Sophie’s Legacy

by Lesley Elliot

  A good example which epitomises the plight of victims was when one particular adjournment was called for. When the court goes into chambers (the lawyers and judge meeting in private), there is usually some indication as to what will be discussed. This time, however, that was uncertain. When the judge left her bench, the court rose and we were left standing in confusion. The Crown prosecutors scurried from the courtroom and I remember Greg King from the defence team turning and seeing the bewilderment on our faces. He generously approached and told us what was going on. But that shouldn’t happen. It need not happen. Families of the victim should be kept informed.

  It would have been so much easier if Weatherston had pleaded guilty and saved us 18 months of anguish. The long wait for justice, the frequent delays, giving and hearing harrowing evidence, and the whole drama of a court case is taxing. If it brought me any sense of satisfaction, it was being able to give my evidence in front of Sophie’s killer so he would hear everything I had to say. Whether it had any effect on him is inconsequential. Hard as it was I never resiled from any of it. I did it with my head held high. I did it for Sophie.

  7

  the criminal justice system

  by william j o’brien—

  Although Sophie’s Legacy is Sophie’s story, told by Lesley, we agreed that I should write this chapter. Depending on what side of the fence you are standing, the view of the ‘system’ differs markedly. Victims generally feel, often with justification, that everything is being done to help the offender, whose rights seem to override those of the victims. A defence team usually regards the system as balanced more towards the Crown, which has massive resources to bring about a prosecution.

  The police, Environmental and Scientific Research (ESR) scientists, seemingly unlimited financial resources and the like are certainly advantageous for the Crown. But that does not mean a defendant is greatly disadvantaged and certainly not to the degree some might claim. This is a state of affairs which is frequently commented upon by defence counsel in their closing addresses to juries, referred to as an ‘inequality of arms’. While it is true that the Crown has access to forensic expertise, it needs to be remembered that criminal investigations are the function of the police. Their role is to examine the evidence and use experts to analyse and interpret that evidence. The police have their own experts in photography, fingerprints, electronic crime laboratories etc and can call upon external agencies such as ESR and other ad hoc agencies such as universities, private laboratories and the like. What is less well known is that generally the Crown must obtain prior approval from the Ministry of Justice to engage an expert at trial. Unlike the defence, the experts engaged by the Crown are limited in how much they are able to charge. The maximum amount payable is currently $198 per hour (exclusive of GST) which is the equivalent of the Crown’s senior hourly counsel rate. A number of experts are not prepared to give evidence for the Crown for what they regard as a modest, if not insulting, stipend.

  Perhaps even more difficult to accept from a victim’s point of view is the way the Crown takes over, virtually leaving close family members of the victims unable to influence any part of the process. Because it has ‘not been done before’ or is ‘not the usual practice’ doesn’t mean that victims shouldn’t have a greater input. After all, it is the Elliotts’ daughter who was murdered, not the Crown’s.

  In the Weatherston trial Lesley and Gil faced many frustrations. Lesley did, however, have a lot of time and respect for Justice Judith Potter:

  I thought Justice Potter was good and handled a grotesque trial very well. Her summing-up was excellent, but I felt terribly let down by the sentencing. I’m not a vindictive person, but an 18-year non-parole sentence was insufficient to reflect the gravity of this crime. The Crown would have been happy with 19 years so when Weatherston was given a one-year reduction for being a first offender, the Crown probably thought it wasn’t worth appealing over. Personally I believe 25 years minimum would have better reflected what he did to Sophie, but as her mother I don’t get any say at all. The only way I can exert any influence is through a victim impact statement. Clayton Weatherston came to our house armed with a large knife, quite clearly with the intention of taking Sophie’s life. He entered our home on a pretence, which is tantamount to a home invasion. He killed Sophie in a cold and calculated way, ignoring my pleas to stop, then disfigured her in a horrifying way. I don’t believe that an 18-year non-parole sentence is anywhere near adequate, but then the Crown decides what’s suitable, not us.

