Martin v The Queen
[2005] NZCA 3
•14 February 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA199/04
THE QUEEN
v
LESLEY JANE MARTIN
Hearing:1 November 2004
Court:Anderson P, McGrath and O'Regan JJ
Counsel:D L Stevens QC for Appellant
J C Pike and A F D Cameron for Crown
Judgment:14 February 2005
JUDGMENT OF THE COURT
The appeal against conviction is dismissed. The appeal against sentence is dismissed.
Table of Contents
Para No
Introduction [1]
A book and its consequences [9]
The trial and the opinions of witnesses [25]
What was relevant? [36]
Intent – law and unrelated disciplines – irrelevancies [40]
Inappropriate opinion evidence [49]
Putting the defence case [58]
Other aspects of putting the defence case [66]
Mistake? [80]
Balance [87]
Intent and stress [88]
Application of the proviso to s 385(1) [111]
The sentence appeal – the Judge’s reasons [123]APPELLANT’S SUBMISSIONS [138]
The Crown response [157]
Discussion [160]REASONS
(Given by Anderson P)
Introduction
[1] In March 2004 the appellant was tried before a High Court Judge, Wild J, and a jury, on an indictment which alleged two counts of attempted murder in the following terms:
1. THE CROWN SOLICITOR at Wanganui charges that LESLEY JANE MARTIN at Wanganui on the 27th day of May 1999 or thereabouts, did attempt to murder JOY PATRICIA MARTIN by administration of the drug, morphine.
2. THE CROWN SOLICITOR at Wanganui charges that LESLEY JANE MARTIN at Wanganui on the 28th day of May 1999 or thereabouts, did attempt to murder JOY PATRICIA MARTIN by suffocation.
[2] The appellant was acquitted on count 2. She was convicted on the first count and sentenced to 15 months imprisonment with leave being granted to apply for home detention. She now appeals against conviction and sentence.
[3] Joy Patricia Martin was the appellant’s mother who, at the times alleged in the indictment, was suffering from terminal cancer. Her death occurred on 28 May 1999.
[4] The appellant is a registered nurse with some 17 years experience in her profession. She was living overseas when, at the end of 1998, she learned that her mother had recently been diagnosed with bowel cancer. Joy Martin underwent an operation but there were post-operative complications which involved re-admission to hospital. She was finally discharged to her home on 24 April. There the appellant cared for her, as she had done at hospital, until Joy Martin died.
[5] Within hours of the death the police began making inquiries. One of the members of the police was Detective Sergeant Ross Grantham, who interviewed the appellant at Joy Martin’s residence. He spoke privately to the appellant on the basis that the discussion would be off the record. Otherwise she would have received the usual caution and been informed of her rights under the New Zealand Bill of Rights Act. The appellant agreed to discuss the matter with Detective Sergeant Grantham off the record.
[6] Following that discussion the police officer arranged for another officer, Senior Sergeant Kura, to come into the room. He then asked the appellant if she would go with him to Wanganui Police Station to make a statement. She declined.
[7] A few days later Detective Sergeant Grantham arranged with the appellant’s then counsel, John Rowan QC, for an appointment to interview the appellant on 3 June 1999. On that date, however, the appellant again declined to make a statement.
[8] On the advice of a detective inspector, Detective Sergeant Grantham then committed to writing his recollection of the conversation which had taken place off the record. He sealed his notes in an envelope and attached it to his file, leaving it unopened until some years later, after the appellant had been charged and appeared at a deposition hearing. He then gave evidence of what had been said between him and the appellant in their “off the record” conversation.
A book and its consequences
[9] The appellant had, in the meantime, written and published a book, entitled “…to die like a dog”, in which the appellant herself related matters which were essentially what she had disclosed to the detective sergeant. He revealed what she had told him because he considered her publication of the matters they had discussed amounted to a waiver of the confidentiality in which the discussion had taken place. There was no challenge to the admission of the detective sergeant’s evidence at trial, nor any serious challenge to the essential accuracy of his recollection beyond eliciting a concession that the detective sergeant did not assert it was “an entirely accurate record”. But he was confident that what he recorded was accurate.
[10] The appellant had told the detective sergeant that as her mother’s illness got worse her mother was on a number of medications. On one occasion, while in hospital, her mother had asked her to help end her life; to help her commit suicide using the pills she was prescribed. The appellant said she was really disturbed by her mother’s request and she told her mother she could not do it. Her mother was determined and the conversation ended with the appellant agreeing that should her mother’s condition get to the point where she had no quality of life, then the accused would help her go.
[11] Of particular significance in the course of the conversation on 28 May 1999, was the appellant’s information that her mother had been prescribed 10 milligrams of morphine over a 24 hour period; that extra ampoules of morphine had been made available to the appellant should her mother require more for extra pain management; that her mother was in real pain; and that it was impossible for the appellant to sit and watch her mother slowly die a painful death.
[12] According to the police notes, the appellant said that the night before the previous one she had given her mother 60 milligrams of morphine as well as the 10 milligrams prescribed by the doctor, and that she thought this would end her mother’s suffering. She said that the following day her mother had received a visit from Wiki Alward, who was a hospice nurse, and that she had told Wiki she had given the morphine to end her mother’s suffering. She also said that the night prior to the conversation with the detective sergeant she had given her mother the last of the morphine, had then taken her mother’s favourite pillow and cuddled her mother with the pillow until her mother passed away.
[13] In July 2000 and August 2002 Detective Sergeant Grantham met the appellant at her request. She told him she had written a screenplay entitled “Love Joy”. She lent him the manuscript. The detective sergeant considered the manuscript was as accurate as he could recall the contents of the confidential conversation he had had. At the meeting of August 2002 the appellant advised the detective sergeant that the manuscript had not been accepted as a screenplay or TV movie, that she had set up her own publishing company and was going to publish the book. Detective Sergeant Grantham told her that if she published the book the police would reopen the investigation into her mother’s death. The appellant said she had received the same advice from her solicitor.
[14] As we have mentioned, the book was subsequently published. On the front cover, under the title, appear the words “a mother, a daughter, a promise kept…”. The title of the book is repeated on the flyleaf over the words “The personal face of the euthanasia debate”. In a foreword the appellant asserts that her writing is a true story.
[15] The narrative of the book traces the deterioration and distress of Joy Martin, her request to the appellant not to let her lie there, not alive and not dead but to help her, to be quick; her promise to her mother that she would know when it was time, that she would not leave her suffering. This she promised.
[16] As to the first count in the indictment, the appellant described taking morphine ampoules from their box, breaking the glass necks and drawing the contents into a syringe and injecting the contents into her mother’s thigh. Her account appears at 154-155 of her book in the following terms:
Joy is unconscious… When she glances back up to Joy’s face, she stiffens…another rivulet of blood is trickling from Joy’s mouth. An intense, long moment follows, where Lesley just sits alone with her mother…stroking her face…then…She slowly takes the morphine ampoules from their box and breaks the glass neck of each in turn. Hands shaking, she draws the contents of each into a syringe and taps the air from the barrel. She places the loaded syringe on the dressing table and backs away from the bed, away from her mother, as far away as the bedroom walls will allow and stands stiffly against the wall, amongst the birthday cards, hands clasped tightly in front of her. For a long time, she just stands there in the corner like a child until the next trickle of blood appears…and, in an instant, she’s scrambling for the syringe. She injects its contents into Joy’s thigh and tucks the blankets in warmly around her mother again, hands shaking.
[17] Later in the book she describes the incident with the pillow which founded the second count in the indictment. She relates a discussion with a police officer, obviously Detective Sergeant Grantham, in terms which include the following description of what she says she did:
I’d promised her I’d help her … I’d promised I wouldn’t let her lie there … I promised … so I gave her all the morphine I had, and she kept going, and Norma said she could live for days … living off her own flesh … and I couldn’t do that to her … I’d promised … and there was nothing else I could do … there is no help when there’s no hope. I picked her up and held her against her pillow … tight … tight … I didn’t know what to do any more … I promised … I kept my promise.
[18] The reference to Norma is plainly a reference to Wiki Alward. Just as there is a material coincidence between Detective Sergeant Grantham’s evidence of what the appellant told him off the record and the appellant’s description in her book of that conversation, so there is a material coincidence between a discussion the appellant had with Wiki Alward, according to the latter’s evidence, and the description of that conversation in the appellant’s book.
