suppresses evidence or restricts the media in case like the Bain case yet allows graphic details of the murder and sexual details of the victim on the six o’clock news.

  • Gabes
  • July 22nd, 2009
  • 7:41 pm

Deserved what he got, I was amazed that a QC would have allowed his arrogance to the court the other lawyers, it almost felt she knew his defence was nothing more than a tissue of very fragile lies that couldn’t stand up to the light of day.

I hope he goes away for a very long time and that his Cellmate(who I will call Bubba)is a controling narcisist with a penchant for anemic weak looking academic.
Seriously though for the Hell he put the family thru I hope that his time in prison is one long nightmare. Especially after what he put his and Sophies Elliots family through.

  • Andrea
  • July 23rd, 2009
  • 12:03 am

He does deserve what he got and then some. He needs to never ever see the light of day after what he has put Sophie Elliott’s family through. He is despicable and disgusting. Of course it was premeditated, he took the knife with him and he knew exactly what he was doing.

  • Jim Maclean
  • July 23rd, 2009
  • 12:06 am

The law has debased itself in allowing this evil man to put his victims family through even more trauma than his violent act in their home caused them. It physically pained me to see him claiming his time to play the wronged victim before the court while his victims family and the general public were forced to remain silent and frustrated at his incredible gall and the outrageous cost to us all that this pantomime took from society. It distresses me that there is no way his eventual sentence will in any way discourage others from “having a punt” in similar circumstances, with a paltry few years added to the already inadequate non-parole period he will recieve. As usual, Stephen puts it more eloquently, if only those with the power to change it were listening!

  • David O'Kane
  • July 24th, 2009
  • 10:25 am

To Chuck, i think ‘good sense’ is what you might have been looking for… StevenF’s post falls into that camp…

“Common sense is the collection of prejudices acquired by age eighteen.” Albert Einstin

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