Ver­dict of an an­gry pub­lic on bad law

Auckland City Harbour News - - News -

It was un­prece­dented – but jus­ti­fied.

For the first time in more than 60 years as a jour­nal­ist I broke what had in that time been an un­break­able rule. I wrote an­gry com­ment on a case which still awaited a ver­dict.

This from some­one who was once re­stricted to an ex­treme by writ­ten laws and un­writ­ten pro­fes­sional rules about si­lence un­til the pe­riod al­lowed for ap­peal had lapsed.

The char­ac­ter as­sas­si­na­tion of So­phie El­liot by her killer, Clay­ton Weather­ston – pro­tected as he was by court pro­cesses and the tac­tics of his coun­sel – prompted me to talk of wide­spread pub­lic anger, of ha­tred and “bru­tal and scar­i­fy­ing at­tempt to de­fend the in­de­fen­si­ble”. I was far from alone. In a let­ter which reached me af­ter that col­umn had gone to press – and also be­fore the ver­dict –

wrote: “How can the New Zealand court sys­tem be so cal­lous and stupid?

“A man, who killed his girl­friend in a truly vi­cious man­ner, tries to trash her good name by re­veal­ing in­ti­mate de­tails of her/and her for­mer part­ner’s sex­ual ac­tiv­i­ties. This is shame­ful. Once again, she is un­able to de­fend her­self, and

there is no one who can chal­lenge this cruel man’s opin­ion.

‘Hav­ing hacked her to death, he ob­vi­ously tried to blacken her char­ac­ter and hoped to con­vince the jury of his own ‘pure’ in­ten­tions.

“The fe­roc­ity with which he butchered her re­veals his pre­med­i­tated in­ten­tion to do so when the op­por­tu­nity arose.

“This poor woman, who dur­ing their time to­gether, was sub­jected to his as­saults but didn’t lay charges, had the in­ti­macy of other re­la­tion­ships laid bare.

“There was no need for this sec­tion of the trial to be made pub­lic, and def­i­nitely no press cov­er­age. It should have been held in a closed court­room with only the judge, ju­rors and other nec­es­sary le­gal peo­ple present.

“She was the vic­tim, but her hideous treat­ment is far worse than a heart­less mur­derer will ever en­dure.

“I am dis­gusted, and hope that most New Zealan­ders share my feel­ings.

“Of the more than 200 cruel, slash­ing, stab wounds in­flicted on the body of this poor woman, the op­por­tu­nity for her killer to speak in this way, is surely the cru­elest cut of all.”

Among other typ­i­cal reader re­ac­tions “Even on the day when Weather­ston was found guilty of mur­der, the noon news cov­er­age of the ver­dict in the bru­tal mur­der of So­phie El­liot again re­peated his com­ments about how he stabbed her.

“We also to­tally agree with your com­ments on Chief Jus­tice Sian Elias’ sug­ges­tions of early pa­role to over­come prison over­crowd­ing.”

The Weather­ston ver­dict brought im­me­di­ate re­sponse of likely and much­needed law change from the Jus­tice Min­is­ter Si­mon Power and the prime min­is­ter.

With a Labour pri­vate mem­ber’s bill al­ready seek­ing the oust­ing of the cur­rent pos­si­ble de­fence of provo­ca­tion which Clay­ton Weather­ston and his se­nior coun­sel ex­ploited to the enth de­gree, the change the pub­lic wants seems cer­tain. How weird then to hear crit­i­cal opin­ions from big names in the le­gal de­fence in­dus­try.

One said out­right that the sug­gested change “en­dan­gered long-es­tab­lished rules of fair trial”.

Th­ese are the same rules which cost So­phie a fair trial, that gave scope for that bizarre and marathon Clay­ton’s de­fence in which he slashed the vic­tim’s rep­u­ta­tion to post­hu­mous shreds on the sole ba­sis of a killer’s fan­tasies and fic­tion.

The other high pro­file ca­reer de­fender sug­gested law changes should be made in an at­mos­phere of calm con­sid­er­a­tion and not sparked by the present un­prece­dented wave of pub­lic emo­tion and anger. The pub­lic doesn’t agree. Court rules and prac­tices which al­lowed Weather­ston’s coun­sel to base a case on an un­ac­cept­able and un­proven premise, to make the vic­tim an ac­cused and to end­lessly pun­ish her griev­ing fam­ily, must be changed.

That is the ver­dict of the jury which is the com­mu­nity.

The law pro­fes­sion, which has wide ex­pe­ri­ence of the sta­tus quo – and could risk per­haps an­other pub­lic re­ac­tion of hav­ing a vested in­ter­est in re­tain­ing it – should hear that judge­ment.

How many sus­pect de­fences do we need?

How many more mem­o­ries of the in­no­cent dead need to be tram­pled on, how many ques­tion­able not guilty ver­dicts, be­fore those in the le­gal pro­fes­sion ac­cept the very pub­lic judge­ment of the com­mu­nity in this case that bad law gave this mur­derer his own pub­lic stage and a star­ring role he seemed to en­joy – without any trace of re­morse.

Risk­ing this col­umn sound­ing like a poor il­le­gal re­la­tion of the New Zealand Law Jour­nal, a let­ter sup­port­ing my crit­i­cism of the dan­gers of bug­ging and tracking pro­vi­sions of the Search and Sur­veil­lance Bill now be­fore Par­lia­ment:

“I took the trou­ble to skim through the bill and want to draw at­ten­tion to the last sec­tion.

“Reg­u­la­tions: The gov­er­nor­may, by or­der in coun­cil, make reg­u­la­tions for any or all of the fol­low­ing pur­poses:

“(a) Pre­scrib­ing the form of an ex­am­i­na­tion or­der, a sur­veil­lance de­vice war­rant, resid­ual war­rant, pro­duc­tion or­der, search war­rant, war­rant au­tho­ris­ing en­try to a dwelling house or marae, or sim­i­lar kinds of war­rants:

“(b) Pre­scrib­ing pro­ce­dures to be fol­lowed for the pur­poses of mak­ing and re­solv­ing claims of priv­i­lege un­der sub­part 4 of part 4:

“(c) Au­tho­ris­ing a chief ex­ec­u­tive to omit from any an­nual; re­port in­for­ma­tion about search or sur­veil­lance gen­er­ally, or of a par­tic­u­lar kind, or in a par­tic­u­lar area, or in an area of a par­tic­u­lar kind.

“The rhetoric which the Right al­ways pro­pounds is for less gov­ern­ment and fewer re­stric­tions. Para­dox­i­cally, this has most ap­peal to those who pro­mote con­trol and en­slave­ment as the best means.”

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