[19] In her evidence Nurse Alward said that the appellant told her about administering 60 milligrams of morphine and when Nurse Alward challenged her about this she said that her mother did not have increased pain; she had given her the medication because her mother had said she did not want a slow painful death, and that the appellant did not want that either. The appellant told Nurse Alward that she and her mother had discussed euthanasia. The witness had told the appellant that what she had done was in fact a crime, that she had broken the law and breached the trust between herself and the general practitioner who was attending her mother.
[20] The day before Joy Martin died a family friend, Pamela Ward, who knew that Joy Martin was dying, rang the appellant and asked if Joy was still there. She said the appellant replied “Yes, I couldn’t have given her enough”. The witness was taken aback and shocked by this information. With reference to Joy Martin she noted in her diary “Overdose last night??”.
[21] The appellant’s sister, Louise Britton, made a written statement which was read at trial. She recounted a discussion on 29 May in which the appellant referred to a conversation with Joy Martin about euthanasia. Whilst aspects of the conversation were equivocal as to intent, there was another occasion, following the publication of the book, when the appellant had said that she had seen a tear in her mother’s eye and that is what pushed her overboard to do it.
[22] In February 2003 Detective Sergeant Grantham bought a copy of the appellant’s book and about two weeks later, on 6 March 2003, he returned to Wanganui, went to the appellant’s address and executed a search warrant. The appellant handed over notebooks, a manuscript and a CD rom disk, all of which related to the development and publication of “to die like a dog”. In a statement at Wanganui Police Station the appellant acknowledged she had written the book. When asked whether it was a true account of what happened with her mother and how she died, the appellant replied “Yes, with a degree of literary licence”. She confirmed, however, that the passages in the book dealing with the events on which the indictment counts were founded, were correct. Amongst other things, she said that “to keep a promise to someone, to help them die, peacefully and painlessly, was illegal”, and indicated that she had kept the matter secret because she knew what she was doing was illegal. She said she had given her mother the 60 milligrams of morphine thinking it would end her mother’s life. When informed that she was about to be arrested and charged with attempted murder she replied “I am not a murderer, helping someone to die whom you love according to their wishes is not murder”.
[23] The scientific evidence relating to the cause of Joy Martin’s death was not sufficient to support a charge of murder in relation to either of the acts referred to in the indictment. But there was sufficient evidence to commit for trial for attempts to murder.
[24] It is difficult to imagine a case where an accused has made so many deliberate, repetitive, detailed, private and public admissions of conduct carried out in the knowledge of its criminality. It is not surprising therefore that having elected to defend the prosecution, the appellant found herself constrained to defend on the basis that her admissions were untruthful or, as her counsel put it to this Court on appeal, unreliable. She did not, however, recant those admissions or her description of them as truthful.
The trial and the opinions of witnesses
[25] At trial the defence called Dr Richard Owens, a Professor of Forensic Clinical Psychology. Having given his qualifications, he was asked by defence counsel to comment on what part a principle, known as “double effect”, plays in the care of terminally ill people. Professor Owens explained the matter in terms of an ethical principle that if a course of action would have good and bad consequences but the intention was to achieve the good consequences, then the unavoidable associated bad consequences may be ethically acceptable. In the context of palliative care for patients at, say, a hospice, it is quite common for a physician to administer morphine with the intention of relieving suffering by controlling pain even though the process will have the effect of shortening life.
[26] Later in his evidence Professor Owens was asked by defence counsel to explain the term “cognitive dissonance” which appears to be a term used in the science of psychology and possibly psychiatry, relating to the functioning of the mind when a person may experience a conflict between inclination and obligation. According to the witness, memory as to what happened and the motive for it, may be distorted in the subject’s mind. Asked to give an example, Professor Owens described someone being opposed to helping someone end their life, having been asked by that person to do so. He said the person may then perform some action in that respect which the subject knew would not in fact end life but which could later be resolved in the mind by saying “At least I tried”. This could result in a belief that there had been compliance with a request in part, without contravening the subject’s principles. He explained that the subject could genuinely believe not only that something had happened which had not, but which was motivated differently from actuality.
[27] Professor Owens then related that hypothesis to his understanding of the case in hand. In response to an invitation from Mr Stevens, he expressed a view that the probability of it having happened was high.
[28] Professor Owens then moved on to express his opinion about the effects of stress, particularly sustained stress. When asked what effect extreme stress could have on thought processes, he expressed the view that it can lead to people making decisions they would not make in a calmer, more reasoned frame of mind, switching off their emotions and reasoning faculties and acting in a mechanical way, mostly without conscious thought.
[29] The particular relevance of the evidence about stress was the possible effect on the appellant of the stressful circumstances of caring for a loved mother in the terminal stage of her illness and, according to the admissions, under a promise to assist her mother’s death. The defence submitted to the jury that on the two nights in question the appellant was so severely stressed and utterly exhausted as to be incapable of forming any intention to kill and that she was acting mechanically without conscious thought, in the way Professor Owens described.
[30] The Crown sought leave to adduce rebuttal evidence, particularly in relation to cognitive dissonance. Following a voir dire, leave was given by the Judge.
[31] The Crown witness was Philip Brinded, a Clinical Associate Professor of Psychiatry who had been a consultant forensic psychiatrist for some 18 years and had extensive qualifications in his speciality. He explained that he had been declined permission to interview the appellant and noted the limitations of this, not only in relation to himself but in relation to Professor Owens who had never met the appellant before being called to give evidence.
[32] He understood the concept of cognitive dissonance to be a state of psychological discomfort when a person has two different cognitions or thoughts that contradict each other. A result can be that the mind seeks to resolve the conflict by changing attitudes or behaviours to the point where the thoughts do not conflict so much. This is not a process of mental disorder in any sense but is an every day function of the human brain.
[33] Professor Brinded observed as follows in the course of cross-examination:
Notwithstanding the fact I haven’t had the opportunity to examine Lesley Martin, from my understanding of cognitive dissonance I have no issue or doubt that concept applies here, it took place. Given the situation she was in. My evidence has been experience and external advice I gained about the association between that and memory distortion and I gave the evidence as best I can to assist the court and accept other experts may have a different view.
So you say that you have no doubt that Lesley Martin was subject to cognitive dissonance? My reading of the evidence would certainly suggest she was faced with significant conflicting thoughts about her situation and that of her mother. So yes I am sure that took place.
[34] Later, in response to the questioning from the bench the following exchange occurred.
BENCH: Can I try and draw this together for the jury, is the result of what you have been saying that a person who has, undergoes cognitive dissonance, does not forget or have a distorted memory but rather they rationalise away from what happened from their recollection and they adopt a different attitude or behave in a different way?…Yes, I think that pulls it together. It’s where behaviour is affected by the process of cognitive dissonance, it’s that somebody changes their behaviour in order to resolve that conflict of thoughts, so that they change their attitude and behaviour to get closer to either one side of the conflict or the other.
[35] As we have mentioned, neither Professor Owens nor Professor Brinded had the benefit of a clinical examination of the appellant to inform their opinions. Nor did they even have the benefit of hearing the appellant testify. She elected not to give evidence. This was her undoubted right, but the result is a somewhat contradictory position. On the one hand, there is the clear account in her book and the many statements that what she says in the foreword to her book is a true story. On the other hand, without having offered a denial or retraction of those disclosures, she defended herself at trial on the basis that what she said was unreliable. That is, the jury should not accept her admissions as essentially true. Such a stance raises a significant risk of speculation, a matter which the Judge’s summing up indicates he was acutely aware of.
What was relevant?
[36] In summing up the Judge cautioned the jury about relevance. He said it was not for counsel nor for him to decide what evidence was relevant but for the jury as judges of fact. That observation has been criticised on the appeal, by Mr Stevens, on the grounds that it was a misdirection. In counsel’s submission, relevance is a condition of admissibility and admissibility is a matter of law for the Judge. The jury’s task is to assess credibility and weight, not admissibility.
