Fraser v R
[2010] NZCA 313
•20 July 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA68/2010
[2010] NZCA 313
BETWEENDARYL LEE FRASER
Appellant
ANDTHE QUEEN
Respondent
CA103/2010
AND BETWEEN SEAN IAN TE HIRA SELBY
Appellant
ANDTHE QUEEN
Respondent
Hearing:1 July 2010
Court:Randerson, Harrison and Venning JJ
Counsel:C B Wilkinson-Smith for Fraser
G J King and J Wong for Selby
N P Chisnall for Respondent
Judgment:20 July 2010 at 4 p.m.
JUDGMENT OF THE COURT
A Mr Fraser’s appeal against conviction is dismissed.
B Mr Selby’s appeal against conviction and sentence is dismissed.
CName suppression for both accused to lapse upon the date of issue of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Para No
Introduction [1]
Background [3]
Mr Fraser’s appeal against conviction [13]
Mr Selby’s appeal against conviction [21]
Intoxication [22]
Provocation [42]
Provocation and revival [64]
Severance [73]
The juror issue [78]
The majority verdict [82]
Sentence appeal [86]
Suppression [90]
Introduction
[1] Following a jury trial in the High Court at Auckland Mr Selby was found guilty of murder and Mr Fraser guilty of manslaughter. Asher J sentenced Mr Selby to life imprisonment with a minimum non-parole period of 11 years and Mr Fraser to six years’ imprisonment.
[2] Mr Selby appeals against conviction and the imposition of the 11 year minimum non-parole period. Mr Fraser appeals against conviction.
Background
[3] We take the facts as found by Asher J for sentencing purposes. At the time of offending both Mr Selby and Mr Fraser were 18 years old. They had spent the evening of 7 December 2007 at an eighteenth birthday party in Howick. At about midnight they had left the party and were walking along Ridge Road onto Mellons Bay Road on the way to Mr Fraser’s home. They came across a number of partygoers congregated on the footpath outside 112 Mellon’s Bay Road. This was about 700 metres from Mr Fraser’s home. Included in that group were the deceased Darryl Graydon and his friend Campbell Sussex. Mr Graydon and Mr Sussex were about 24 years of age.
[4] As Mr Selby and Mr Fraser passed through the group, words were exchanged. The exchange became heated. Mr Graydon became agitated. He followed them and punched Mr Selby in the face. At that time there was no suggestion that Mr Selby had physically done anything to Mr Graydon or others in the group. The punch did not knock Mr Selby down or leave him with any particular marks. Mr Graydon was pulled away from the altercation by others, including Mr Sussex.
[5] Mr Selby and Mr Fraser then carried on to Mr Fraser’s home. Once there they took three knives from the kitchen. Mr Selby removed his coloured polo tee-shirt and dress shoes and replaced them with a white tee-shirt and sports shoes. Both then proceeded back up Mellons Bay Road carrying the three knives. The knives had blades of approximately 11 centimetres in length.
[6] The appellants walked past where the earlier altercation had taken place at 112 Mellons Bay Road. The group, including Mr Graydon, were no longer there. Mr Selby and Mr Fraser carried on up Mellons Bay Road, past the intersection with Bleakhouse Road and continued along the footpath of Ridge Road looking for the deceased and his friend.
[7] Mr Selby and Mr Fraser saw Mr Graydon and Mr Sussex some distance ahead on Ridge Road. They crossed the road to follow them and walked at a fast speed towards them. As Mr Selby and Mr Fraser got closer to Mr Graydon and Mr Sussex, the appellants called out “two on two” indicating a wish to fight. Mr Graydon and Mr Sussex, having noticed the appellants, continued to walk on, minding their own business. They were aware Mr Selby and Mr Fraser were approaching them very quickly. They turned and were ready to engage if attacked. But as Mr Selby and Mr Fraser got close, both pulled knives out from their waist area. Mr Selby had one knife, Mr Fraser had two knives. Both Mr Selby and Mr Fraser yelled out the words “knifey, knifey”. At this, both Mr Graydon and Mr Sussex, realising they were being confronted with knives, turned and ran away in different directions.
[8] Mr Selby pursued Mr Graydon and Mr Fraser pursued Mr Sussex. Mr Selby quickly gained on Mr Graydon. When he caught up with him he stabbed him, initially in the back while he was running, but he continued to stab Mr Graydon even after he stopped. Mr Selby stabbed Mr Graydon five times. Of these, four were in the back region and one in the lower front stomach. They were deep wounds. At least two were potentially fatal.
[9] In the meantime Mr Fraser had chased Mr Sussex, who had tried to get away but had fallen over. Mr Fraser left Mr Sussex and went back to where Mr Selby was on the road with Mr Graydon. Together they both quickly left the scene. They proceeded to escape by running through the back of various properties. In the course of that they discarded their knives and ultimately split up.
[10] Asher J rejected Mr Selby’s account that when he had confronted Mr Graydon on the second occasion, Mr Graydon had presented a bottle and tried to hit Mr Selby with it. The Judge found no bottle was present and no attempt was made by Mr Graydon to hit Mr Selby with a bottle.
