Davies aka Waipouri v The Queen
[2019] NZCA 132
•3 April 2019 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA266/2017 [2019] NZCA 132 |
| BETWEEN | MICHAEL JOSEPH DAVIES (aka MICHAEL JOSEPH WAIPOURI) |
| AND | THE QUEEN |
| Hearing: | 2 April 2019 |
Court: | Williams, Collins and Toogood JJ |
Counsel: | R M Mansfield for Appellant |
Judgment: | 3 April 2019 at 10.00 am |
Reasons: | 2 May 2019 |
JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Murphy died from multiple blows that Mr Waipouri delivered to his head.[1] Several hours beforehand, Mr Waipouri had handcuffed Mr Murphy and placed a bag over his head. Mr Murphy continued to be incapacitated in this way at the time of his death. From this unpromising platform, Mr Waipouri wished to advance self‑defence at his trial for murdering and kidnapping Mr Murphy. Hinton J, the trial Judge, ruled that the jury could not consider self-defence when determining Mr Waipouri’s guilt.
[1]The appeal is brought in the name of Mr Davies. At his trial Mr Davies was referred to as Mr Waipouri. We have used the surname Waipouri in this judgment.
Mr Waipouri appealed his convictions for murder and kidnapping and the 19‑year minimum period of imprisonment (MPI) that was imposed in conjunction with his sentence of life imprisonment. [2] Mr Waipouri’s co-defendant, Mr Gunbie, was charged with assisting the kidnapping and as an accessory after the fact to the murder but was found not guilty of these charges.
[2]R v Waipouri [2017] NZHC 729.
The appeal against conviction challenged the decision of Hinton J to preclude self-defence. The appeal against sentence contended that the MPI of 19 years was manifestly excessive.
At the conclusion of the hearing, we announced the appeals were dismissed.[3] Our reasons are set out below.
[3]Davies v R [2019] NZCA 87.
Mr Waipouri’s notice of appeal was filed four days out of time. He required an extension of time to file his notice of appeal. Mr Waipouri stated that he had difficulty contacting his counsel while being moved between prisons. Given the delay was only minor and adequate explanation was given, we granted the application.
Background
Mr Waipouri and Mr Murphy had been friends for approximately 30 years. Their relationship in the period leading up to Mr Murphy’s death was, according to Mr Waipouri, marred by animosity. For example, Mr Waipouri said that about five months before his death Mr Murphy had threatened to use Mr Waipouri as a “boat anchor”.
On 18 November 2015, Mr Waipouri and Mr Murphy had an argument at Mr Waipouri’s home. After the argument, Mr Murphy sent a text message to his daughter, saying that he was afraid Mr Waipouri was going to kill him.
The following day, Mr Murphy went to Mr Waipouri’s home. In his evidence, Mr Waipouri said that he decided on 19 November 2015 to kill Mr Murphy after he found out that Mr Murphy had killed two people. On the same day, Mr Murphy is alleged by Mr Waipouri to have sent him a text message saying, “I can’t stop the ball rolling, it’s too late”, which Mr Waipouri interpreted as a threat. There is, however, no record of that text message having been sent.
On 20 November 2015, Mr Waipouri asked Mr Murphy to drive him to pick up a large quantity of drugs. Mr Waipouri told Mr Murphy he would pay him for his assistance. The following evening, Mr Murphy drove Mr Waipouri to the home of Mr Gunbie in Warkworth. Mr Waipouri brought handcuffs with him to Mr Gunbie’s place where they drank alcohol and consumed drugs. During the evening, an argument broke out between Mr Waipouri and Mr Murphy about the attributes of Mr Waipouri’s pig dog. During the course of this incident Mr Waipouri suddenly picked up an aluminium baseball bat and struck Mr Murphy on his elbow and about his head. Mr Waipouri then went to one of the bedrooms to sleep off the effects of the drugs he had taken. Mr Murphy went to another room to sleep.
Early the following morning, Mr Waipouri went into the room where Mr Murphy was sleeping. Mr Waipouri put the handcuffs on Mr Murphy’s wrists and placed a large fabric bag over his head, which he secured to Mr Murphy’s belt. Mr Waipouri then told Mr Murphy that if he signed his home over to Mr Murphy’s children and gave them all his money he would live. If he did not, then he would die. Mr Murphy agreed to sign his property over to his children, but Mr Waipouri doubted Mr Murphy’s sincerity. Mr Waipouri then put Mr Murphy in the back of a hatchback car and drove with Mr Gunbie to a rural property in Puhoi. On the way, Mr Waipouri bathed at a creek after which he opened the hatch door and struck Mr Murphy on the head with the baseball bat when Mr Murphy tried to get up.