[37] In any trial, particularly one lasting more than a short time, many matters may be put in evidence as possibly relevant to issues. But as the trial develops their significance may vary, to the point that some of the evidential material is no longer of any real relevance at the end of the trial. The particular case went for more than two weeks and dealt with what should have been relatively uncomplicated issues. If, as was manifestly the case, it appeared to the Judge at the end of the trial that some matters had proved to have little or no relevance, we see no reason for us to assume otherwise. The fact that evidence may be admitted as seeming relevant to an issue at one stage, does not mean it will necessarily have any real relevance upon close analysis of the case when the issues have become more focused.
[38] In any event, the small portion of the summing up criticised by counsel has been taken out of context. It is not just the second sentence of [8] of the summing up which requires consideration but [7]-[10] inclusive which we reproduce below.
[7] That leads to the second important point I make to you. It is about the evidence. You have heard a lot of it. At times during this trial you might have asked yourselves why certain evidence was being called. You might have been a little confused, thinking that because the evidence was being called it must be relevant, even though you were asking yourselves – and perhaps asking each other – what really has this evidence got to do with it? How can this really help us reach our verdicts?
[8] May I resolve any confusion on that front. The mere calling of evidence in a criminal trial does not necessarily make it relevant. It is not for Mr Cameron and Ms Lamont-Messer, nor for Dr Stevens, nor for me, to decide what evidence is relevant. That is for you as the Judges of fact in this trial.
[9] Although it is a matter for you, you might find it helpful to take this approach in dealing with the evidence:
[a] First, decide what evidence is relevant and what is not. Sift out and discard evidence which you do not find relevant or helpful.
[b] Secondly, once you are left with the evidence you consider relevant and helpful to your task, decide whether you accept it or believe it, either in whole or in part, or reject it – again wholly or partly – as neither credible or reliable. And, of course, you do that with the aim of deciding whether you are satisfied that the Crown has proved each of the two charges the accused faces.
[10] I anticipate that that exercise may result in your being left with a relatively small amount of evidence that you find relevant and helpful. I will identify for you evidence which you might find important, and of course counsel addressing you yesterday did the same. But it follows from what I said to you that, if you don’t accept what I say about the evidence or the facts, or don’t accept what counsel said to you about them, and the emphasis they put on them, then you should ignore us. You are the Judges of the facts. You decide what evidence is relevant and what is not, and upon that evidence you decide what facts you find proved and what you do not.
[39] In the circumstances of the case we think the criticism is unjustified.
Intent - law and unrelated disciplines - irrelevancies
[40] Other grounds of appeal are that the trial Judge misdirected the jury in respect of intent, including in relation to the effect of stress and exhaustion. We shall return to those directions later in this judgment but think it convenient at this stage to deal with additional grounds of appeal relating to the evidence of Professor Owens and Professor Brinded.
[41] Mr Stevens submitted that the Judge misdirected the jury in relation to “double effect”. The particular direction was:
[54] One point here. You have heard in this trial about the doctrine of double effect. That exempts a doctor from criminal liability if a doctor administers painkilling drugs to a patient for the primary purpose of relieving their pain, even though the doctor knows that an incidental effect of administering those drugs will be to shorten the patient’s life. As a matter of law, I direct you that that doctrine is not available to the accused, because she is not a doctor. You therefore need not concern yourselves with it any more.
[42] Counsel for the appellant submitted that this direction may have given rise to an assumption on the part of the jury that even if the appellant’s primary purpose was to relieve pain, there would still be an intention to kill if she knew that the injection could shorten her mother’s life. It was submitted that the direction suggested it is only in the case of doctors that otherwise could not be the case. This made it necessary, in counsel’s submission, for the Judge to direct the jury in terms which would ensure that they did not conclude that mere foresight of possible shortening of life would, of itself, equate with intention. Counsel submitted that an appropriate direction may be found in a decision of the English Court of Appeal, R v Nedrick [1986] 3 All ER 1, at 3-4:
If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he exposed the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.
[43] The accused in Nedrick had been convicted of murder in circumstances to which the New Zealand provisions in s 167(b) Crimes Act 1961, might be apt. He had threatened to burn out a woman against whom he bore a grudge. He subsequently poured paraffin through the letterbox of the woman’s house and set it alight. The woman’s child died in the resulting fire. Nedrick confessed to starting the fire but claimed that he had merely wanted to frighten the woman and did not want anyone to die. The facts, of course, bear scant resemblance to the present appeal.
[44] The only relevance of Nedrick to the present case is a recognition of the necessity to prove an intent to kill. When alleging attempted murder the Crown must prove an actual, as opposed to a constructive, intent to kill, and that is a question of fact.
[45] The issue of intent was focused upon repeatedly throughout the summing up. The Judge directed the jury, [17], that the Crown must first prove that the accused had intended to kill her mother – to end her mother’s life. He said, [18], that in respect of count 1, the Crown case was that the accused’s intention was to end her mother’s life and that she injected her mother with 60 milligrams of morphine for the purpose of ending her mother’s life. At [52] the Judge directed the jury, again, that the Crown must prove that the accused did the acts in question with the intention of killing her mother – ending her mother’s life. He pointed out, [53], that in relation to count 1, the defence said that if the jury found the accused administered the 60 milligrams of morphine to relieve her mother’s pain and not with the intention of killing her, the necessary intention was not made out. He then set out, in some detail, defence counsel’s points which were said to negate intent to kill on the accused’s part in relation to the first count.
[46] The Judge made it perfectly plain to the jury that, if they were satisfied the appellant had administered 60 milligrams of morphine to her mother, the crucial issue then was whether they were satisfied that she had done so with the intention of ending her mother’s life. The issue was one of fact, not ethics or semantics. We think the Judge was quite right to draw the jury, back from the nomenclature of medical ethics, to the concepts of the Crimes Act and the common law which it invokes.
[47] If the appellant’s “admissions”, particularly the relevant passages of her book, are to be taken at face value, there is no reasonable room for a suggestion that the injecting of the morphine was to relieve pain rather than to cause death. The manuscript describes testing her mother’s response to stimuli and determining that she was unconscious before the appellant broke the neck of the morphine ampoules, drew the contents into a syringe and injected her mother with the contents. Realistically, the issue was the reliability of the narrative rather than the nature of the intent. If the narrative should be found reliable, a conclusion as to the relevant criminal intent was, realistically, inevitable.
[48] In any event, Professor Owens’ discourse on the principle of double effect is irrelevant, and no doubt one of those the Judge had in mind when he directed the jury to ascertain what was and what was not relevant. The appellant herself has not asserted she administered the morphine to relieve pain except in one conversation with Nurse Alward. She later told Nurse Alward her mother had not suffered increased pain and the morphine had been given because Joy did not want a slow painful death. Her statements were that she did it to cause death. In these circumstances “double effect” is a theoretical side wind. Moreover, not even a qualified lawyer, and Professor Owens was not, may give evidence of an opinion as to what the law of New Zealand is. Of course Professor Owens did not purport to be expressing an opinion of law but rather stating a principle of ethics. To the extent that the jury may have been misled into thinking the Professor was able to express a legal view, the Judge was bound to inform the jury otherwise. To the extent that he was expressing, as a fact, a principle of medical ethics, that was not relevant to any matter in issue.
Inappropriate opinion evidence
[49] To some extent Professor Brinded supported the appellant’s argument that the phenomenon of cognitive dissonance may have been present in this case. But the experts differed as to the mental processes which are characterised by the expression. In Professor Owens’ opinion, memory is or could be rearranged to resolve a conflict between obligation and inclination. In Professor Brinded’s view, it is not memory which is affected by the need to resolve conflict but attitude and behaviour; amounting, it would seem, to a reorientation in relation to the values which have been brought into conflict.
[50] Counsel for the appellant submitted that the Judge should not have allowed Professor Brinded to express an opinion on cognitive dissonance. That is because, in counsel’s submission, cognitive dissonance is a phenomenon occurring in the forum of social psychology, and Professor Brinded is not a psychologist but a psychiatrist.
[51] It is the case that Professor Brinded did not purport to be an expert on cognitive dissonance as such. The effect of his evidence is that in dealing with psychiatric conditions he had never encountered a case where memory had been affected by cognitive dissonance which, in his view as we have noted, affects behaviour and attitude rather than memory.
