Moko, 3, did not provoke his killer
When Clayton Weatherston sat straight-faced in the High Court in Dunedin, and argued he should be acquitted of murder because his girlfriend Sophie Elliott ‘‘provoked’’ him into stabbing her 216 times, a nation gagged.
He was provoked by ‘‘the emotional pain that she has caused me over the past year’’, he whimpered, pathetically unable to take responsibility for his actions.
The jury didn’t buy it, the judge didn’t buy it, the public didn’t buy it, and Parliament didn’t buy it. Simon Power, the justice minister then, said the defence of provocation ‘‘wrongly enables defendants to besmirch the character of victims, and effectively rewards a lack of self-control’’.
Provocation was a defence used by the lowest of killers, to downgrade murder charges to manslaughter. The few occasions on which it has been successful, it was not only the reputation of the victim that was grievously besmirched, but the very integrity of New Zealand’s jury trials.
Indeed, the last successful use of the defence was by Ferdinand Ambach, who got away with the murder of Ronald Brown, 69, by arguing Brown came on to him strongly, leading Ambach to lose control and beat him with a banjo before ramming it down his throat.
The defence of provocation was abolished only seven years ago, yet already it seems as anachronistic as the days when one could get off dangerous-driving charges by arguing you were drunk and couldn’t be held responsible.
Last month, provocation was no longer available to Tania Shailer and David Haerewa as they tried to wriggle out of responsibility for the death of 3-year-old Moko Rangitoheriri. Instead, they got the Solicitor-General to downgrade their charges to manslaughter. Yes, they hit, kicked, threw, bit, stomped on and smothered the boy’s tiny body, but they never meant him to die, they insisted.
And they’re not finished. To Moko’s family’s grief and anger, Shailer is appealing for a more lenient prison term – essentially arguing she was provoked to brutality by the behaviour of a 3-year-old boy.
But didn’t New Zealand abolish the provocation defence?
The difference, this time, is Shailer isn’t trying to get away with murder – she’s already done that. Now, she’s arguing Moko’s bad behaviour should be a mitigating factor in her sentencing.
To be fair, her defence lawyer was careful to say that in highlighting Moko’s bad behaviour, he was simply trying to determine Shailer’s culpability, ’’and not to seek to blame Moko’’. But when he goes on to say Shailer’s actions were, in part, a result of Moko’s bad behaviour, it seems we are seeing anew the loathsome defence of provocation.
There are two people who are wholly to blame for Moko’s death. Tania Shailer and David Haerewa, do not go looking for excuses. Do your time.
There is one person who cannot carry any responsibility at all. He was just a 3-year-old child with a mischievous smile who should have had a life of joy and love ahead of him.
He was Moko Rangitoheriri.