  Because the trial of a murderer evokes so many emotions, Lesley preferred that questions about the system be commented on by people removed from the case. I consulted two prominent legal minds and put a series of questions, concerns and considerations to them for comment. Professor Mark Henaghan is the dean of the law faculty at the University of Otago and regarded by some as New Zealand’s most prominent legal academic, a man of immense humanity who speaks wonderful good sense. The other is arguably New Zealand’s most experienced Crown prosecutor. Simon Moore SC (Senior Counsel, the modern equivalent of Queen’s Counsel) has featured in many of this country’s prominent murder cases. He recognises that in a murder case there is a party other than the accused whose interests need to be addressed and his style for treating victims in major trials could easily be the benchmark. His model could avoid many of the frustrations, anger and concerns the Elliotts experienced.

  In December 2009 the Ministry of Justice released a paper entitled ‘A Focus on Victims of Crime: A Review of Victims’ Rights’. Among the issues listed was: ‘Many victims find the current criminal justice process bewildering. Victims often feel they do not have any role in the criminal case involving them and do not know what is happening.’

  Arising from the Weatherston case are five broad themes that need examining:

  1. Crimes against the Crown

  When Lesley received her summons to appear as a witness, the formality of the document astounded her. She was to attend the trial of Her Majesty the Queen against Clayton Robert Weatherston, accused of murder. It’s not that Lesley can’t accept the process has to be formal; it is the fact the case is between Sophie’s killer and the Queen that makes it all seem so impersonal.

  This is an area of the law Gil Elliott particularly challenges. When studying criminal law at Otago, he accepted that criminals are prosecuted by the state. Like all other law students he accepted that proposition without question, because that’s the way it is done. But Sophie’s death propelled him into a system that made him question a lot of things, including ‘ownership of a case’. On becoming what is euphemistically called a ‘consumer’ of the system, his views changed radically. Gil explains:

  In my view the concept of murder being a crime against the Crown needs to be changed. Homicide is a crime against the person. In Sophie’s case the Crown prosecutors seemed reluctant to talk to us despite us insisting on dialogue. Throughout the trial there was virtually no communication between us and the Crown, yet the accused sits behind his counsel, frequently passing notes. To me the defendant was ‘running’ the trial while we had to endure four and a half weeks with no input.

  The family is represented by a Crown prosecutor but unlike the defendant, we have no say on who handles the case. If you have faith and confidence in the prosecutor, that is all well and good. However, if you believe the prosecutors are not up to the mark then bad luck. I’m not suggesting the Crown prosecutors in this case were inept in any way. What I do take exception to is that the family have no say whatsoever. In cases of homicide the defendant can choose his defence. It felt like the Crown was saying, ‘We will deal with this. You go over there out of sight and we will let you know what’s going on at the appropriate time.’ While the Crown says it’s looking after the victims’ interests, it’s actually looking after the state.

  The notion of crimes against the Crown is a medieval one dating back to the Middle Ages. The King decided anyone who committed crimes on his road (i.e. The King’s Road)
would be convicted in the King’s Court. What happened on private land was a civil matter. Now, 800 years later we have this notion that the state prosecutes all criminal matters, which leaves the victim sidelined. This ancient concept seems at odds with modern-day thinking and is something that’s never been challenged.

  From a victim’s viewpoint, it seems to me that lawyers believe the best way is to leave it to them to dispense justice in a consistent way without involving other ‘players’. I don’t share that view and am convinced victims need a greater say in the administration of justice. In our case the communication from the Crown was minimal. Although Lesley did have productive meetings with the prosecutors, this was essentially because she was the prime witness. I believe that had she not been a witness our involvement with the Crown prosecutors would have been non-existent. No one sought our advice or opinion. About the only thing you can do is prepare a victim impact statement but that is only presented at sentencing, so it’s all too little, too late.