[52] On the other hand, Professor Owens qualified himself as a clinical psychologist with some forensic experience and did not himself purport to be an expert in cognitive dissonance as a discrete field of specialisation. His opinion appears to have been based on the literature.
[53] We doubt whether any evidence on the subject was admissible. Certainly it was not in terms of the probability of it having occurred in the particular case. The rationalisation of conflicting values is ordinary human behaviour and as such should have been the subject of submissions rather than witness dissertation. But counsel’s leading of such evidence in the particular case, particularly in terms of probability, was apt to mislead the jury into thinking that what in reality was a speculative possibility, had a strong scientific indication.
[54] Professor Owens’ evidence in chief was as follows:
You have read the book “To Die Like a Dog” and have studied evidence we referred to earlier. What are issues you identified from the book that might suggest cognitive dissonance was a feature in this case?…A number of aspects not just from the book but from association even in depositions. Two key issues seem to be relevant to events going on at the time, and then to events that have evolved subsequently. Perhaps I can take those separately. Events at the time seem to revolve round Lesley Martin having promised her mother she wouldn’t let her experience a long lingering suffering death, but at the same time having her own views which seem opposed to helping someone end their life.
She told Detective Grantham at the time she wasn’t an advocate for euthanasia? Yes. There’s those two conflicting positions, not an advocate for euthanasia conflicting with the promise to her mother not to let her suffer.
Conflicting positions and how could they resolve? The simple way is to take action enough to relieve suffering, not enough to end her mother’s life and then convince herself she had at least intended to do so.
It must follow there’s high probability of that having happened?…It would be consistent.
What’s the probability of that having happened?…If the events were such as have been described, there was the promise to her mother, and if there was the opposition to euthanasia, then probably seems to me to be high.
Is this something that occurs immediately or takes time?…It can happen pretty much immediately.
So the cognitive dissonance can occur immediately?…Indeed, in early experimental studies dissonance was immediate after the experiments took place.
Did you identify other aspects of case which could suggest dissonance?…Later issue in which it seems to me Lesley Martin’s views on euthanasia appear to have changed, she now seems to adopt much more pro euthanasia stance, that seems to carry a risk. She has to live with the knowledge she promised her mother she would help with her own belief now it would be appropriate to provide such help and with knowledge she failed to do so. The simplest way to resolve that would be to persuade herself though she failed to help her mother die, she attempted to do so and that would reduce the dissonance.
[55] It will be seen that the Professor was asked in a very leading way whether there was a high probability of cognitive dissonance having occurred and the response was “It would be consistent”. A follow up question was then asked and the Professor, without the benefit of any clinical examination of the appellant, nor having been asked to indicate any basis for an opinion on probability, said the probability seemed to be high.
[56] Not only was such opinion urged and given without a proper basis, it went to the very heart of the jury’s issue on count 1. If the appellant’s “admissions” were true, the Crown case on count 1 was effectively proved. The Professor’s opinion was to the effect that there was a high probability that the “admissions” were not true.
[57] In those circumstances we see no error or injustice in the Crown being permitted to ameliorate such inappropriate evidence with the testimony of Professor Brinded.
Putting the defence case
[58] The issue of the reliability of the “admissions” brings us to a further ground of appeal, which is a submission that the Judge failed adequately to put to the jury the defence case that the admissions were unreliable because of conflicts between the book and the evidence.
[59] Mr Stevens submitted on behalf of the appellant that the Judge failed adequately to put to the jury the defence case on the issue whether there had been an injection of 60 milligrams of morphine, this being the act alleged to amount to the attempt in terms of count 1.
[60] It was submitted that there was a reasonable doubt about whether there had been a single injection of 60 milligrams. The elements of the argument were as follows. First, if there had been a single injection of 60 milligrams Joy Martin would not have survived the dose. There were two Crown witnesses who testified that if 60 milligrams had been given, the likelihood is that, without ventilation, the patient would succumb. Next, an earlier draft of the appellant’s book had suggested that there had not been an injection of 60 milligrams. Third, a drug chart, maintained by the appellant on the night in question, recorded that 60 milligrams had been given between 12.30 p.m. and 9 a.m. Finally, the appellant had told her sister that she had administered 60 milligrams “in equal amounts over the night”.
[61] What the jury made of the submissions was of course for them and it is unlikely to have escaped their attention that the appellant seemed perplexed and disappointed that her mother had not in fact succumbed. Further, the chart, maintained by the appellant herself, was at least equivocal on the issue. Finally, if the sister’s recollection was correct, that being a jury issue in itself, an inconsistency between the appellant’s comment to her sister and her comments to the contrary on various other occasions, might seem explicable by the family context.
[62] Counsel for the appellant acknowledged that the Judge did, in a different context, refer to the drug chart and the comments to the sister, but he argued that the Judge did not list the particular aspects of the evidence relied on by the defence when asking the jury to consider whether they were satisfied that a single injection had been given.
[63] In dealing with the specific issue whether the jury were sure that the accused injected 60 milligrams of morphine into her mother, the Judge examined the matter in a way which covers four and a half pages of the summing up, including what appears to have been a significant defence challenge in terms of arithmetical analysis of the morphine which may have been available for administration. Counsel acknowledged that the Judge referred to the drug chart and the comment to the sister at another part of the summing up.
[64] We are far from persuaded that the Judge erred in failing to draw the jury’s attention, specifically, to a reference in an early draft of a subsequently published manuscript. A Judge is under no obligation, in summing up, to put every detail of the case for either the Crown or the defence. The judicial responsibility is fairly and accurately to summarise the essential elements of the cases and not simply to replicate or paraphrase the fulsome detail of argument. And, of course, any reference to a possibly equivocal portion of an unpublished draft could hardly be mentioned without reference to the specific admissions to the contrary. We note, for example, that the appellant had told Detective Sergeant Grantham on 28 May 1999 and 6 March 2003 that she had administered a 60 milligram dose in addition to other lesser doses.
[65] We think the particular point has no merit.
Other aspects of putting the defence case
[66] A further ground of appeal is that the Judge failed adequately to put to the jury the defence case that the admissions made by the appellant were unreliable. In addition to the evidence about cognitive dissonance there were, submitted counsel, a number of conflicts between the account given in the book of various events and other evidence at trial concerning those same events.
[67] The reliability of the book was a critical issue, in counsel’s submission. We remark of course, that it was not essential to the Crown case, given the significant inculpatory comments made by the appellant to Detective Sergeant Grantham and Nurse Alward.
[68] Counsel submitted that whereas in the book the appellant did not tell the nurse that Joy Martin had been in pain when she stated she had given her mother 60 milligrams, the nurse’s evidence of the same conversation was that the appellant said her mother had been in severe pain.
[69] Second, after the phone call, the nurse visited the home, saying she did so at 3.45 p.m, whereas the book refers to a visit at 10.00 a.m.
[70] Third, the book describes the appellant’s sister as having a cell phone and putting it into her bag, whereas the sister said in evidence that she did not have a cell phone.
[71] Fourth, there was the issue of likelihood of succumbing to a 60 milligram dose.
[72] Fifth, Detective Sergeant Grantham, in evidence, referred to a discussion with the appellant in which she said she showed him the family photo album but there was no reference to that in the book’s account of the discussion.
[73] Sixth, Detective Sergeant Grantham’s evidence was that the appellant told him her mother had asked her to help end her life, when the mother was in hospital, whereas the book has a similar conversation, not in hospital but at home.
[74] Another point is that, according to the detective, the appellant told him she was upset by a comment made by a nurse and there was a discrepancy between her description to the detective and her description in the book as to the timing of that.
[75] Finally, the appellant had told the detective that 10 milligrams of morphine had been given to Mrs Martin on the night of 28 May just before her mother died, but the book made no reference to morphine being given that night.
[76] Counsel complained that only that last point was mentioned by the Judge and then somewhat dismissively.
[77] We repeat our observations as to the nature of the Judge’s responsibilities in discussing the respective cases. But further, we think the particular ground of appeal raises little more than quibbles.
