Friday, 26 June 2009


ok, this just makes me physically ill:

Lesley Elliott is this afternoon being cross-examined by defence counsel Judith Ablett-Kerr.

She has been questioned about aspects of her daughter's past relationships, including a four-year relationship which ended acrimoniously.

Ablett-Kerr suggested Elliott had struck her former boyfriend and scratched him in the face, but Lesley Elliott said she was not aware of that happening.

The defence argues that Weatherston was provoked to kill Elliott. They say Elliott attacked Weatherston with a pair of scissors and that he was provoked by a "torrid and tumultuous" relationship with her.

provoked? provoked into kneeling over her and continuing to repeatedly stab her, even after she was dead? the defence is basically putting forward the notion that sophie elliot was asking to be stabbed to death, and it's absolutely sickening. how can this even be an allowable defence to a murder of this nature? and if he was being provoked, what exactly stopped him from leaving the room, leaving the house, just walking away and ending the relationship, instead of ending her life.

there is something seriously wrong here.


Cat said...

Given the way that she was killed, I'm frankly surprised they haven't tried a 'temporary insanity' defense or something similar...

The whole thing is just horrid.

Anna said...

I'm pleased you've written about this - it's been on my mind, but I couldn't bring myself to do it. Like you, I feel sickened by the whole thing. You'd think the Elliot family had suffered enough. I'm very dubious of the 'provocation' defense at the best of times, but it seems particularly outrageous from a guy who actually took a knife to the house of his victim.

I don't think the provocation defense is going to have any success at all, but that will be cold comfort to Sophie's family. I wish the defense could leave her memory alone, instead of bring up every slight misdemeanour from her whole life in this tawdry way - as if anything she had ever done, or could ever have done, could lessen the responsibility of her attacker.

Anonymous said...

I wouldn't worry to much, it is the desperate defense of a pathetic killer. He'll be sent down for a long time.

ms poinsettia said...

Makes me feel terrible for the Elliott family as well. Like Cat, I wouldn't have been surprised by an insanity defence given the method of killing but I guess he was found sane?

I don't think the jury will buy it, just like Nai Yin Xue and Dean Cameron's offensive defences weren't successful. It's so frustrating that it always seems to come back to victim blaming - it's not fair on the victim or the victims' families who are still grieving.

stargazer said...

that's just what i don't understand about this case. how can her past history be in any relevant? the only issue at stake is whether or not this guy killed her. what kind of person she was, or how her past relationships played out have got nothing to do with this particular incident. to have her history on trial, without her being alive to defend herself just seems so bizarrely wrong and a gross miscarriage of justice for her. she was killed & now she and her family are being further victimised by having her history publicised in this way.

there is something definitely wrong with a system that allows this.

Anna said...

I don't know nuffin about the law, but I noted that the David Bain 111 call was disallowed as evidence by the judge, because it contributed nothing useful to the case and was prejudicial. Why can't some of this irrelevant shite regarding Sophie Elliot (eg the scratching of previous boyfriend) also be disallowed? No reasonable person could think that stuff from her past had any bearing at all on the case that's being tried, surely?

Anonymous said...

While I agree that this line of defense might be upsetting for the Elliot family, I think that the defendant should have the right to pursue in court whatever defense he likes. It would be wrong for the court to say that he could not present his case.

Personally, I don't think that his defense is remotely plausible. And I think that the way that he presents his defense should be a factor for the judge to consider in sentencing. For example if he confessed and/or successfully proved some sort of insanity he could expect some positive consideration in sentencing. Equally, if his defense is based on blaming his victim he should expect some negative consideration in sentencing (if his defense is unsuccessful).

Idiot/Savant said...

I'd been thinking of blogging about this, but decided not to while it was stil before the courts. But it yet another in the long litany of examples (both homophobic and misogynistic) of why provocation has to go.

Keely said...

I really struggle to understand how provocation can be used for what appears to be a premeditated act. I think the sad thing is that some people might actually buy it as a defense. I say this after I ended up repeating down the phone to my mother yesterday, that it doesn't matter what the victim did, it does not make it ok to kill her. By the tme I got off the phone, I felt quite saddened by the need to even have to try and explain what seems a simple fact.
I hope that the sentencing (when it comes) reflects the fact that he dragged the Elliot family through all of this.

Anonymous said...

One of the big problems with the provocation defence is the way it is inconsistently applied in sentencing.

One of the classic examples we learnt about in law school concerned a man who killed his wife because she suggested in front of some customers (they ran a shop) that he may have stolen something.

His provocation defence was successful. He got 9 months' probation. For killing someone deliberately.

On the other hand, a female immigrant to New Zealand who spoke minimal English had been terrorised by her husband. He had threatened to kill her and her family, and was blackmailing her sister. She had tried unsuccessfully to leave him many times, even going to the police, but was not able to receive any help. One night, when he was unconscious after drinking too much, she killed him.

Her defence of provocation was successful (the court did not accept that she was acting in self-defence, which would have meant that she would be acquitted).

But she received upwards of 5 years jail time because of the calculated way in which she killed him (she waited until he was asleep, she used weapons).

The Court did not take into account that it was extremely unlikely that she, a small woman, would be rather unable to kill her much larger husband with her bare hands while he was awake.

So her sentence was much greater because it wasn't the same kind of "act of passion" as the first man who killed his wife with his bare hands while she was still in the shop with him.