At Puhoi, Mr Waipouri punched Mr Murphy about his head and tried to stab him with a screwdriver. Mr Waipouri then dragged Mr Murphy from the car to a four‑wheeled drive vehicle, which Mr Gunbie drove to a clearing at the top of a hill. On the way, Mr Waipouri hit Mr Murphy about the head with the baseball bat. At the clearing Mr Waipouri again struck Mr Murphy about the head several more times with the baseball bat. He then picked up a large tree branch and struck Mr Murphy three more times to the back of the head. Mr Murphy died as a result of the injuries to his head.
Mr Waipouri was interviewed by the police on 12 December 2017. In his interview, Mr Waipouri said:
(a)“I killed him because he was going to kill me”.
(b)He had “no regrets” or “qualms” about killing Mr Murphy, that he would do it again “without hesitation” and that he was “proud” of what he did.
(c)That he killed Mr Murphy because he was a “hitman” and because Mr Murphy “scared” his children.
(d)He resolved to kill Mr Murphy when he found out that Mr Murphy had killed two people, namely his wife and his mother-in-law. Later in the interview, Mr Waipouri said he had “no choice” but to kill Mr Murphy when he “found out that [Mr Murphy had] killed 10 people”.
(e)That Mr Waipouri’s “main objective” was to get Mr Murphy out of his home and away from his children.
(f)Mr Murphy threatened Mr Waipouri’s status and mocked his pig dog, saying that the insult about Mr Waipouri’s dog was “… what triggered his death”.
(g)That he put a “sack” over Mr Murphy’s head and that he had to “crack” Mr Murphy with all his strength.
In his evidence at trial, Mr Waipouri repeated the admissions he had made when interviewed by the police. In summary, Mr Waipouri told the jury:
(a)He decided to kill Mr Murphy on 19 November 2015 after he found out Mr Murphy had killed two people and after he had been told Mr Murphy had killed 10 people.
(b)Mr Murphy had made threats to kill Mr Waipouri and that on 19 November 2015 Mr Murphy “declared war” on Mr Waipouri.
(c)He believed Mr Murphy was setting Mr Waipouri up to go to prison.
(d)Mr Waipouri said he intended to hold Mr Murphy and use him to lure Mr Murphy’s associates to Mr Waipouri and that he would “bash the shit out of them”.
(e)Mr Waipouri also told the jury that he was “sick of [Mr Murphy] telling [him] lies and shit”.
Dr Goodwin, a forensic psychiatrist, gave evidence that Mr Waipouri was not suffering any form of mental disorder, but that he did have a “fairly chronic low grade paranoid view of the world”. In this context “chronic” means of long duration or enduring.
Ruling on self-defence
On 27 February 2017, after the defence case closed, Hinton J granted an application by the Crown for a ruling that the jury not be permitted to consider self‑defence. The reasons for her ruling are set out in a judgment dated 10 March 2017.[4]
[4]R v Waipouri [2017] NZHC 402.
Hinton J followed the traditional three-step process when concluding it would be impossible for the jury to entertain a reasonable doubt that Mr Waipouri was acting in self-defence. The questions answered by Hinton J were:[5]
(a)What did Mr Waipouri believe the circumstances to be when the evidence is assessed from his perspective and in the way that is most favourable to him?
(b)From Mr Waipouri’s perspective, was he using force for the purpose of defending himself?
(c)Could a properly directed jury possibly consider Mr Waipouri was using reasonable force in the circumstances as he perceived them to be at the time he killed Mr Murphy?
[5]At [6].
In concluding that Mr Waipouri believed Mr Murphy was intending to kill him, Hinton J traversed the evidence and observed that Mr Waipouri believed Mr Murphy had killed others, including Mr Murphy’s wife and mother-in-law and that he believed that Mr Murphy had made threats to Mr Waipouri’s life in the months leading up to the killing.[6]
[6]At [12]–[33].
Hinton J said it was difficult to see how Mr Waipouri’s actions could possibly have been for the purpose of defending himself, but, nevertheless, taking the view that was most favourable to Mr Waipouri, she accepted that he thought he had to kill Mr Murphy to eliminate a threat to his own life.[7]
[7]At [34].