[11] As a result of the stab wounds inflicted by Mr Selby, the deceased Mr Graydon died in the ambulance before reaching hospital.
[12] In addition to the counts on which they were convicted, the appellants also faced a count of attempted murder in relation to the attack on Mr Sussex and, in the alternative, a count of attempting to cause him grievous bodily harm. They were acquitted on both additional counts.
Mr Fraser’s appeal against conviction
[13] Mr Wilkinson-Smith advanced Mr Fraser’s appeal against conviction on a short and novel point. It was that the Judge had erred in his direction to the jury that if they had found Mr Selby guilty of murder or manslaughter, they were then to go on to consider whether Mr Fraser was guilty as a party.
[14] On Mr Wilkinson-Smith’s submission, even if the jury had concluded Mr Selby was guilty of murder, the Judge was required to direct the jury, when considering Mr Fraser’s position, to effectively put that finding to one side and determine whether on the basis of the evidence admissible against Mr Fraser (which would exclude Mr Selby’s inculpatory statements made out of Court), the jury was satisfied Mr Selby was guilty of murder. Only then could they go on to consider whether Mr Fraser was guilty as a party to murder.
[15] Mr Wilkinson-Smith was unable to assist the Court by identifying any New Zealand or overseas authority to support this rather novel proposition, which is contrary to the accepted practice in this country for summing up on the issue of parties to murder.
[16] Mr Wilkinson-Smith suggested that it was a matter of first principle and that the submission was supported generally by reference to the authorities of R v Paterson,[1] R v Morland[2] and R v Humphries.[3]
[1] R v Paterson [1976] 2 NZLR 394 (CA).
[2] R v Morland CA148/99, CA218/99 6 September 1999.
[3] R v Humphreys [1965] 3 All ER 689.
[17] A review of those cases discloses they do not support the argument Mr Wilkinson-Smith sought to advance. R v Paterson is authority for the proposition that an accused person cannot be found guilty as a party under any of s 66(1)(b), (c) or (d) unless it is proved the offence was committed by some person other than himself. In short, in those circumstances, there must be a principal guilty of the offence for the accused to be guilty as a party: R v Harrison.[4] In this case Mr Selby was the principal. The jury had, by their verdicts, concluded Mr Selby was guilty of murder. That was the only pre-condition to the jury going on to consider Mr Fraser’s guilt as a party. We note that it was accepted in the present case that if Mr Selby was not guilty of murder then Mr Fraser could not be guilty as a party to murder and the Judge directed the jury accordingly.
[4] R v Harrison [1941] NZLR 354 (CA).
[18] R v Morland turned on whether the admissible evidence in relation to the appellant’s role as a party to the particular offence was sufficient to support the conviction. It does not support the proposition Mr Wilkinson-Smith argues for.
[19] R v Humphreys is no more than authority for the proposition that evidence proving the commission of the offence, which was not admissible against the principal, may be admissible against the secondary party to support a conviction for the secondary party, even where the principal may have been acquitted.
[20] The argument advanced on behalf of Mr Fraser finds no support in the authorities he relied on nor in principle. It is misconceived. Mr Fraser’s appeal against conviction is dismissed.
Mr Selby’s appeal against conviction
[21] Mr King advanced five grounds to support Mr Selby’s conviction appeal:
(1)The Judge’s direction on the effect of intoxication was inadequate and apt to mislead.
(2)The Judge should have permitted the partial defence of provocation to be put to the jury.
(3)Mr Selby should have had a separate trial.
(4)The Judge should have discharged a juror.
(5)The Judge should not have allowed the jury to return a majority verdict.
Intoxication
[22] It was a major feature of Mr Selby’s defence (in the event self-defence failed) that he lacked murderous intent. In support of that submission the defence relied upon the effect of the alcohol Mr Selby had consumed earlier in the evening and the issue of intoxication.
[23] There was a considerable amount of evidence given at trial concerning the amount and types of alcohol that Mr Selby had consumed. The issue of intoxication featured large in the course of the evidence and trial counsel, Mr Hart’s addresses to the jury.
[24] Mr King criticised the Judge’s direction to the jury as to the effect of intoxication. He submitted that as a result of the failings by the Judge in relation to this issue the legal effects of intoxication were not adequately conveyed to the jury so that a substantial miscarriage of justice had resulted.
[25] The Judge addressed the issue of intoxication in his summing up, both in relation to its effect on self-defence (which is not criticised) and in relation to murderous intent. The Crown relied on both forms of murderous intent. We set out the Judge’s direction about the effect of intoxication on murderous intent in full as follows:
[59] Now, I want to say something specifically about alcohol in relation to murderous intent. I told you that intoxication is not a defence, but you can take it into account in assessing murderous intent. You have heard quite a bit of evidence about the alcohol that was consumed on the evening in question. I need to emphasise to you that the law holds people responsible for their intentional acts, even if they were drunk at the time. Intoxication or being drunk is not a defence, as I have said. But intoxication may be relevant to the question of intent. That is, if the accused was affected by alcohol it may be relevant to his state of mind. With regard to the issue of intent in step 4 you need to consider whether the accused was affected by alcohol to the extent that it affected his ability to form the necessary intent, and whether it affected his understanding of the likely consequences of stabbing someone, or it affected his state of mind. So when you are considering the element of murderous intent, either (a) or (b), you keep this in mind. It is a matter of fact for you to resolve as to what amount of alcohol was consumed and the effect of it on the accused.
