Marong v The Queen - [2018] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA242/2018
[2018] NZCA 531

BETWEEN	SAINEY MARONG Appellant
AND	THE QUEEN Respondent

Hearing:	2 October 2018
Court:	Miller, Woolford and Collins JJ
Counsel:	Appellant in person M J Lillico for Respondent F E Guy Kidd as counsel assisting
Judgment:	28 November 2018 at 2.15 pm

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is declined.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Marong was convicted after trial of the murder of Renee Duckmanton.[1] He admitted killing her. His defence was insanity. Neither of the experts who gave evidence at trial considered him insane. On appeal, he says that the verdict was wrong.

The bare facts

[1]R v Marong [2018] NZHC 748.

Ms Duckmanton was a sex worker. On the evening of 14 May 2016 Mr Marong picked her up from a central Christchurch street. He took her to the outskirts of the city, where he strangled her. He dumped her body on a roadside the following day, dousing it and setting it on fire. His semen was found in her vagina. His internet browsing history indicated that the offence was planned. He had researched kidnapping, information about local sex workers, how to render someone unconscious, necrophilia and destroying DNA traces by burning a body. In conversations with Corrections staff while on remand he admitted to following a different sex worker on a previous occasion because he had a “desire to kill”, and he explained that he chose prostitutes because they were “slaves”.

The trial

There was very little dispute about the narrative facts at trial. Mr Marong gave evidence, claiming that he argued with Ms Duckmanton after having sex with her and, in an agitated state, he compressed her neck to shut her up. He claimed that he did not know what he was doing. The jury plainly rejected this account, which if true might preclude murderous intent.
The focus of the defence was insanity, which the Judge left to the jury over some resistance from the Crown (which had contended there was no foundation for it). The defence case, advanced by experienced counsel, Mr Krebs, was that Mr Marong, who is diabetic, had not been taking his insulin and was accordingly likely to be hypoglycaemic, with the result that he did not understand the nature and quality of what he was doing. Counsel emphasised evidence of strange behaviour by Mr Marong over a number of weeks preceding the killing; apart from his bizarre internet searches, he was having trouble sleeping and he was obsessed with obtaining a sheep for slaughter on the day of the killing. The Judge observed that there had been no expert evidence for the defence, but there was some evidence (from the pathologist, Dr Katherine White) that diabetes could affect mental functioning. He accordingly ruled that:
… expert evidence had been given that a lack of insulin required…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marong v The Queen

Details

AGLC: Marong v The Queen [2018] NZCA 531
Case: [2018] NZCA 531
Decision Date: 28 November 2018 at 2.15 pm

CaseChat Overview and Summary

In the case of Marong v The Queen, the appellant, Sainey Marong, appealed against his conviction for the murder of Renee Duckmanton, with the defence of insanity. Marong admitted to killing Duckmanton but claimed that he was not guilty due to insanity. The New Zealand Court of Appeal, consisting of Miller, Woolford, and Collins JJ, heard the appeal on 2 October 2018. The appeal was dismissed on 28 November 2018. The court declined the application to adduce further evidence on appeal.

Marong's primary ground of appeal was that the test for insanity was lower than that adopted by the trial judge. Marong argued that the test under other legislation, such as the Mental Health (Compulsory Assessment and Treatment) Act, should apply. However, the Court of Appeal held that the standard for criminal liability was set by s 23 of the Crimes Act, and other legislation served different purposes. The trial judge's directions were consistent with the case of R v Cottle, which established that the meaning of "disease of the mind" may bear is a question of law for the judge.

The Court of Appeal rejected Marong's submission that a standard of proof lower than the balance of probabilities applied under s 23(3) of the Crimes Act. They held that the onus of proving insanity lies on the accused, and the standard is the balance of probabilities. The Court concluded that the jury's decision that Marong was not insane was not unreasonable, given the unequivocal expert evidence that he suffered from no disease of the mind and was able to understand the nature and quality of his acts and to distinguish right from wrong.

The Court of Appeal also dismissed Marong's other grounds of appeal, including his claim that he was treated with hostility at trial and was the subject of discrimination in the form of racial harassment. The Court found these submissions to be untenable.

Orders