This December, the New Zealand Minister of Justice Kris Faafoi responded to the plea of Professor Sean Davison to have his conviction quashed after assisting his terminally ill mother to take her own life. “I do acknowledge the anguish and concern you must have felt when caring for your mother.” With those words the Minister of Justice ended and softened his letter in which he rejected the plea.
In 2010 Sean Davison was arrested in New Zealand and charged with the attempted murder of his terminally-ill mother, Dr. Patricia Ferguson. In 2011 he received 5 months home detention. The Judge accepted his motive was mercy, not personal gain, and that his mother put him under pressure to help her die but that the law must uphold the sanctity of life.
Now Davison requested for a pardon in light of New Zealand’s vote in favour of the End of Life Choice Act referendum. He compares the conviction for him, and others, for assisting their loved ones to take their own lives, with the convictions of those men with historical convictions for same-sex relations.
Rejection of the plea
Minister of Justice Kris Faafoi has written directly to Davison, at Prime Minister Jacinda Ardern’s request. He distinguishes the calls from Davison, and others carrying historical convictions for assisting loved ones to take their own lives, to treat their convictions the same way as those men with historical convictions for same-sex relations.
Faafoi accepts that in passing the Criminal Records (Convictions for Historical Homosexual Offences) Act 2018, Parliament enabled the expungement of certain convictions because the conduct was no longer criminal. “That Act is exceptional and recognises that the law criminalising homosexual acts is now viewed as highly discriminatory and manifestly unjust,” he writes. “I did not see the social context regarding assisted suicide as comparable, nor is such conduct of the same character as consensual sexual activity.”
Faafoi advises Davison the only avenue is to apply to the Governor-General for the Royal prerogative of mercy, while acknowledging that is reserved only for cases of of wrongful conviction.
Reaction of Davison
Davison and his wife Raine Pan spoke this week with Newsroom, from their home in Capetown, where Davison is serving his sentence of home detention.
Davison told Newsroom he appreciated the minister’s empathy in understanding the difficult circumstances both he and mother faced towards the end of her life. “Although I was disappointed that the minister’s sympathy was not translated to a pardon, I appreciate that he is constrained by the interpretation of the law around the granting of pardon. “I feel that all laws should be open to be challenged and questioned, and I hope this will happen with the laws around the granting of pardons. Laws were written by man for man, and not all our laws are good laws. We have already recognised that the law preventing a terminally ill person having an assisted death was not a good law, and we have now changed it. I feel that the law that prevents me from receiving a pardon for assisting my mother’s suicide should be questioned.”
He thanked his wife for her constant support. “Throughout this time my wife was looking after the children by herself in South Africa while I was in New Zealand – she was under huge pressure. My court conviction and sentence was also a punishment to my family. To have my conviction pardoned will bring great relief and closure to my wife. Raine Pan said the family had been on a long and horrible journey since Dr Ferguson’s death. “It is a tragedy for Sean and our family that he is branded a criminal for helping his mother to die. He did nothing wrong and should never have gone on trial, and should not have a criminal record. “Our young children cannot understand why their father is a criminal for what they understand as kindness. If he is pardoned it will bring peace and closure to our family.”
Davison confirmed he would continue his battle for a pardon. “My mother would never have contemplated asking me to help her to die if she thought I would end up being branded as a criminal for my compassion,” Davison said. “To receive a pardon will bring closure to me and my family, and bring honour to my mother in her death.”
Next step: the queen
Davison wrote back to the Minister of Justice this week, acknowledging his” sympathetic words” and confirming his intention to ask the Governor-General to use her Royal prerogative of mercy. “Although I broke the law, I hope the Governor General will appreciate that helping my mother to die was a crime of compassion, and to have a criminal record for this is a miscarriage of justice.”