[78] In the course of the formal interview between Detective Sergeant Grantham and the appellant on 6 March 2003, the detective had asked her whether the book was a true account of what happened with her mother and how she died. The appellant had replied in the affirmative commenting “with a degree of literary licence”. The detective then asked whether the areas in the book at pages 132 and 139 (which relate to the counts in the indictment) were accurate. He showed the appellant the areas in the book, which he had marked, and the appellant confirmed that they were correct.
[79] On that basis, the minor and wholly inconsequential differences between the book and other evidence may be seen as referable either to literary licence or trivial differences which have little significance in terms of the respective cases of trial. There is nothing in the particular ground of appeal that causes us concern about the safety of the verdict.
Mistake?
[80] A further ground of appeal relates to an issue which defence counsel raised with the Judge following the summing up and which the Judge did not bring to the attention of the jury for some four hours after they had retired.
[81] In closing, defence counsel had addressed the jury to the effect that the appellant was so exhausted and under so much stress and pressure, on the night of 26/27 May, that in giving any injection of morphine she could have made a mistake as to the amount of morphine required. In addition to the effects of stress, which the appellant was undoubtedly subjected to, it is also the case that there may be quite variable responses to particular doses of morphine required to treat pain in a terminally ill patient. Counsel relied on these features to support the submission of the possibility of error.
[82] If the prosecution had depended on nothing more than the administration of a potentially lethal dose of morphine by a caregiver, the cogency of such a submission would be self-evident. But that was not the case here. The prosecution relied on many admissions by the appellant to the effect that she had specifically administered a potentially lethal dose in order to bring about a fatal result. The particular submission, in such context, was that the appellant was not only mistaken in her recollection of her intent but had mistakenly administered more than she intended to.
[83] In summing up, the Judge did not make specific reference to the question of a mistaken dose. Immediately after the jury retired to consider its verdict, the Judge saw counsel in chambers. Mr Stevens complained that there had been no mention of a submission that in the middle of the night there could have been a mistake and too much morphine given. He asked the Judge to bring the jury back and explain that such was a defence. The Judge remarked on the difficulty of reconciling the possibility of a mistaken dose of 60 milligrams with the emphasis of the defence challenge, on an arithmetical basis, to the issue whether 60 milligrams would have been available to inject. The Judge also remarked that the jury would be left wondering why the accused had not given evidence to say she had made a mistake, absent which there was no evidential basis for the proposition. Eventually the Judge decided that he would get the jury back and deal with various matters but would not do so until he had attended to the sentencing of three prisoners.
[84] At 3 p.m, some three hours fifty minutes after the jury had retired, the jury were brought back into court and the Judge dealt with written questions from them relating to the signing or otherwise of the formal police statement and whether the appellant had admitted one dose of 60 milligrams or several doses totaling 60 milligrams. The answer to the question about signatures was in the negative and then the Judge examined the discussions between the appellant and Detective Sergeant Grantham in which the appellant had specifically referred to a dose of 60 milligrams. Turning, then, to the question of mistake he directed as follows:
I overlooked mentioning to you when I summed up that the defence in closing also raised the possibility that the accused, if you find she did give a large dose of morphine to her mother that night, 60 milligrams perhaps or some other large amount, that she may have done so by mistake. She may have got the dosage wrong in the middle of the night in her stressed and exhausted state. So the possibility of error or mistake on the accused’s part is raised by the defence as another factor supporting its submission to you that the Crown has not proved beyond reasonable doubt that the accused intended by that dose to kill her mother. I add that you do not have any evidence at all about the likelihood or not of the accused making a mistake and giving that injection. It is fair to say that that was not put to any of the Crown witnesses.
[85] The jury retired again at 3.10 p.m. and returned at 4.45 p.m. with a verdict of guilty on count 1 and a verdict of not guilty on count 2.
[86] The timings show that the jury had more than one and a half hours to examine the mistake theory. Had the jury not been satisfied beyond reasonable doubt that the admissions in respect of count 1 were essentially true, the question of mistake was irrelevant. But were they satisfied beyond reasonable doubt about the accuracy of the admissions, the proposition would have to be that the appellant mistakenly gave more than she intended to give in order to bring about death. The alternative need only be put like that to indicate the insubstantiality of the submission. The Judge was right, moreover, to indicate that there was no adequate evidential basis for a reasonable possibility of mistake.
Balance
[87] A further general ground of appeal is that the summing up lacked balance. That is put as a conclusory submission in light of the criticisms relating to the grounds that the Judge failed adequately to put the defence on the question of whether there had been an injection of 60 milligrams of morphine and the defence that the admissions were generally unreliable. Having found against the appellant on those particular grounds, we find the conclusory ground is similarly unpersuasive.
Intent and stress
[88] We return, as indicated earlier in this judgment, to the grounds that the Judge misdirected the jury by referring to intent as a presumption of law, and by telling them that stress and exhaustion could not, as a matter of law, negate an attempt.
[89] The summation context in which the impugned directions occur is as follows:
[57] Dr Stevens submitted to you that the accused was, on the two nights in question, so severely stressed and utterly exhausted as to be incapable of forming any intention to kill. He went so far as to submit that she was acting mechanically without conscious thought, in the way Professor Owens described people do if they are under really extreme stress.
[58] I do not intend taking you through the chronicle of errors or systemic failures on the part of hospital, hospice, nurse and doctor which Dr Stevens outlined to you. Mr Cameron accepted that there had what he termed some systemic failures and suggested the whole country might learn something on that score from this trial. You might agree that that was a proper concession.
[59] Dr Stevens also referred to the vomiting of blood by Mrs Joy Martin, and its likely effect on the accused because her first nursing experience with death was of a patient who died of oesophagal varices, violent bleeding from the mouth. He took you to places in the book where the accused refers to that, including importantly at pp 154-155 (the count 1 incident) and p 164 (the count 2 incident).
[60] Mr Cameron accepts of course that the Crown must prove the requisite criminal intent – an intention by the accused in relation to each of the two counts to kill her mother – end her life. In doing that, the Crown is entitled to rely on the presumption in law that every person has sufficient mental capacity to be responsible for any criminal act they commit. In other words, once the Crown proves a criminal act then, in the absence of insanity or automatism (neither of which are pursued as defences in this trial) there is a consequential inference of capacity and intention. In short, once the act is proved the criminal intent to commit it is presumed. The reasons for that will probably be obvious to you: they lie in the difficulty of proving intent – something which is within each accused’s own mind and which is difficult of objective proof. That is why there is that presumption in law.
[61] Quite apart from that presumption, the Crown relies on the accused’s admissions, in particular to Nurse Alward and Detective Grantham, that she injected her mother, and then the following night suffocated her mother, with the intention of ending her life. I have already outlined those admissions to you. Briefly to recap, to Nurse Alward she admitted that she had injected her mother with 60 mg of morphine because her mother didn’t want a slow painful death, and nor did she want that either. To Detective Grantham she admitted that she thought the morphine overdoes would end her mother’s life (Notes 212/33) and smothered her mother in the hope that it would end her suffering (Notes 213/5).
[62] As to the defence reliance on stress and exhaustion to negate criminal intent, I direct you that, as a matter of the law, that mere proof of stress and exhaustion, even if severe, cannot in themselves negate intent. A person suffering from stress and exhaustion has no more right to kill or injure than any other person. The fact that a person is stressed or exhausted is not in itself a defence: stress and exhaustion are not in themselves justification for the commission of a crime. That may seem tough to you, but it is the law in New Zealand. And, again there are good reasons for that. Mr Cameron touched on them: to the difficulties that would arise if a person could say by way of defence: “Well, I shot and killed him because I was extremely stressed out by what had happened, and I was exhausted and at the end of my tether at the time”.
[63] In New Zealand the law does permit certain defences in this area. They include insanity, automatism and there are also provocation and self defence. None of those except automatism has featured in this trial, and automatism is no longer pursued by the accused. Short of those defences, I direct you as a matter of law that there is no “halfway house” in the law, in the form of a defence of stress and exhaustion, negating criminal intent. We do not have in New Zealand law any defence of diminished responsibility, as a result, for example, of stress and exhaustion or the like.
[64] So Mr Foreman and members of the jury, that deals with criminal intent. With the benefit, I hope, of those directions on the law you must ask yourselves whether you are satisfied on the evidence that the Crown has proved that the accused intended to kill her mother – to end her mother’s life, on count 1 by injecting her with 60 mg of morphine, on count 2, by smothering her with a pillow.