[60] So, intoxication is relevant to assessing the first sort of intent, and then as to the second sort of intent it is relevant to assessing going through those three elements that I have mentioned to you, or sub-elements of (b):
a) Whether Mr Selby intended to cause bodily injury;
b)Whether he knew that death would ensue or his actions were likely to cause death; and
c)Whether he was reckless whether death ensued or not.
So that is what I wanted to say to you about intoxication.
[26] The Judge returned to the issue of the effect of intoxication on the accused’s murderous intent in other parts of his direction. For example when he clarified (at counsel’s request) that the effect of the alcohol consumed by the appellant was an issue for the other counts as well as murder he said as follows:
you will remember I discussed the relevance of intoxication, of drunkenness, in assessing murderous intent and how it was relevant in assessing both the first and second types of murderous intent.
Then later:
if we just look at the fourth question sheet, question 1.1(a) was ‘Has the Crown proved beyond reasonable doubt that Sean Selby intentionally helped Daryl Fraser to attempt to kill Campbell Sussex’. You will consider the evidence of intoxication of Mr Selby when you consider his intention. That will be a factor that you will take into account, just as I have already asked you specifically to do in relation to intention to murder.
[27] He then effectively repeated the same direction in relation to the grievous bodily harm matter in the following paragraph.
[28] Mr King referred to a number of authorities where the issue of an intoxication direction has been considered by the Court including R v Dixon,[5] R v Kamipeli,[6] R v Tihi,[7] R v Hagen,[8] R v Purcell,[9] R v Storer,[10] and R v Tukaki[11] to support his argument the Judge had fallen into error in his direction in this case. The authorities confirm that while intoxication is not a defence, where there is evidence the accused is affected by alcohol the Judge must direct the jury as to the effect of that on the particular aspects of murderous intention in issue. Mr King relied on the following passage from Kamipeli:[12]
The question for us then is whether by saying what he did Chilwell J left the jury free to decide whether on the whole of the evidence they had a reasonable doubt whether the Crown had satisfied them of either of the intents mentioned in paras (a) and (b) of s 167. The appellant says that he did not, because of the Judge's direction that unless they believed that the appellant had reached the stage when his mind was no longer functioning at all and he was acting as a sort of automaton, they must reject the defence of lack of intent; whereas in truth it was open to the jury, even if the evidence fell short of establishing that degree to conclude on all the evidence that the Crown had failed to discharge its onus. We think that this submission is unanswerable for the vice of which the appellant complains is inherent in what was said.
[5] R v Dixon [2007] NZCA 398.
[6] R v Kamipeli [1975] 2 NZLR 610 (CA).
[7] R v Tihi [1990] 1 NZLR 540 (CA) at 544.
[8] R v Hagen CA162/02, 4 December 2002.
[9] R v Purcell CA42/05, 20 June 2005.
[10] R v Storer CA368/05, 2 May 2006.
[11] R v Tukaki CA360/05, 14 June 2006.
[12] At 617.
[29] Mr King submitted the Judge had effectively misdirected the jury by referring to the ability of the accused to form the necessary intent. He drew the Court’s attention to the following passage in R v Purcell:[13]
... even if evidence falls short of proving that an accused is so drunk that his mind is no longer functioning, it is still open to a jury to conclude on all the evidence that the Crown has failed to prove the necessary intent.
[13] At [17].
[30] When the Judge’s direction on the issue of intoxication is read in full and considered in the context of the summing up overall, it is quite apparent the Judge did not suggest that the issue of intoxication was only relevant if the accused effectively lacked capacity to form intent. Rather, Asher J directed the jury more broadly that it was necessary for them to consider whether the consumption of alcohol had affected his understanding of the likely consequences of stabbing someone, or whether it affected his state of mind. In other words, whether he was so affected by alcohol that he did not form either of the necessary forms of murderous intent that the Judge had discussed with the jury.
[31] Asher J correctly directed the jury that the amount of alcohol drunk by Mr Selby was relevant to both forms of murderous intent. He specifically referred to both paras (a) and (b) of s 167 and also went further in relation to (b) by addressing the relevance of intoxication in relation to the three elements of s 167(b). As the Judge correctly said it was a matter of fact for the jury to resolve as to the amount of alcohol Mr Selby had consumed and the effect of it on him. We are satisfied the direction did not mislead the jury as to the relevance and effect of intoxication on murderous intent.
