Thursday, December 11, 2008

Jury Trials and the Death of a Tagger

Important Update: I am still hoping to find an informed commentary about this case. Was provocation applied by the jury or was it just (wrongly?) put to them? It makes a big difference to my discussion

And in the meantime from NZ's most popular blog, Kiwiblog: "I tend to think the jury got it right with manslaughter. A life sentence for murder would be too much, but neither should there be no consquence for the fact his actions killed a 15 year old tagger. Taggers are scum, but being a tagger should result in a fine, not death."

...are stupid kids really scum? Are we all scum?

..

Crikey, don't know what to think about this one. Have just seen on Stuff, that Bruce Emery has been found guilty of manslaughter for the death of Pihema Clifford Cameron. Now trials by jury are a principle that I have the deepest respect for as a fundamental part of our court system and I am reluctant to double guess a panel of fellow citizens who have the complete information that we don't. I hope more information comes out on this though as how a person can chase down someone for quite a distance with a knife and then stab them and not be guilty of murder needs to be very carefully explained.

This case has racial and societal undertones that need to be discussed.

I am hazy on the law of "provocation", but will be keeping an eye out for good commentaries that enlighten me and will edit this blog as I find them.

update:

newstalkzb: So it was the judge that gave the jury the option of "provocation" not Emery's defense, and Emery may appeal on these grounds it seems. And it seems the "chase" fact is contested.

the herald: The Herald says Emery chased him 300metres and suggest the key point is whether Emery stabbed Cameron or the latter walked into it.

"The knife that killed Pihema had a 14cm blade but a pathologist found it penetrated him only 5cm.

"It's more probable the deceased hasn't seen the knife and he's walked into it," Mr Comeskey said. "The pathologist said the knife went in 5cm, so it can't have been caused by a thrust."

He said if jurors had reasonable doubt whether Emery put the knife into the teen they had to acquit him."

Law Commission Report on Provocation: This report gives a good background on the defense of provocation, first the statute:

169 Provocation

(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2) Anything done or said may be provocation if—

(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b) I t did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.

second the authority:

The leading authority in New Zealand is R v Rongonui [2000] 2 NZLR 385; (2000) 17 CRNZ 310 (CA ), in which the majority took the first approach. Their Honours held that jurors are first to assess the gravity of the provocation (actual or perceived) to the particular defendant, taking into account all of his or her characteristics, on an abstract scale from 1 to 10. Having determined the gravity, they must then decide whether a person with ordinary self-control would have lost that self-control in the face of provocation of such gravity

Interesting the Law Commision suggest that the law is a mess, a view that they say is backed up by the Privvy Council in the decision of Attorney-General for Jersey v Holley, and suggest that the defense should be removed from the legislation and replaced by discretion in sentencing. I conclude that this will be going on for a while.

update:

Interesting older article in Salient. The Salient article discussed the evolution of the partial defense of provocation. The offence was once most commonly used in relation to adultery, eg grieved husband finds wife in bed with someone else kills one of them in rage. There were then a spate of cases where it was used by heterosexual defendants who killed someone after a homosexual advance, including the infamous "puppetry of the penis" case (hence the gay community supports the abolition of the defense). Now it has been used for a case involving the violation of property.

So we have moved from crimes of passion, to crimes of pride (or hate), to crimes of property. Back when us white fellas were moving here our ancestors were getting executed for crimes of property. We escaped it then, but is that what our society is heading back to now?

update:

good blog on Tumeke that leans the same way I think that I am heading that Emery should probably have got murder, although as pointed out above there may be facts/details that we don't know . A commentor also provides this link to the sensible sentencing trust saying on National Radio that Emery should be released. Who do they think they are? update:

So I was just thinking (very slowly obviously), the fact that the manslaughter verdict is there on the basis of the partial defense of provocation, means that any fact that the victim may have "walked into" the knife is totally irrelevant, doesn't it?

update:

And then there is the rhetoric coming out of Emery's lawyer Chris Comeskey. His logic is staggering. This from www.crime.co.nz:

"Mr Comesky says Bruce Emery's wife is extremely distraught. He says Pihema Cameron is not going to be brought back by any process and he will seek to keep Emery out of prison when he is sentenced on February 13.

"Taking a husband, a father, a businessman, someone who has never been in trouble in his life - one would struggle to see . . . the rationale in simply dumping him into a prison."

The Herald now has more background. Pihema lived with his tetraplegic father, his mother lived in Perth. At the time of his death he was "upset" that his mother had not saved enough for him to join her. He had never been in trouble with the police. I think the Herald is on the right track:

Emery, meanwhile, said he did not know he had killed the boy. He went home, cleaned the knife, and hid it under his mattress. Somebody else called the police.

"I was terrified," Emery said. "I mean, only a week before, the young Indian guy got stabbed at the dairy by a 15-year-old; another Indian dairy owner down the road from us, he got whacked in the head. There are a lot of things down there that don't make the papers."

The angry Emery identified with the stabbing victim - not the knife- wielding assailant.

Law and order groups such as the Sensible Sentencing Trust are usually the first to call for tough sentences for violent criminals, but this time they sided with the middle-aged self-employed upholsterer. Somehow, when the killer is a middle-class businessman, the tables are turned.

And a further article from the Herald with more background on Emery. Including obvious questions over his character.

5 comments:

Ruahines said...

Kia ora Jamie,
I agree there are racist elements at play here, and this guys lawyer is the first to make hay out of Rodney Hide's "Mandate of the people". Pretty scary future. How many knives have you "almost walked into"?
Cheers,
Robb

Jamie said...

Hey Robb,

Not many. Have slipped and cut myself a few times but I didn't die

J

Bob McKerrow said...

The long knives are out for us all at times, but you don't walk into them. Had the 15 year old boy been a middle class Pakeha and the knife man Polynesian and protesting to the tagging of his rusting caravan or garage in South Auckland, it would have been murder. Institutional racism is alive and well in Aotearoa.

Good posting Jamie.

Jamie said...

Bob,

I think its on a comeback mate

It sickens me.

J

Nick said...

re: Sensible Sentencing Trust:

McVicar acts like SST is a large, established & credible conservative organisation. I understand that, in reality, SST is a couple of swinging dicks with a fax machine.

The only reason they get any play at all is that they're adept at supplying timely & sensational news content to journalists who are either too lazy or too stressed to engage in the act of journalism.

Emery is the poster boy for SST's bullshit. Why aren't they baying for his blood in their customary manner? Why aren't our news media calling them out? Anyway, enough about them.

Great post Jamie. The whole matter is sickening.