[90] Mr Stevens argued that there were two misdirections in this passage: the first in [60] and the second in [62]-[63]. We will consider each in turn.
[91] In relation to the directions contained in [60] of the summing up, Mr Stevens accepted that the Judge was correct in directing that there is a presumption of mental capacity; R v Roulston [1976] 2 NZLR 644. Counsel submitted that the Judge was wrong, however, to direct the jury that there was a presumption of intention, in the absence of insanity or automatism, that being a question of fact.
[92] As Mr Stevens pointed out, it is well established that there is no presumption of intention once an act is proved. In R v Steane [1947] All ER 813, at 816, Lord Goddard CJ said:
No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.
[93] More specifically on the question of presumption, the New South Wales Court of Criminal Appeal said in R v Gordon [1964] NSWR 1024 at 1028:
It would have been correct to tell the jury that if they thought that the appellant was capable of forming the intention to kill they might properly infer from the shooting, if they thought it right to do so, that the intention existed. But in my opinion it was not right to tell them that the law supplied a presumption on the point. The responsibility of deciding whether the inference of intention should be drawn lay upon them, and no presumption of law existed to relieve them of it. This Court has disapproved on several occasions of the course of charging a jury in terms of a presumption of law existed to relieve them of it. This Court has disapproved on several occasions of the course of charging a jury in terms of a presumption of intention, pointing out that it conceals the true position: Smythe v R (1957) 98 CLR 163, and other cases there cited.
[94] In R v Kamipeli [1975] 2 NZLR 610, this Court examined the law in relation to intent in a case of homicide where the offender had been affected by alcohol. This Court held that there was no presumption of law that a person intends the natural and probable consequences of their action. The responsibility of deciding whether the inference of intention should be drawn rather lies upon the jury. In delivering the judgment of the Court McCarthy P said at 617:
All we need to say is that we agree that the use of the word “presumption” in this connection is to be avoided, for it can be misunderstood as importing a legal presumption, which would be entirely wrong, and even when not conveying that impression, can seriously overstate the situation.
His Honour relied upon indications in the English Courts to this effect in R v Hyam [1975] AC 55 and Lang v Lang [1955] AC 402 at 425.
[95] To these authorities can now be added Frankland v The Queen [1987] AC 576 (PC). The issue in that case was whether, having regard to all the circumstances of the offence, including the fact of intoxication, the Crown had proved beyond reasonable doubt a murderous intent.
[96] These cases establish that ostensibly criminal acts do not invoke a presumption of any particular intention, such as an intention to kill. While, as a matter of fact, intention may sometimes be deduced from actions, the jury must consider whether negligence, mistake or a failure of foresight might account for them in a way that was inconsistent with intent. It may be logically possible to speak of a presumption of intention in an abstract sense akin to voluntariness, in the absence of evidence of automatism or some other cause of involuntary action, but such a direction invites confusion as to the proof of particular intentions.
[97] We conclude that the direction is an incorrect statement of the law in relation to intent. It seems clear that it was a slip, because the Judge correctly directed the jury on the same issue in other parts of the summing up. It seems likely that he intended to refer to a presumption that an accused has the capacity to form intent, rather than that there is a presumption of intent. The context suggests that is so. Normally such a slip would be noted by counsel and raised with the Judge at the end of the summing up so that it could be corrected. Unfortunately neither counsel noted it at the time and, although Mr Stevens raised a number of matters with the Judge, this was not one of them.
[98] The question then is whether the misdirection could have affected the jury’s deliberations, given that it is one of a number of references in the summing up to intent, and the other statements on the topic are correct.
[99] The Judge’s directions about intent at [60] of his summing up, reproduced at [89] of this judgment, were given in the context of a defence submission that the appellant was so severely stressed and exhausted as to be incapable of forming any intention to kill. The Judge at this point was summarising the legal principle he had just explained, concerning mental capacity. The jury had by then been clearly directed that they were required to decide whether the injection and smothering were accompanied by an intention to kill. In particular at [52] of his summing up the Judge had said:
The Crown must also prove that the accused did those acts with the intention of killing her mother – ending her mother’s life.
[100] He then listed a number of evidentiary factors which Mr Stevens had told the jury negated intent on each count. That discussion would have indicated to the jury that it was necessary for them to consider whether the evidence to which they were referred negated intent. Considered alongside the clear earlier directions on burden of proof, this would have indicated the correct position on proof of intent to kill to them. The correct position had also been stated in the summing up at [17], and reiterated at [64], which we reproduced earlier in this judgment at [89].
[101] The fact that neither counsel noticed the slip at the time also supports the contention that the jury was unlikely to have taken the incorrect statement at [60] as overriding the other, correct, statements on the topic in the summing up.
[102] However, the impugned directions on intent were erroneous. It therefore becomes necessary to determine whether no substantial miscarriage of justice was occasioned by them.
[103] Before doing so, we turn to the alleged misdirection at [62]-[63].
[104] Mr Stevens’ submitted that the Judge wrongly directed the jury at [62] as follows:
As to the defence reliance on stress and exhaustion to negate criminal intent, I direct you that, as a matter of law, that mere proof of stress and exhaustion, even if severe, cannot in themselves negate intent. A person suffering from stress and exhaustion has no more right to kill or injure than any other person. The fact that the person is stressed or exhausted is not in itself a defence: stress and exhaustion are not in themselves justification for the commission of a crime. That in itself may seem tough to you, but it is the law in New Zealand.
[105] At [63] the Judge noted the existence of insanity, automatism, provocation and self-defence, concluding:
Short of those defences, I direct you as a matter of law that there is no “halfway house” in the law, in the form of a defence of stress and exhaustion, negating criminal intent. We do not have in New Zealand law any defence of diminished responsibility, as a result, for example, of stress and exhaustion or the like.
[106] The Judge was right to note that proof of stress and exhaustion cannot in itself negate intent. There is no such defence. Just as a drunk person may intentionally do something they would not have done if sober, so may a person suffering from stress. In neither case is their action justified or excused by the fact of their state.
[107] Mr Stevens’ submission, however, was that stress and exhaustion are relevant to the question whether the accused in fact formed an intention to kill her mother. Support for such a submission may be found in this Court’s decision in Kamipeli. In that case, McCarthy P for the Court said at 616:
Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention of recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.
[108] That approach to intoxication is recognised in the leading texts on criminal law (see, e.g. Smith and Hogan: Criminal Law (20th edn 2002) 241; A P Simester and W J Broadbanks, Principles of Criminal Law (2nd edn 2002) 353). We see no reason in principle or policy for not applying it to cases of stress, recognising, of course, that juries are likely to be sceptical of claims that intent was not formed simply because of the effects of stress or exhaustion.
[109] The Judge’s directions did not, in their terms, rule out this approach, but nor did they expressly advert to the relevance of stress. Furthermore, the directions were in absolute terms. Mr Stevens’ argument is that they would have indicated to the jury that stress was entirely irrelevant to their deliberations. The Judge did comment, in addressing the jury on mistake, that no evidence at all had been given on the likelihood of the accused making a mistake in giving the injection. Arguably, at least, the evidence on stress and exhaustion was relevant to that question.
[110] We think it would have been better for the Judge to have indicated to the jury that stress and exhaustion may be relevant to whether there had been, in fact, an intent to kill.
Application of the proviso to s 385(1)
[111] There were, therefore, two aspects of the summing up which we accept were open to criticism. It accordingly becomes necessary to consider whether the appeal should be dismissed under the proviso to s 385(1) of the Crimes Act. This allows that even though the Court should consider that a point raised by the appellant must be decided in her favour, the appeal should nevertheless be dismissed on the basis that no substantial miscarriage of justice has actually occurred.
[112] The leading authority on the application of the proviso is R v McI [1998] 1 NZLR 696 (CA) at 711-713. In that case, this Court formulated the test for the application of the proviso as follows at 712:
On this basis, in order to achieve a satisfactory fusion of the two formulations, the test for application of the proviso should be framed as follows. Before the proviso may be applied, this Court must be sure that the jury would without doubt have convicted had the matter or matters giving rise to the initial miscarriage of justice not been present.