[32] Next, Mr King submitted that the Judge should have included written directions as to intoxication in the issues sheets provided to the jury. We do not accept that was required, either in this case or generally as a practice. Issues sheets are primarily directed at the elements of the offence. The amount of alcohol consumed by the accused and its effect on his intent were evidentiary matters. They did not need to be included in the issues sheet. We note also that the issues sheets were settled with counsel before they were put to the jury and trial counsel did not raise this issue.
[33] Mr King then criticised what, in his words, was the Judge’s repeated direction that intoxication was not a defence, and his emphasis the law holds people responsible for their intentional acts even if drunk. Mr King submitted those directions served to undermine the defence.
[34] The Judge’s direction that:
I need to emphasise to you that the law holds people responsible for their intentional acts, even if they were drunk at the time. Intoxication or being drunk is not a defence, as I have said.
is a correct direction at law and is unexceptional. In the context of a long and careful direction to the jury, there was no over emphasis of this point.
[35] Mr King next submitted that the Judge was wrong to direct the jury at [59] that intoxication “may be relevant” to the question of intent and state of mind because it “was relevant” and the jury should have been directed accordingly. The short answer to that submission is that at [60] of his summing up the Judge directed the jury that the issue was relevant to their consideration as follows:
intoxication is relevant to assessing the first sort of intent, and then as to the second sort of intent it is relevant to assessing going through those three elements that I have mentioned to you ...
(Emphasis added)
[36] Mr King then suggested that the Judge had not made it clear that the intoxication was to be assessed on the basis of reasonable possibility. In his submission the jury was effectively directed that they had to be satisfied the appellant was affected by alcohol, not simply that he may have been. Again, the answer to that submission lies in the Judge’s directions to the jury. The Judge made it quite clear where the onus of proof lay in his general charge to the jury. No criticism is made of his direction in that regard. On the issue of the amount of alcohol consumed and its effect, the Judge correctly directed the jury:
It is a matter of fact for you to resolve as to what amount of alcohol was consumed and the effect of it on the accused.
There is nothing in this point.
[37] The next criticism Mr King sought to advance is related. He submitted it seemed the onus was on the appellant to demonstrate intoxication precluded his murderous intent, whereas it should have been made clear the onus was on the Crown to prove that he did not. We are satisfied the Judge made it clear on the issue of murderous intent and on the elements of the offences generally in his direction to the jury that the onus was on the Crown to prove each of those elements beyond reasonable doubt. It was also emphasised in the issues sheets provided to the jury as follows:
If the Crown has not proven beyond reasonable doubt that Mr Selby had either of the murderous intents, then he is not guilty of murder but guilty of manslaughter ...
And later on the same direction:
You must be sure that one of the two possible types of murderous intent has been proved. ...
[38] Mr King then sought to argue that the directions did not sufficiently relate back to the facts of the case and the Judge should have recited the evidence of how much and what the appellant had had to drink and over what time frame.
[39] The Judge’s duty was to direct the jury as to the effect of the alcohol Mr Selby had drunk to the issue of intent. He did so. This was not an abstract summing up where the Judge failed to relate the legal elements of the charge to the issues in the case. He was not required to go through the evidence relating to intoxication in detail in his summing up. In any event, when summarising the respective cases the Judge did so in quite some detail. He referred to Mr Hart’s submission concerning alcohol:
He emphasised again Mr Selby’s intoxication, which he says is relevant to the intent. ... He invited you to think of the circumstances in which it [the stabbings] happened. He emphasised the amount Mr Selby had drunk ... He asked you to consider Mr Lineham’s evidence as to how much was drunk by Mr Selby. He was described as being “really really drunk” at one stage.
[40] We also reject the submission that the claim of intoxication received inadequate attention. That is not borne out by the record.
[41] It follows that we reject the challenge to the verdicts on the basis that the Judge failed to properly direct the jury about the amount of alcohol Mr Selby had drunk and the effect of intoxication on murderous intent.
Provocation
[42] In his opening statements to the jury Mr Hart referred to the issue of provocation as a possible defence in very general terms. At the conclusion of the evidence the Crown sought a ruling on the defences of self-defence and provocation. Mr Hart requested that the matter be put off until after closing. That was unrealistic and Asher J rightly rejected that request. He heard from counsel. He ruled self-defence could be put to the jury but that provocation could not be put. Asher J delivered his reasons for that decision later. In the course of his decision the Judge noted that Mr Hart was not able to articulate a credible factual narrative to support provocation.
[43] Mr King submitted that provocation should have been left to the jury and that there was both a credible narrative for actual loss of self-control and also for the proposition that an ordinary person facing the level of provocation Mr Selby faced might have lost their self-control. He referred to the decisions of R v Timoti[14] and R v Rajamani.[15]
[14] R v Timoti [2005] NZSC 37 at [44].
[15] R v Rajamani [2008] 1 NZLR 723 (SC).