Like many of you, I think the provocation defence should go. It has its roots in the "I found my wife in bed with another man and killed her in a jealous rage" line of thinking.

I seriously hope that Ms Elliot's killer is not successful in his defence of provocation.

Anonymous said...

For provocation to be successful:

(1) The accused must have been induced to kill the victim through being deprived by the provocation of the power of self control.

(2) But loss of self control is not enough. The provocation must have been sufficient, in the circumstances of the case, to deprive the hypothetical ordinary person of the power of self control.

So the real questions at issue in this trial are:

(1) Did the guy lose self-control?

(2) Would an ordinary person in the same situation have lost self-control?

The thing that allegedly caused him to lose self-control essentially boils down to her refusal to sleep with him AFTER the relationship was already over.

Anna said...

What would provoke an ordinary person is incredibly fraught - it reflects the biases of the culture that the ordinary person lives in. Eg, if homophobia is normal in your culture, then the idea of a man being 'provoked' to kill another man for making a sexual advance makes sense. And then it becomes something akin to victim-blaming.

The example Anon gives about the man killing his wife for making an embarrassing remark about him is a case in point. If the embarrassing remark was vice versa - eg a bloke made a disparaging remark about his wife's appearance in public - it would be hard for the wife to argue provocation if she then attacked him. We have different ideas about how men and women should behave towards each other, the ability of each sex to control their anger, what makes the different sexes angry, etc. It's really worrying when these prejudices are validated by courts.

portia said...

I think the provocation defence is gradually falling by the wayside, because lately it hasn't seen much success. There have been several recent murder convictions in the states where the defendants tried to argue provocation because the victim was transsexual. The sooner it goes away the better, it's the ultimate form of victim-blaming. The defence is essentially trying to convince the jury that the victim needed killing.

In this case, I don't think it will work. I wonder if the accused insisted on this defence - he seems like that kind of entitled, stage-managing asshole.

Hugh said...

Technically, if provocation doesn't get you acquitted (in the way self defense does) it's not a 'defense', it's merely a mitigating factor.

Psycho Milt said...

Ablett-Kerr must know herself that there isn't a snowball's chance in hell of this defence succeeding (what provocation,ffs?), but if this self-worshipping mediocrity wants to pursue it she doesn't have a lot of choice. It would be nice if the justice system could fence that off in such a way as to prevent accused murderers pissing all over the dignity of the victim and their family, but it's not obvious how you could do that.

Eddie said...

If you want to get really technical, Hugh, provocation is a partial defence, not a mitigating factor or a full defence. What it does is essentially get a murder charge downgraded to manslaughter. That isn't a defence, because it doesn't get you off, but neither is it a mitigating factor, which goes to sentencing (rather than changing the actual offence).

Regardless, by its nature its almost always trotted out when someone has committed an obvious, often incredibly violent and nasty killing (the one at issue, david mcnee, Dr Minute back in the day) as a last ditch attempt to avoid life imprisonment. There's actually a law commission paper floating around out there somewhere at least tentatively advocating for its abolishment.

Trouble said...

Judith Ablett-Kerr unsucccessfully defended Gay Oakes on a charge of murder, pleading provocation. I'd have thought that this case was a much longer shot than that one, unless you want to invent an "entitled bitter violent male" syndrome.

Mel Archer said...

I actually have a feeling that the defence of provocation is likely to have originated with the defendant, rather than Ablett-Kerr, and she as his lawyer, is bound to act upon her clients instructions...? Such a cold, calculated and vicious killing, he has to believe that he was justified in his actions...? Re. manslaughter as a step down from murder, I thought that as sentencing has a wider range of possibilities, he could still get a life sentence?

Chris said...

"I really struggle to understand how provocation can be used for what appears to be a premeditated act. I think the sad thing is that some people might actually buy it as a defense. I say this after I ended up repeating down the phone to my mother yesterday, that it doesn't matter what the victim did, it does not make it ok to kill her. By the tme I got off the phone, I felt quite saddened by the need to even have to try and explain what seems a simple fact."

For parallels one can look at the homosexual panic defense. Put simply, a guy can get murder a gay, and get manslaughter for it because 'he provoked me into doing it'.

This is a legal defense in law.

So I imagine that the provocation defense is being used here to reduce the charge from murder to 'whoops, sorry, I accidentally killed her' (wo)man-slaughter.

the sooner the law is rid of this pathetic defense (which was enacted by scared straight white males), the better.

Frankie said...

Thanks for blogging on this. I too have found this case extremely disturbing and horrifying.

The arrogance of this line of defense is staggering. He went round too her house. With a knife. He stabbed her more than 200 times and mutilated her, including specifically sexual mutilation.

This is justified in which circumstance, exactly? I'm sorry, there is no possible way that ANY provocation justifies this horrific woman-hating crime.

I have great admiration for Leslie Elliot's bravery and I hope her evidence leads to Weatherston getting what he deserves and going away for a long, long time.

A Nonny Moose said...

There's still this ridiculous notion of "eye for an eye" in our supposedly intelligent society. If that were so, any intelligent juror will see that the odd angry slap or word does NOT justify 214 stabs.

"Oh, I'm sorry, she stabbed me 213 times, so I gave her 213 plus one extra back". Ya huh. :/

Thanks for saying something. I was thinking it too.