In relation to the third question, Hinton J said, even taking the most favourable view of Mr Waipouri’s view of the circumstances, no jury could possibly regard his actions as reasonable.[8] The factors that influenced the Judge’s decision on this point were:
(a)Mr Waipouri waited several days to respond to the threat he believed Mr Murphy had made against him on 19 November 2015.[9]
(b)Mr Waipouri showed no signs of being afraid to travel with Mr Murphy or to sleep in the same house as him.[10]
(c)Mr Waipouri was not defending himself when he hit Mr Murphy with the baseball bat.[11]
(d)Mr Waipouri eliminated any threat that Mr Murphy may have posed when he handcuffed him and secured a bag over his head.[12]
(e)Alternative courses of action were available to Mr Waipouri.[13] The fact he gave Mr Murphy an ultimatum demonstrated his own appreciation that courses of action, other than killing Mr Murphy, were available to Mr Waipouri.[14]
Ground of appeal against conviction
[8]At [54].
[9]At [36].
[10]At [37].
[11]At [37].
[12]At [37].
[13]At [39].
[14]At [40].
The gravamen of the appeal against conviction is that Hinton J erred when she ruled that a properly directed jury could not possibly have considered that Mr Waipouri used reasonable force in the circumstances as he believed them to be, at the time he killed Mr Murphy.
Mr Mansfield, counsel for Mr Waipouri in this Court, submitted that Mr Waipouri genuinely thought Mr Murphy posed an ongoing fatal threat to him. In those circumstances, he submitted it was open to the jury to conclude Mr Waipouri’s actions were reasonable. It was contended that Hinton J “erred in usurping the function of the jury to properly consider” Mr Waipouri’s claim of self-defence.
Crown case on appeal
Ms Grau, counsel for the Crown, submitted Hinton J properly applied the law of self-defence when she answered the third question and therefore she correctly concluded that this was a case in which self-defence should not have been left to the jury.
Relevant law
Section 48 of the Crimes Act 1961 provides:
48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
In R v Sila, this Court explained:[15]
[28] Self-defence should be left to the jury where the evidence raises a credible or plausible narrative which might lead the jury to entertain a reasonable possibility of self-defence: R v Wang [1990] 2 NZLR 529 at 534 (CA). In deciding whether there is a credible or plausible narrative, the judge must consider the matter on the view of the evidence most favourable to the accused: R v Kerr [1976] 1 NZLR 335 at 340 (CA) …
[29] In Bridger a Full Court of this Court considered the role of the trial judge when assessing whether self-defence should be left to the jury.[[16]] Counsel had submitted that the judge should assess whether, in the circumstances as the accused perceived them, the accused was acting in the defence of himself or another … but that the judge should leave the question of whether the force was reasonable … for the jury.
[30] The Court rejected this submission, saying (at [21]):
This Court in Wang rejected an argument that what amount of force is reasonable in the circumstances in the defence of oneself or another is always a question for the jury in a jury trial and never a point of law for the Judge. It accepted that in some cases it would be open to the trial Judge to conclude that the facts were not capable in law of giving rise to a possible defence (justification may be a better word) of self-defence. In our view the consideration of those facts may be directed to both the nature and the extent of the force used by the accused. If the Judge concludes that a properly directed jury could not possibly think that an accused was responding reasonably to the circumstances which he or she perceived, the Judge may withdraw consideration of self-defence from the jury.
(Emphasis added.)
Analysis
[15]R v Sila [2009] NZCA 233.
[16]R v Bridger [2003] 1 NZLR 636 (CA).
There is no challenge to the way Hinton J answered the first two questions relating to whether or not self-defence should be left to the jury to consider. Our focus is therefore on the way her Honour dealt with the third question.
There are two factors that lead us to agree with Hinton J that it could not be contended Mr Waipouri used reasonable force in the circumstances as he perceived them to be. First, there was no imminent threat against him from Mr Murphy. Second, Mr Waipouri had ample opportunity to protect himself without resorting to killing Mr Murphy.
Absence of imminent threat
This Court noted in Vincent v R:[17]
[28] While the imminence of the threat is not treated as a distinct or separate requirement, the authorities have emphasised that the imminence or immediacy of the threat is a factor that is to be weighed in assessing whether the defence is available. This is a question of fact and degree. Amongst other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action are to be considered …
[29] … As the learned authors of a leading text put it, the justification of pre-emptive strike self-defence “should not be used as a mask for retaliation or as a means of resolving [the defendant’s] misplaced anxiety concerning a future, possible or even imaginary attack.
(Footnotes omitted.)
[17]Vincent v R [2015] NZCA 201.