[44] Apart from a number of general background factors Mr King identified the following features of the evidence which he submitted supported a credible narrative:
(a)the deceased acted extremely aggressively towards the accused for no good reason and, with his group, followed them some distance before confronting them. In the meantime, fearing he was going to be robbed, Mr Selby had concealed his wallet and cellphone under a parked car;
(b)in the course of a nasty confrontation the deceased punched the appellant hard in the face and had to be restrained from inflicting more violence. Verbal threats, taunts and abuse flowed from the deceased. The accused ran away. The conduct of the deceased was bullying, demeaning and without any justification. It was both a terrifying and humiliating experience for the appellant;
(c)the appellant, who was extremely drunk and angry and couldn’t let it go, returned armed with the intention of recovering his property from under the car and, if the opportunity arose, scaring the deceased;
(d)when the deceased and his friend Mr Sussex were located the appellant set about to scare him with the knife, but in reality he was scared that if he did not do so, the deceased would inflict further violence on him;
(e)the deceased turned on the appellant and tried to hit him with a bottle of beer. At this point the accused, deprived of his power of self-control, “freaking out” inflicted the fatal blows.
[45] The following passage from R v Rongonui[16] is instructive on the issue of the test to apply when considering whether to leave provocation to the jury:[17]
It is useful now to examine the roles of Judge and jury in a case where provocation is in issue. The Judge must decide whether there is sufficient evidence to leave provocation to the jury. In a case not involving an asserted characteristic this task requires the Judge to decide first, whether there is evidence of conduct capable of amounting to provocation causing loss of self-control; and second, whether the provocative conduct is such that it might as a reasonable possibility have deprived an ordinary person of self-control. If there is evidence upon which the jury could answer both of these questions favourably to the accused, the defence should be left to the jury. They must then consider whether there was provocation causing loss of self-control and whether the provocation was sufficient to deprive an ordinary person of self-control. That decision must of course be made on the basis that the Crown has the onus of negating the relevant factors.
... Essentially at all stages the Judge has to decide whether as a matter of evidence and law the jury could find for the accused; the jury decides whether they should find for the accused.
[16] R v Rongonui [2000] 2 NZLR 385.
[17] At [232] and [233].
[46] In R v Fraser the Court posed the question whether there was, in the evidence, a credible narrative of conduct capable of amounting to provocation causing loss of self-control which might, as a reasonable possibility, have deprived an ordinary person of self-control. [18]
[18] R v Fraser [2008] NZCA at [18] – [19].
[47] These authorities highlight the Judge’s gate-keeping function in determining whether there is a sufficient evidential foundation for leaving provocation to a jury. It must be remembered that Mr Selby’s trial counsel was unable to point to any evidence in support. The Judge was himself placed in the unusual situation of having to attempt to identify a credible factual narrative given trial counsel’s inability to assist, even though counsel maintained that the defence was available.
[48] The principal difficulty for the appellant with this appeal point is that in his evidence at trial he effectively disavowed that he lost self-control and ruled out the application of s169(2)(b). His evidence not only does not support the narrative Mr King argues for but it contradicts it on material points.
[49] The only emotion the appellant described was of being scared. Mr Selby said that at the time of the first confrontation he was feeling scared and that after the blow to his head he and Darryl started running. He said he was running because he was scared and he ran away because he didn’t want to get attacked.
[50] Mr Selby then said that the reason he wanted to return was to get his phone and wallet which he had taken out before the confrontation and left under a car up the road. There was no suggestion in his evidence that he wanted to return because he was angry or had lost control, or that he wanted to go back and teach the deceased a lesson. As the Judge noted he was sufficiently in control to change out of his shirt and dress shoes.
[51] The appellant’s evidence was that it was Mr Fraser who went into his, Mr Fraser’s home, and returned with three knives. Mr Selby’s evidence about that is telling:
A. ... – he gave me a knife and he said, “Take this.”
Q. What did you do?
A. I said I didn’t want it.
...
Q. Did you want to go off with him at that stage?
A. I wanted to go get my stuff but I didn’t want to go with a knife.
That is quite contrary to the suggestion that Mr Selby had been provoked by the earlier assault and had lost self-control. On a number of other occasions during his evidence he rejected the suggestion that he wanted to get the knives.
[52] Importantly, after going to the car where his phone and wallet was, when the co-accused Mr Fraser said that he wanted to keep going (to find the men) the appellant’s evidence was:
I told him, I said to him, “Fuck it, let’s just go home, it’s not worth it” but he said that he wanted to keep going and he kept walking up the road and I went along with him so we kept on walking up Mellons Bay Road.
And:
... I didn’t want to go back up the road any further. All I was going up there for was to get my phone and wallet.
[53] When asked about why he drew the knife Mr Selby’s evidence was:
A.Well, Darryl said he wanted to go up to scare these guys so I was just, I was pulling it out so they knew that we had a knife and I was trying to scare them away.
Q.Did you want to be involved in a confrontation at this stage?
A.No, at this stage I was really apprehensive about the situation and I was still, I wasn’t thinking properly because I was drunk, obviously and I was, I was like, shit scared because.
[54] The appellant’s evidence then bordered on a suggestion of an accidental stabbing, at least in the initial confrontation. He said:
And then Mr Graydon, we were in the middle of the road and he just, he turned and stayed in the middle of the road and ran down the middle of the road towards the BP. And I chased after him with the knife ...