[113] Later, the Court added:
People accused of serious crimes are entitled, under our system of justice, to trial by jury. If there has been an error, or series of errors, in the trial process which could have affected the jury’s verdict, the accused person has not had the benefit of due process. That omission should be waived by this Court only if the lack of due process could have made no difference to the verdict. This is a high standard...
[114] That test was recently reaffirmed by this Court in R v Howse [2003] 3 NZLR 767 at 781. We now apply it to the circumstances of this case.
[115] If the jury had thought intent to kill should be inferred, it would have needed to find that the appellant had done an act mandating such inference. In the circumstances of the case, that would have required the jury to find that the appellant had knowingly injected her mother with a lethal dose of morphine. The only basis on which the jury could have done so would have been by accepting the admissions made by the appellant.
[116] The other evidence was capable of establishing that unusually large doses of morphine had been administered to the deceased at the relevant time, but not capable of proving there had been a single dose of at least 60 milligrams of morphine. The medical evidence was unclear and there was no direct evidence of such a large injection. Accordingly, if the jury had rejected the admissions, they could not have found that the injection of 60 milligrams of morphine was proven beyond reasonable doubt. In those circumstances, the jury should, and we think would, have acquitted on count 1 if they had rejected the admissions, even had they wrongly believed that there was a presumption of intention and/or that stress was irrelevant to determining whether there had been an intention to kill.
[117] The conviction is therefore rationally explicable only on the basis that the jury accepted that the appellant’s admissions were reliable, rejecting the submission concerning cognitive dissonance. Once they had been found to be reliable there is no question but that the admissions disclosed an intent to kill by administration of morphine. It was open for the jury to accept the reliability of the admissions evidence, particularly given that the appellant did not herself give evidence suggesting that she could have been mistaken or affected by considerations which might have supported a theory of cognitive dissonance. She had not been examined by the defence experts, who nevertheless felt, in our view somewhat overconfidently, able to express a view on the matter.
[118] If the jury accepted the admissions were reliable, an inference of murderous intent was rationally inevitable. Accordingly the jury’s verdict that the elements of count 1 were proven could not have been tainted by the misdirection on intent. The Crown case and the defence case stood or fell on the integrity of the admissions.
[119] Nor was there any basis for the speculative defence based on stress or mistake.It was open to the appellant to question the reliability or the interpretation of the admissions she had made in her book and otherwise. In this she had some success – it may well be that the reason for the acquittal on count 2 was a concern that there was possibly an ambiguity in those admissions, so as to leave a reasonable doubt whether there was in respect of count 2, an intention to kill. On count 1, however, once the admissions were accepted as true, such intention was undoubtedly proven. The evidence might have indicated that the appellant was stressed, but the jury could not, in the face of the clear indications to the contrary in the book and in the appellant’s accounts to Detective Sergeant Grantham, rationally have doubted that the appellant had formed the relevant intention
[120] It follows that the directions as to stress and the presumption of intent could not have affected the jury’s findings on count 1.
[121] In all the circumstances, therefore, we consider there was no substantial miscarriage of justice. We have no doubt at all that the jury would have convicted, and were fully entitled to do so, if the misdirections had not been made. We therefore apply the proviso to s 385(1).
[122] For these various reasons the appeal against conviction is dismissed.
The sentence appeal – the Judge’s reasons
[123] We now turn to the question of sentence.
[124] Following the announcement of the jury’s verdict of guilty, the Judge refrained from immediately causing a formal record of conviction to be entered. This was because appellant’s counsel had said that an application would be made for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. A discharge under that section is deemed to be an acquittal. It is stipulated in s 107 that the Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[125] At the sentencing hearing, Mr Stevens made what the Judge called a “spirited submission” that there should be a discharge without conviction. He argued that disproportionate consequences were the probability that the appellant would be unable to work in any of the three areas in which she was qualified. These were nursing, commercial aviation and real estate. Also, he said, a conviction was likely to have a significant restriction on the appellant’s ability to travel internationally. That would impinge disproportionately on the appellant’s current and intended future role in a capacity which counsel described as “the foremost advocate of voluntary euthanasia in New Zealand at the present time”. We mention, as an aside, that according to the evidence the appellant was not a supporter of euthanasia when she attempted to murder her mother and the fact that since then she has become an ardent advocate validates Professor Brinded’s understanding of “cognitive dissonance” in terms of behavioural changes to reduce or obviate conflicting personal values.
[126] The Judge remarked that he did not under estimate those likely consequences but he did not consider them out of all proportion to the gravity of the offence. There has never been a case, it seems, where a New Zealand Court has discharged without conviction a person who has been found guilty of or has pleaded guilty to a charge of attempted murder. Implicit in the Judge’s approach was both a recognition of the serious nature of attempted murder as a specific crime, carrying a maximum sentence of 14 years imprisonment, and a consequential inappropriateness in responding to guilt with a discharge without conviction.
[127] The appellant, realistically, has not sought to take issue with the Judge’s discretionary refusal to discharge without conviction, in pursuing this appeal against sentence. But by counsel she has emphasised the penalising consequences of the conviction itself. These may extend to potential areas of employment, such as nursing or the occupation of a real estate agent. The appellant places particular significance, however, on likely limitations on international travel, including to Australia, now that she is a committed and apparently somewhat sought after advocate of voluntary euthanasia.
[128] The Judge referred to ss 8 and 16 of the Sentencing Act and found those provisions required him to; hold the appellant accountable for the harm she did to her mother and to the community; promote in her a sense of responsibility for an acknowledgement of that harm; denounce her conduct; deter her and other persons from committing the same or similar crime; and protect the community from her.
[129] Wild J correctly noted that he was required to take into account the gravity of the offending, the seriousness of the crime of attempted murder, sentences imposed in similar cases and the particular circumstances of the appellant herself. He was required, as he recognised, to impose the least restrictive outcome appropriate to the case.
[130] The crime of attempted murder is considered grave by the courts and the Judge noted accordingly. He recognised, however, that crimes of attempted murder may differ greatly in circumstances, from what has been described as “the borders of cold blooded murder down to the shadowy area of mercy killing or common humanity”: R v Hough (1984) 6 Cr App R (S) 406.
[131] The Judge then named some forty authorities, New Zealand, Australian, Canadian, American and English, to which counsel had referred him. None was sufficiently similar to provide a direct precedent but they generally indicated a range in broadly comparable cases from non-custodial sentences up to eight years imprisonment.
[132] The Judge identified as mitigating factors the appellant’s unblemished previous record and good character, the motives of love and compassion which attended the act, the candour of her admissions, and the fact that Joy Martin was clearly very ill and near to the end of her life.
[133] On the other hand, he noted aggravating aspects of deliberate and pre-meditated conduct rather than impulsive behaviour; the fact the appellant was an experienced registered nurse and should therefore have had insight into seeking further help rather than taking matters into her own hands; the breaches of trust in relation to the doctors and nurses who had placed Joy Martin in the appellant’s care with 100 milligrams of morphine for pain control; and the appellant’s failure to consult family and perhaps a very close and longstanding friend to whom anguish had been caused by the appellant’s conduct.
[134] Whilst rejecting the Crown’s submission that the appellant’s continued denial of wrongdoing with consequential distress to family and friends was an aggravating factor for sentencing purposes, the Judge said he could give the appellant no credit or allowance for remorse or for any acknowledgement of wrongdoing, because she had shown none. He observed that both during and since trial the appellant had demonstrated a lack of remorse and an arrogance. The observation was plainly based, in part, on statements which the appellant had made to the Probation Officer in the course of preparing a pre-sentence report. She had said:
I have never felt that I was guilty of attempted murder or murdering my mother. My views on that will never change. I do not consider myself a criminal.
…
Am I likely to reoffend? I am making this political stand in the hope that I will never be placed in this situation again. If you are asking me whether I would reoffend I can say that if someone else I loved dearly was suffering and asked me to help them to die, and we continued to live in our current legal environment, I would help again.
[135] The Judge remarked that in some way the appellant seemed to believe that she is above the law. The Judge did not specifically mention, but may well have had in mind, the inconstancy of the appellant’s stance and numerous admissions before and after trial of conduct amounting to attempted murder, and her instructions to counsel for the purpose of trial (and, we would add, for the purposes of this appeal) that her admissions are unreliable.
