Wellington, July 22 NZPA - The jury in the Clayton Weatherston case didn't buy into a defence of provocation, but as a legal issue it's sparking top-level debate and changes could be in store.
Weatherston, 33, was found guilty in the High Court at Christchurch today of murdering his ex-girlfriend Sophie Elliott by stabbing her over 200 times.
His defence had tried to convince the jury he was provoked to the extent of losing control when Ms Elliott allegedly tried to attack him with a pair of scissors following what was a tumultuous relationship.
Ms Elliott's father, Gil Elliott, said after the verdict his family believed the provocation defence was now unnecessary and should be withdrawn.
Similar comments were made after Ferdinand Ambach was found not guilty in Auckland this month of murdering Ronald Brown, 69, but guilty of manslaughter.
His defence argued that Mr Brown came on strongly to Ambach and might have attempted to rape him, leading Ambach to lose control and beat him with a banjo before ramming the stem down his throat.
Justice Minister Simon Power said today he wasn't prepared to comment on the Weatherston verdict, as he was yet to be sentenced, but legal issues presented by the case were topical.
"But more generally, on the issue of provocation, yes it is on my work programme. A substantial amount of work has been done in that area and decisions will be made very shortly," he said.
Prime Minister John Key said the provocation issue was something Cabinet was likely to consider.
The law has split opinions within the legal fraternity, with the Law Commission recommending in a report two years ago that provocation should be removed as a defence for people charged with murder.
While the commission said the partial defence of provocation should be abolished, the Law Society maintains it is an important part of New Zealand's legal framework and should not be repealed, but recognises it comes with problematic side issues.
Auckland lawyer Kit Toogood QC said today provocation had been a defence for a long time and he would be loathe to see any knee-jerk reaction to the Weatherston case.
Mr Toogood told NZPA he wasn't surprised the jury came to the conclusion it did today, but agreed the provocation law was a difficult one.
It was a complicated law for a judge to direct a jury on, and a difficult one for a jury to apply.
"It's got a mixture of objective and subjective elements to it, so it's quite tricky."
Provocation was dealt with in other jurisdictions by having different degrees of murder, which tended to accommodate defences.
Mr Toogood said he believed it would be helpful to simplify the provocation defence, and a judge should possibly have the discretion to take degrees of provocation into account during sentencing -- something the Law Commission is advocating.
"But at the same time such a move would disenfranchise a jury from taking a view as to whether there should be sympathy or not. So it's a very difficult question and not easily resolved."
Mr Toogood said there could be debate as to whether or not provocation law was too complicated, and whether or not juries could be expected to understand it.
"But I do think you have to be very careful about taking away the ability of either a jury or a judge -- or both -- to look at the circumstances and assess the appropriate penalty accordingly.
"My view is that any change in the law needs to be really carefully considered from a very objective and unemotional view point," Mr Toogood said. "Particular cases are not good reasons for changing the law."
Labour Party justice spokeswoman Lianne Dalziel said she would seek permission from Parliament to introduce a member's bill that would abolish the defence of provocation.
Ms Dalziel and Labour's associate justice spokesman Charles Chauvel said in a joint statement it was "an anachronistic relic" and had to be repealed.
If Parliament agrees, the bill they have drafted will go on the order paper for a first reading debate.
If permission is not granted it will go into the ballot of members bills.