Q. And what happened?
A.We were running for about 5 or 10 metres, and he stopped, he suddenly stopped and he spun around and he had a bottle in his hand and I was still running towards him so I didn’t have time to stop myself, and he had the bottle and it was – he was, he swung it like that [it was then described].
..
A.And then my natural instinct was to, to just like push out at him with my other, my free hand and that was the hand that I had my knife in. And I struck him somewhere in the front of his body.
[55] That description is consistent with an accidental rather than provoked action. Mr Selby then said the deceased went down, and described a full bowing position. He then said:
A. I was, I was just, at this stage I was just like, freaking out like I didn’t – like it was just happening so fast and I didn’t like, know what was, like, really going on, like, he was down and he was like, pushing me and I still had the knife and I was just lashing out at him, I didn’t know where or how many times or even if I was connecting with him but I can’t accurately remember like, what happened like, right at that time.
And later:
I only chased him for like five or 10 metres to try and scare him away and make him think that I was serious but I didn’t actually wanna use the knife, I was just trying to scare him.
Importantly the appellant also said:
I didn’t want to get revenge. I was only going up there to first of all get my phone and wallet and then Darryl wanted to keep going and then I thought we were just going to scare them. I was never thinking of getting revenge or of actually having to use the knife to hurt somebody.
[56] Against that evidence from the appellant it is hardly surprising the Judge concluded there was no evidence to support the claim that the accused had lost self-control.
[57] Despite that evidence, Mr King submitted that the co-accused, Mr Fraser’s evidence provided support for provocation and that Mr Fraser gave evidence supportive of provocation on the part of Mr Selby. Mr Fraser’s evidence included observations that Mr Selby:
just looked angry and pissed off;
He stormed off past me and he did end up saying that he’d been punched and the person that punched shouldn’t just get away with it;
... he said he’s going to scare the shit out of the people.
And then later:
He was still angry, he’d not calmed down at all.
[58] We agree with the general proposition that the credible narrative for provocation can come from a number of sources. If the accused had, either in his statement to the police or in his evidence, given evidence to support a credible narrative, (or at least not inconsistent with it), evidence of the nature of Mr Fraser’s, the co-accused, might support the defence of provocation. Where, however, Mr Selby’s evidence is inconsistent with any loss of control, and Mr Selby’s defence involved an attack on the credibility of his co-accused, Mr Fraser, there is no foundation to suggest that the Judge was required to leave provocation with the jury on the basis of Mr Fraser’s evidence.
[59] Further, Mr Fraser’s evidence is equivocal at best. While he describes anger and says the appellant decided to go back and scare them that evidence is insufficient to support a finding the appellant was deprived of the power of self-control.
[60] Next Mr King submitted that self-induced intoxication may be relevant to the inquiry whether the accused actually lost the power of self-control. It may be, but intoxication is not a special characteristic and, in any event, the judge was very well aware of the intoxication issue.
[61] The Judge was right to conclude that there was no credible narrative of loss of self-control.
[62] That is an answer to this point of appeal. But the appellant cannot succeed with the second element for provocation either. Mr King referred to the case of R v Campbell[19] noting that loss of the power of self-control does not require the conduct to be involuntary. He submitted that the actions of the deceased (on Mr Selby’s evidence) of abusing and challenging the appellant, punching him in the face and later lunging at him with a bottle could all amount to acts of provocation which could have caused an ordinary person to be deprived of self-control. He submitted the Judge should not have related consideration of the loss of power of self-control back to what the accused actually did in this case, namely to stab the deceased five times.
[19] R v Campbell (1997) 15 CRNZ 138 (CA). See also R v McGregor [1962] NZLR 1069 (CA).
[63] We agree with Mr Chisnall that the appellant’s reliance on the distraction of proportionality discussed in R v Timoti[20] is taken out of context when he asserts the Judge solely focused on the way in which Mr Selby acted vis-à-vis the actions which would have been manifested by a hypothetical ordinary person. The Judge was entitled to conclude, on the evidence before him, that putting the issue of self-defence to one side, the appellant would not have killed the deceased had he exercised the self-control of an ordinary New Zealander: R v Rogers.[21]
Provocation and revival
[20] R v Timoti [2005] NZSC 37.
[21] R v Rogers [2009] NZCA 387, (2009) 24 CRNZ 276 at [36].
[64] Mr King sought to bolster the argument for provocation by referring to the possibility that the earlier provocative act of the punch was revived when the accused caught up with the deceased and the deceased confronted him with a bottle.
[65] We accept that the concept of revival of provocation may be possible in certain circumstances. It is different in nature to the situation discussed in the case of R v Erutoe[22] referred to by Mr Chisnall, where an accused may still be affected by the initial loss of self-control. In the present case, it cannot be said the appellant was still affected by the earlier act as on his own evidence he was under control again (assuming for argument’s sake he had lost it) when he returned to collect his wallet and keys.
[22] R v Erutoe [1990] 2 NZLR 28 (CA).