  Mark Henaghan, who expressed the utmost sympathy and empathy with the Elliotts’ plight, looks at the concept of the Crown prosecuting all crimes in a less involved, therefore less emotional, way.

  The criminal law in all countries treats crimes as being against the state because it is the state that makes the laws. Essentially they are the state’s laws, not a family’s. Following a democratic process, a line is drawn regarding criminal offending and it becomes the state’s business to enforce the law.

  The need of a family to feel included is really a matter of good communication between the Crown, the police and the family. While I agree it is important for a family to feel involved, unfortunately for them this has to become a secondary consideration to ensuring a fair trial. We have to convict people on the evidence alone. The fundamental idea is for jurors to have an open mind to decide their verdict based on the evidence presented to them in court. Any doubts about undue influence or impartiality and a judge will always go for another venue for fear of an appeal.

  One thing the law has to watch for is the entirely understandable motive of vengeance. Very early on we had lynch mobs and distortions of the truth. Most people were tried, convicted and punished without any legal representation. So we need to take vengeance out of the system.

  Gil wonders why a trial is even necessary when Lesley witnessed Weatherston murdering their daughter. His logic is understandable, but we can’t differentiate one case from another. To not have a trial gives too much power to the state. In this particular case Gil might think Weatherston had all the power, but he didn’t. He had to fight the state and was ultimately defeated, so in the end justice was done. What we have to keep striving for is open justice, but not in a way that unfairly impacts on the defendant. The system shouldn’t unfairly impact on the victims either and we need to look at processes in that regard. The whole concept of the Crown taking the case is inevitable and right because giving power to the family is not going to solve anything and will lead to other distortions.

  2. Disclosure

  In criminal trials the police are required to disclose to the defence everything discovered when investigating a crime. On the surface it seems an unbalanced system because the defence doesn’t have to show the Crown the same consideration. All they have to do is provide a list of their witnesses but not what they will say. This allows a ‘secret’ witness to be brought in at a late stage, leaving the Crown possibly scrambling to cross-examine the witness in a meaningful way. The defence can therefore hold things back while the prosecution cannot.

  An example of evidence introduced in this way at Weatherston’s trial was that Sophie attacked him with scissors following an argument in her bedroom. Had the Crown known of this ploy earlier, they would have been in a better position to respond. In a way this inequity puts the Crown on the back foot and Gil Elliott rightly asks the question ‘Is this fair?’ I’m not saying people shouldn’t be able to mount an adequate defence. What I am saying is that if it’s okay for one side, it should be the same for the other. I’m suggesting we need more balance in the equation.

  Professor Henaghan says that while it does appear to be out of balance there are good reasons for this.

  Disclosure rules are one-sided but justifiably so. In terms of a fair trial, the most fundamental thing and a cornerstone of the justice system is that people are innocent until proven guilty. The state is the one making the allegation so they have to disclose what it is they are going to prove. How else can the accused hope to rebut what’s being alleged? If the accused had to abide by the same disclosure rules, imagine how terrible that would be if something came up that could prove his innocence but couldn’t be used because it hadn’t been disclosed at the start.

  There are safeguards for rogue or unsubstantiated evidence. If a defence witness gives evidence that is fundamental to the case or has credibility issues, the prosecution can ask the judge for permission to call rebuttal evidence. Not knowing the defence case at the start doesn’t mean that it’s a lost cause. A good prosecutor will often have all contingencies covered to be able to test defence witnesses through cross-examination. A good prosecutor shouldn’t be surprised.

  The Criminal Procedure (Reform and Modernisation) Bill is exciting some debate at present, including over the proposal that the defence disclose the issues in the Crown case they intend disputing and how they will do so. The Bill will shortly be considered by the Select Committee but elements of the defence bar are outraged by this proposed innovation, some going so far as to suggest that it amounts to a change in the onus of proof. Others have publicly commented that it removes one of the few advantages which the defence have, namely ‘trial by ambush’. There is a good deal more water to flow under the bridge before the final shape of the Bill is known but in its present form, had it been in force for the Weatherston trial, it would have required the defence to give notice that they were intending to argue self-defence.

