Wednesday, 22 July 2009

clayton weatherston found guilty of murder

all i can say is thank goodness. both for the fact that the jury has come out with the correct verdict, and for the fact that this awful trial is now over. that doesn't mean the media coverage will be over any time soon. there's still the sentencing to come after all, and the judge has asked for some kind of report.

there will no doubt be in-depths interviews, with family members if they can get them, and with experts (and non-experts) of various kinds if they can't. it don't expect that sophie elliot's rights to privacy will be respected in any way.

the bigger issue though is some serious lobbying to get rid of the provocation defence. it needs to go. not that it will stop victim-blaming defences, but hopefully it will stop some trials like this.

one thing i think also needs to be looked at is the fact that the victim-blaming defence has no requirements in terms of burdens of proof. so, for example, in the "banjo killer" case, the defence alleged a criminal act on the part of the victim (from what i understand), being some kind of attempted rape. but the defence did not have to meet any burden of proof requirement in alleging such. similarly in the sophie elliot case: allegations were made, with no burden of proof requirement. all that it required is to create reasonable doubt in terms of the crime the defendant has committed.

i'm wondering if that also needs to be looked at as well.

8 comments:

Hugh said...

Presumably the fact that the defenses you've mentioned weren't successful means that some sort of burden of proof was required to be met, and wasn't.

Or do you mean that they should have to meet a burden of proof to be able to mount the defense?

stargazer said...

yeah, i'm no expert in criminal law but i'm pretty sure i mean the second. and i don't think that burden would have to be as high as beyond reasonable doubt - the balance of probabilities thing would be sufficient.

Hugh said...

Interesting idea, and I agree that it would need to be acknowledged that there will be some cases where it is appropriate to be allowed to employ the defense even if the defense isn't credible.

However... quite apart from anything else, there would have to essentially be a trial before the actual trial to determine the grounds on which the 'real' trial (eg the one determining guilt or innocence) can proceed and which defenses are permitted to be used.

stargazer said...

don't judges get to make decisions about what evidence can be admitted? or have i watched too many american legal dramas? if that's the case, surely a judge can make an assessment without a full-scale trial?

i don't know, i just think it's a possibility that should be considered to see if it could work. i don't see why any allegations against the victim can be publicly put forward without any burden of proof.

Deborah said...

I feel a huge sense of relief about this verdict too.

Hugh said...

Well, a judge can rule a piece of evidence is or isn't admissable, but they usually hear arguments from both sides before making that decision, and it's done as part of the trial, not as a precursor to it. Pre-trial hearings exist but they usually cover semi-administrative things like bial, venue, timing etc.

The spectacle of a judge informing a defendant that they are not permitted to extend certain arguments in their defense would not be a comforting one to me. The comparison may be somewhat hysterical, but this is basically what happened during show trials in the USSR in the 1930s, and for similar reasons too - it was felt that allowing defendants to extend certain arguments would be prejudicial to the education of the populace.

stargazer said...

well, we aren't living in the USSR in the 1930's, and i don't think it's fair to use a repressive regime that used a multitude of tools as a reason to not even consider this.

i talked to someone with legal expertise last night, and she said that instead of balance of probabilities, a lower threshhold of having a justifiable case (i think that was the wording) would probably be quite practical for a judge to rule on, and quite in line with the kind of judgements they already make around allowing evidence to be presented. this could be done pre-trial.

Hugh said...

I'm a bit annoyed that you're saying I'm refusing to consider it, when I think what I've actually done is considered it and rejected it as too problematic.