[66] However, actual revival of provocation will only apply in rare circumstances. An example of such rare circumstances is the case of R v Taaka.[23] In that case the accused and the deceased were cousins and good friends. On 31 November 1981 an incident occurred between the deceased and the accused’s wife, which the accused construed as an attempted rape. That formed the motivation for the killing. Some days later on 11 December the accused and the deceased got into a fist fight. The accused left with others but he procured a shotgun in a 42 kilometre round trip. He went back to the party where the deceased was. There was a scuffle and he was dispossessed of the rifle but then regained possession of it, went up to the deceased and shot him at point blank range.
[23] R v Taaka 1982 2 NZLR 198 (CA).
[67] The trial Judge refused to leave provocation to the jury. In doing so he had refused to accept expert psychiatric evidence which indicated the appellant had a characteristic which caused him to brood for longer than a normal person. In allowing the appeal, this Court said:[24]
We do not propose to detail the psychiatric evidence further. We think that it is capable of supporting an inference that the appellant's characteristics could cause him to feel the insult of [the deceased’s] conduct unusually deeply and impel him to lose self-control and take public revenge for an insult publicly known. Counsel for the Crown indeed accepted in this Court that it would be evidence of "characteristics" relevant under s 169(2)(a).
[24] At 201–202.
[68] The Court held, despite the issue being finely balanced, that there was “just enough” to have allowed provocation to go to the jury in that case. As noted the case for revival was only available because of the appellants’ involved special characteristics and the expert medical evidence.
[69] In R v Mita[25] the appellant had a longstanding homosexual relationship which he kept secret. In February 1995 an acquaintance discovered the appellant and his partner in a public toilet. The partner fled leaving the appellant to face the acquaintance’s abuse. The appellant believed the whole town knew of his homosexuality and left Gisborne for Auckland. He returned on 5 April. His partner gave him money but told him the relationship was over. In the next five days the accused told his brother and mother of his homosexuality, visited friends and family and was taken to counselling by his brother. On 10 April he collected a shotgun and sought out his former partner, eventually finding and killing him. At trial he claimed his position as an eldest Maori son rendered him especially vulnerable to feelings of rejection and that his delusion that all of Gisborne was ridiculing him exacerbated this.
[25] R v Mita [1996] 1 NZLR 95 (HC).
[70] Fisher J held that in relation to the “actual accused” test under s 169(2)(b), there was no evidence from the accused that the reason he killed was that he was in a state of uncontrollable anger, still less than that he had been in such a state since the earlier toilet or rejection incidents. Rather, in the interim period he had performed many tasks that were quite incompatible with the notion that he remained in a state of uncontrolled anger throughout that period. On the s 169(2)(a) test Fisher J held that even with the characteristics of the accused:[26]
I do not think a jury could find that even with those added burdens the ordinary person would have reacted to the toilet incident and the subsequent rejection by the deceased with a loss of control of the nature alleged to have occurred here.
[26] At 109.
[71] Both R v Taaka and R v Mita were cases where special characteristics and/or medical evidence were present to support the argument for revival of the provocative act. But in the absence of such features or evidence in this case to show that the accused was more likely to hold onto the provocative act the revival argument cannot be sustained, even if, contrary to our above finding, Mr Selby’s evidence could be said to be consistent with a loss of control when the deceased was stabbed.
[72] We conclude the Judge was right to decline to put provocation to the jury.
Severance
[73] Mr King did not orally address the remaining grounds of appeal, namely severance, the juror and majority verdict issues, but was not able to abandon them either. He relied on his written submissions.
[74] As Mr Selby’s application for severance was declined prior to trial the appeal could only succeed on the ground that severance should have been granted if the appellant is able to establish a miscarriage of justice by reason of the refusal to sever: s 385(1)(c).
[75] The principal reason advanced in support of the application for severance was the prejudicial effect of Mr Fraser’s second evidentiary interview in which he inculpated himself and attributed to Mr Selby responsibility for the appellants’ decision to arm themselves and seek out the deceased. That evidence was of course inadmissible against Mr Selby and the Judge directed the jury accordingly.
[76] In his written submissions Mr King also submitted that as each accused engaged in cut-throat defences at trial and sought to blame the other, the reality was that each would have had a much better chance had they been tried alone. That may well be so, but it is not the test for severance. As Mr King properly accepted, where there is an alleged killing or an assault committed by people acting in concert, there should be a joint trial unless to do so would be antithetical to the interests of justice. As this Court recently noted in R v Fenton:[27]
What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime. The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally. This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury. That is the usual problem in a joint trial from the accused's perspective. When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.
[27] R v Fenton CA223/00, 14 September 2000 at [25].
[77] The comments of this Court in Fenton are directly applicable to the facts of this case. The decision declining severance was undoubtedly correct. The fact that during the course of trial both parties sought to blame each other has not led to a miscarriage in this case.