  3. Cross-examination and Defence Tactics

  The question of cross-examination and decorum in the courtroom angered Gil Elliott. The worst incident came when Judith Ablett-Kerr was summing up. She was referring to the evidence of Lesley, who had said she did not hear any noise from the bedroom until she heard Sophie screaming: ‘With great respect and due deference to her [Mrs Elliott], but what she saw on that day must make her a less than reliable witness as far as details go. I don’t want to say that, but I do because I have to.’

  At that point Gil got up and stormed out of court. His views of the defence performance compared to the prosecution are pretty clear.

  I think all victims notice that the defence seem to have a lot more leniency than the prosecution. Throughout the case Justice Potter hardly ever intervened and I feel she could have and should have. Like the time Weatherston said to the senior Crown prosecutor, ‘Are you lying, Mr Bates?’

  To me a court case defence is total theatre. They try to manipulate witnesses, attack some from the outset, put pressure on others and search for weaknesses to exploit. Is that establishing the truth? I don’t think so.

  When a trial is held 18 months after the event, it is little wonder memories are not as sharp as they were at the time of the offending. Therefore it becomes even easier for the defence to probe and establish uncertainty. If they probe hard enough, they can easily get a witness confused, making their testimony seem unreliable. Having watched the trial, I am concerned at the theatrics and aggressiveness that goes on and believe these should be removed from court cases. Leave it to television dramas — not real life.

  Professor Henaghan has very firm views on cross-examination and courtroom decorum and etiquette.

  The whole point of cross-examination is to test the credibility of a witness. You can put an alternative theory to the witness to see if they agree with you or not. In the rules of evidence, it is clear that lawyers cannot be intimidating and it is up to the trial judge to bring people into line. A prosecutor can say, ‘I don’t object to the witness being cross-examined but
can it be less aggressive and toned down?’ Good cross-examiners just suggest things and get the witness to go along with them. Lawyers are expected to be courteous, not rude or aggressive, and all courts should be models of courtesy. I have no problems with the concept of cross-examination or testing credibility, but I do have a problem with mannerisms and tones of voice that intimidate or demean a witness. The confrontational approach suits the style of some lawyers but I wonder why judges don’t intervene more often. To me a court of law is a place of decorum. It is a civilised process and it’s up to a judge to demand that.

  During summing-up, the prosecution or defence can only infer things if they have an evidential basis and again it’s up to the judge to interrupt if propositions are being put forward that had not formed part of the evidence. It’s a bit like the All Black captain Richie McCaw — he knows the rules and pushes them to the limit. Some defence lawyers are like that. A prosecutor has to be vigilant as the defence tries to shape things to shine the best possible light onto their client. This is fair, providing the case is not distorted by it.

  4. Victim Impact Statements

  These have been around for about two decades and provide the only real opportunity for victims to tell the offender and the public how the crime has impacted on their lives. There is a fine line between impact and sentiment, which can be explained as follows.

  Before Clayton Weatherston was sentenced, members of Sophie’s immediate family were invited to address the court by reading aloud their statements. Within Gil’s statement was the sentence ‘Can I ask Clayton, did you enjoy stabbing her as she screamed in agony and terror?’ This was not allowed and Justice Potter ruled it inadmissible. If Gil had said, ‘I lie awake at night tormented by you stabbing her as she screamed in agony and terror and am haunted, wondering whether you actually enjoyed what you were doing,’ this would be acceptable. It describes the impact on Gil. Victims want to have their say but there is no opportunity to tell a person like Weatherston how you really feel about them. It’s quite natural to want to get those feelings off your chest, but the law doesn’t provide a forum for that.