Justice Minister Kris Faafoi has written to a scientist convicted of helping his terminally ill mother die, rejecting his plea for a pardon
“I do acknowledge the anguish and concern you must have felt when caring for your mother.”
Those final words from the Minister of Justice have softened an otherwise “discouraging” response to New Zealand scientist Professor Sean Davison’s plea to have his conviction quashed after assisting his terminally ill mother to take her own life.
Davison was called home from South Africa in 2006 to care for his dying mother. Dr Patricia Ferguson was terminally ill with cancer; she was trying to starve herself to death but suffering the very protracted misery she had sought to avoid. She pleaded with her scientist son to help her to die.
Should those with historical convictions for assisting the suicide of terminally ill loved ones now be entitled to have their convictions expunged, after the passing of the End of Life Choice Act referendum? Click here to comment.
He finally acceded; he gave her a lethal dose of crushed morphine tablets mixed with water. He was charged with attempted murder; he agreed to plead guilty to assisted suicide. He was sentenced to five months’ home detention, finally returning to his wife and children in South Africa in May 2012.
There, the New Zealander became a prominent international voice for assisted dying. Last year, in the Western Cape High Court, he was sentenced to three years house arrest for his involvement in the deaths of three men: his friend, Dr Anrich Burger, who became a quadriplegic after a car crash; Justin Varian, who had motor neuron disease; and 32-year-old athlete Richard Holland, left with locked-in syndrome after a cycling crash.
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. They 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.”
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.”
Minister of Justice Kris Faafoi has written directly to Davison, at Prime Minister Jacinda Ardern’s request, responding to his request for a pardon in light of New Zealand’s vote in favour of the End of Life Choice Act referendum. Faafoi advises him 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.
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.”
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.”
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.”
Davison confirmed he would write to Governor-General Dame Patsy Reddy seeking a Royal prerogative of mercy. “I hope that she will see my conviction for assisted suicide as a miscarriage of justice because at the time of helping my mother to die our legal system had not caught up with the reality of the suffering some people experience at the end of their lives,” he explained.
“I feel that a prerogative of mercy should come from her heart, and not be constrained by laws.”