The juror issue
[78] The juror issue arose on the second day of the trial. A juror alerted the Judge to the fact that he had a daughter in the same year at Pakuranga College as the accused. Having heard from the juror, Mr Hart maintained his request for the juror to be discharged. The Judge declined to do so and set out his reasons in a ruling. The next morning a further communication was received from the juror advising that his son had also attended the same school and was in the same tutor group as Mr Fraser (in fact it seems it was Mr Selby). An application was again advanced by Mr Hart to have the juror discharged. The Judge again declined it.
[79] Mr King submitted that the juror may have “psychologically” been prejudiced against Mr Selby or else felt under pressure to convict. With respect that is entirely speculative.
[80] In R v Tainui[28] this Court confirmed the appropriate test whether a juror’s conduct or association with a party to the case was such that the juror should be discharged was whether the juror’s conduct gave rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the jury or juror would not discharge their task impartially. This Court then went on to refer to the decision of the High Court in Australia in Webb v R[29] to confirm that a high threshold is required to establish an allegation of bias. That high threshold is not met in the present case.
[28] R v Tainui [2008] NZCA 119.
[29] Webb v R (1994) 181 CLR 41 at [25].
[81] When the issue was raised, the Judge dealt with the matter appropriately by speaking to the juror in the presence of counsel on both occasions. The Judge was undoubtedly correct to conclude that the juror was not personally concerned in the facts of the case or closely connected with a party or witness or prospective witness. As he observed it was a most peripheral connection. There is no merit in this ground of appeal.
The majority verdict
[82] The last ground of appeal raised on behalf of Mr Selby is that the Judge should not have exercised his discretion to accept the majority verdicts that were returned in this case.
[83] Mr King accepted that, as a matter of law, the Judge had jurisdiction to accept majority verdicts in this case. But he submitted that, in the exercise of the discretion contained in s 29C(2) of the Juries Act 1981, the Judge should have declined to accept majority verdicts as a matter of fairness and to avoid retrospectivity because as at the date of the offence and the charge the appellant could not have been convicted on majority verdicts.
[84] That submission cannot succeed because it seeks to rewrite the express provisions of s 19(4) of the Juries Amendment Act 2008:
This section applies only to any trial for which the jury is constituted on or after the date on which the section comes into force.
There is no issue that the jury in this case was constituted after the Act came into force.
[85] The discretion in s 29C(2) is provided to ensure that, before accepting majority verdicts, a Judge must satisfy him or herself that majority verdicts are appropriate in the circumstances of the particular case, in particular, that the jury has been deliberating for a sufficient time having regard to the nature and complexity of the trial. By the time the Judge accepted the majority verdicts the jury had been deliberating for well in excess of the four hour period referred to in the Juries Act. They had gone out at lunchtime on 14 December and verdicts were returned at just after 4.00 p.m. the next day. We also note that trial counsel did not argue against the Judge’s proposal to accept majority verdicts when the issue was raised at trial. Again there is no merit in this point.
Sentence appeal
[86] Mr Selby appeals against the imposition of a minimum non-parole period of 11 years. Mr King submitted that the minimum term of 11 years was manifestly excessive having regard to Mr Selby’s age, the absence of previous convictions, the conduct of the deceased and the circumstances under which the crime was committed.
[87] Section 103(2) applied. The sentence to be imposed was required to be the minimum term necessary to satisfy the following purposes:
·holding the offender accountable for the harm done to the victim and community;
·denouncing the conduct in which the offender was involved;
·deterring the offender or other persons from committing the same or similar offences;
·protection of the community.
[88] In concluding an 11 year minimum non-parole period was required to satisfy the above purposes the Judge accepted that Mr Selby armed himself with a knife with Mr Graydon in mind and that his actions were premeditated and deliberate. The stabbing was not spontaneous. The Judge also considered that the deceased was vulnerable in that a number of the stab wounds were to his back and he was stabbed while running away. Finally, the Judge noted the effect on the victims and particularly the deceased’s family was substantial. The Judge concluded that a period of 12 years was otherwise called for, but accepted that Mr Selby’s youth and his previous good character supported a reduction of one year.
[89] The imposition of a period of more than the minimum 10 year period was available to the Judge in this case. An uplift of one year was modest and cannot be described as manifestly excessive. It was within a range available to the Judge. The appeal against sentence must be dismissed.
Suppression
[90] At the conclusion of the trial and sentence before Asher J, Mr Fraser faced trial on an additional charge(s) of assault. He was due to go to trial in early 2010. For that reason he was granted name suppression pending trial on those charges. Mr Selby was also granted name suppression, largely to protect Mr Fraser, because of the known association between Mr Selby and Mr Fraser.
[91] Mr Wilkinson-Smith advised that the charges against Mr Fraser have been dealt with, with guilty verdicts returned. Despite that, he sought the continuation of name suppression because there will be an appeal and, in his submission, there is a possibility of a retrial in the future if the appeal is successful.
[92] Mr Fraser’s position now is quite different to that which it was before Asher J. Mr Fraser has now had his trial on the outstanding charge(s). A jury has found him guilty. If his appeal is ultimately successful then any retrial would be some time away.
[93] There is no basis to support continued name suppression. The name suppression of both appellants is to lapse upon the issue of this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
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