There was no imminent threat posed by Mr Murphy to Mr Waipouri at the time he was killed. It is significant that Mr Waipouri believed Mr Murphy had been threatening him during the six-month period prior to his death. Notwithstanding these perceived threats, Mr Waipouri had no hesitation in travelling alone with Mr Murphy to Warkworth the day before the killing. Mr Waipouri also had no hesitation in sleeping in the same house as Mr Murphy the night before Mr Murphy was killed. Mr Waipouri was content to be in Mr Murphy’s company in the days leading up to Mr Murphy’s death because Mr Waipouri did not fear him. He did not fear him because, by this time, Mr Waipouri had resolved to kill Mr Murphy.
It is also significant that Mr Waipouri handcuffed Mr Murphy and placed a bag over his head on the morning of the killing. Those actions eliminated any possible threat Mr Murphy may have posed to Mr Waipouri in the time he killed him.
Alternative courses of action
This Court noted in R v Wang:[18]
There may well be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately.
[18]R v Wang [1990] 2 NZLR 529 (CA) at 536.
Mr Waipouri had multiple opportunities to remove himself from any threat that he believed Mr Murphy posed. His failure to do so meant his killing of Mr Murphy could never be a reasonable use of force.
As Hinton J noted, Mr Waipouri twice gave Mr Murphy an ultimatum to sign over his home and money to his children. If he did so, then Mr Waipouri would not kill him. Thus, even Mr Waipouri appreciated alternative avenues were available to avoid killing Mr Murphy.
Other courses of action available to Mr Waipouri included going to the police. In his evidence, Mr Waipouri said he was not attracted to this idea because the police would not believe him. He also laboured under the belief that Mr Murphy was a police informant. Those explanations do not, however, undermine the Crown’s argument that Mr Waipouri had plenty of alternative courses available to him.
Pre-emptive strike
There is no traction in the submission that Mr Waipouri was entitled to have the jury determine whether or not he was justified in launching a pre-emptive strike against Mr Murphy. That submission was in part based upon the contention that Mr Waipouri’s circumstances were similar to those of a battered woman and that the cumulative effect of Mr Murphy’s threats led Mr Waipouri to suffer ongoing fear. That submission is, however, contrary to the law, which treats defences such as self‑defence as “strict exceptions to the general rule that citizens cannot use force in our society”.[19]
Paranoid views
[19]Leason v Attorney-General [2013] NZCA 509, [2014] 2 NZLR 224 at [57], citing R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136.
Mr Waipouri’s chronic, low-grade paranoid view of the world does not in any way undermine the correctness of the approach taken by Hinton J. Mr Waipouri’s psychological issues could have no bearing on the assessment of the reasonableness of the force he used. This point was recognised by the Court of Appeal of England and Wales in R v Oye when it held that a defendant’s insane delusions could not influence the assessment of the reasonableness of the force they used. [20] That Court observed that “[a]n insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity”.[21]
[20]R v Oye [2013] EWCA Crim 1725, [2014] 1 WLR 3354.
[21]At [47].
In our assessment, Hinton J correctly decided not to leave self-defence to the jury. No properly directed jury could possibly have concluded Mr Waipouri used reasonable force in the circumstances as he perceived them to be at the time he killed Mr Murphy. There was “no credible or plausible narrative which might [have led] the jury to entertain the reasonable possibility of self-defence”.[22]
[22]Vincent v R, above n 17, at [23].
The appeal against conviction was therefore dismissed.
Appeal against sentence
Mr Mansfield properly accepted that Hinton J was correct when she concluded that this case engaged s 104 of the Sentencing Act 2002 because the murder involved a high degree of brutality and callousness. Section 104 was also engaged because at the time of the murder Mr Murphy was vulnerable, having been handcuffed by Mr Waipouri and wearing a bag over his head.
We agree with Hinton J that the starting point of 19 years was available and appropriate. This conclusion is reinforced by the fact that Mr Waipouri did not receive any uplift for his extensive prior criminal history or for the associated kidnapping of Mr Murphy.
In his submissions, Mr Mansfield urged us to consider a discount to reflect Mr Waipouri’s personality issues. We are unable to do so. Mr Waipouri’s paranoia was low-grade and is a personality trait, not an illness that might be amenable to treatment. Hinton J was correct when she said Mr Waipouri’s paranoid personality trait underscores the risk he presents to the community.[23]
[23]R v Waipouri, above n 4, at [71].
The appeal against sentence was therefore dismissed.
Result
The application for an extension of time was granted.
The appeals against conviction and sentence have been dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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