[136] The Judge considered that the appellant ought be held accountable for the harm she had done to the fundamental human value of life itself. He saw it as his duty to express the community’s and the law’s denunciation of actions which conflict with or devalue the sanctity of human life. Although the appellant had no sense of responsibility for what she had done and would not personally be deterred from future conduct, there was, however, an issue of general deterrence to be considered.
[137] Accepting, nevertheless, some indications for mercy, the Judge imposed a sentence of 15 months imprisonment and granted leave to apply for home detention.
Appellant’s submissions
[138] On the appeal, Mr Stevens submitted that the sentence was manifestly excessive and wrong in principle. He supported his submissions with extensive references to cases of so called mercy killing in a number of common law jurisdictions. Several, in counsel’s submissions, were no more serious than the present case and had resulted in non-custodial sentences. Instead, there had been orders for supervision, probation, good behaviour bonds and community service. Recent cases of assisted suicide in Australia had resulted in suspended sentences: R v Hood (2002) 130 A Crim R 473; R v Maxwell [2003] VSC 278; R v Marden [2000] VSC 558.
[139] Counsel referred to five “mercy killing” cases in New Zealand where terms of imprisonment had been imposed, but in counsel’s submission each was readily distinguishable from the facts of the present case. In R v Law [2002] 19 CRNZ 500, the appellant murdered his wife who was suffering from Alzheimer’s Disease. He received a sentence of 18 months imprisonment with leave to apply for home detention. In R v Stead (1991) 7 CRNZ 291, the offender had stabbed his mother to death because she, in a state of severe depression, had implored him to do so. The mother had attempted to commit suicide with sleeping pills but had failed. What this Court described as a merciful verdict of manslaughter, resulted in a sentence of three and a half years imprisonment. In R v Albury-Thomson (1998) 16 CRNZ 79, a woman who had been convicted of the manslaughter of her 17 year old autistic daughter had a sentence of 18 months imposed by this Court on appeal. In R v Simpson T 010609, Auckland High Court Registry, 12/10/01, a doctor who had been convicted of the manslaughter of his mother, received a sentence of three years imprisonment.
[140] Counsel also referred us to a case known as R v Bell where a nurse was convicted of attempted murder for trying to suffocate a patient whom the offender assumed would have wanted her to act in that way. Ms Bell plainly had a form of mental disorder; and apparently still has, because the Court is aware that she has recently been convicted again for a similar offence. For the offending referred to by counsel, Ms Bell received a sentence of 12 months imprisonment.
[141] In counsel’s submission, those New Zealand cases were significantly more serious than the present case. It is implicit in counsel’s submission that the sentence imposed in this case is unjustly disparate in its severity.
[142] As we have mentioned, one of the many cases mentioned by counsel at sentencing was R v Stead.
[143] In the course of his sentencing notes, the Judge referred to a comment by this Court in R v Stead at 295 that the particular case was very significantly more than an aiding of suicide, being more akin to a mercy killing with the unusual feature of persistence in the attempts. Wild J commented that he had that distinction firmly in mind when he considered the assisted suicide cases relied upon by Mr Stevens, primarily Ruscoe.
[144] In Ruscoe, the offender, at the request of a close and severely disabled friend, had assisted the friend to ingest a large number of tablets and had finally covered the friend’s face with a pillow. On appeal, a sentence of supervision was imposed. In the course of its judgment, this Court observed that in Stead it had remarked that there is no established sentencing pattern in New Zealand for aiding suicide, still less for mercy killings and the like. Emphasis was placed on the particular facts. Reference was made to the sanctity of human life and that, in sentencing, the approach can only be in the direction of a prison sentence unless there is strong reason to the contrary.
[145] Mr Stevens submitted to us that Wild J was wrong to draw a distinction between assisted suicide and mercy killings and in consequence had placed the present case in a more serious category than it warranted. That alleged error, in counsel’s submission, enabled the Judge to overlook the Australian cases where a distinction is not drawn for sentencing purposes between assisting suicide and attempted murder.
[146] The Judge was also criticised by Mr Stevens for accepting a Crown submission that attempted murder and assisted suicide have a significant distinction in that the victim is autonomous in the latter but not in the former. In Stead, this Court had pointed out that the offender himself, not his mother, had decided she would die. Mr Stevens submitted that Wild J’s approach overlooked the wish Joy Martin had expressed to the appellant and the promise she had extracted from her.
[147] Mr Stevens also submitted that Wild J failed adequately to take into account that, at the time of the particular events, Joy Martin was close to death, being at the end stage of her illness and in the process of dying. The particular submission overlooks the Judge’s specific reference to those facts as mitigating. It might also be observed that Joy Martin had the strength not to succumb immediately to the morphine overdose administered by the appellant.
[148] Wild J was also criticised by counsel on the basis that he failed to take into account the exhausted and distressed state of the appellant. The appellant was undoubtedly in a very stressful situation. She had responsibilities to her immediate family as well as having to cope with the distress of caring for her mother at the terminal stage of a painful and debilitating illness. There is independent evidence of the effects of stress on the appellant’s physical appearance. Mr Stevens also placed emphasis on alleged failings in the health system, in consequence of which the burden on the appellant was increased. The result, in counsel’s submission, was a significant reduction in culpability, and that had not been reflected in the sentence.
[149] It is the case that the Judge did not specifically refer to stress as a mitigating feature. On the contrary, he specifically would not accept Mr Stevens’ repeated and forceful submission to him that the circumstances of the attempt to kill Joy Martin were extreme and unusual, at the limits of human endurance. He said they were not. He remarked that all over New Zealand, ordinary decent New Zealanders are dealing with similar circumstances.
[150] It is significant to our mind that the appellant has not herself suggested that stress and exhaustion induced her to do what she would not otherwise have done. On the contrary, her justification was a sense of obligation to her mother and her inclination would be to do it again in similar circumstances.
[151] It is, in any event, difficult to reconcile the idea of reduced culpability through stress and the Judge’s findings that the offence was premeditated and deliberate. Nevertheless the Judge did give credit for the filial love and compassion which had motivated the conduct.
[152] Mr Stevens submitted that the Judge was in error in describing the appellant as demonstrating arrogance and was also in error in taking into account the appellant’s failure to view herself as a criminal. He referred to the Judge’s comments, made directly to the appellant after the verdict, commending her for her dignified manner throughout the trial. Following verdict and before sentencing, the appellant had given media interviews espousing the cause of voluntary euthanasia law reform. In doing so, Mr Stevens submitted, she was simply exercising her democratic rights and that does not equate with arrogance nor should have been held against her. He submitted also that in this type of case there should be little emphasis on lack of remorse. If a person genuinely believes there has been no wrongdoing, it cannot be right to place much weight on that.
[153] Our only observation about the Judge’s perception of arrogance on the part of the appellant is that he was in a better position than this Court to observe demeanour and context. Further, there is nothing to indicate that his reproof inappropriately influenced the sentence. She just could not get credit for remorse.
[154] Mr Stevens also submitted that the Judge was in error in the emphasis he placed on features he regarded as aggravating, such as greater insight through being an experienced registered nurse. Also, breach of the doctor’s trust.
[155] The Judge’s approach to sentencing purposes was, in counsel’s submission, at variance with the approach taken in several Australian cases. They indicate that general and specific deterrence do not need to be emphasised. In this respect, the rarity of mercy killing cases and the exceptional circumstances that they involve reduces, in counsel’s submission, the weight to be attached to general deterrence.
[156] Mr Stevens emphasised those aspects of the appellant’s character which were of real community and family value and submitted they had received insufficient weight.
The Crown response
[157] The Crown’s response to the sentence appeal commenced with an acknowledgement that at sentencing the Crown had accepted that the appellant committed an act of attempted mercy killing, thinking that her mother wished to die at the time of the acts because of the terminal nature of her illness. The Crown pointed out that there is no tariff case for mercy killings and that, as this Court noted in Stead, in relation to assisted suicide sentencings, the then current English position disclosed sentences of imprisonment ranging from nine months to eight years. In the Crown’s submission, the reality of sentencing in this area is similar to the Court’s approach in manslaughter cases. Each case turns uniquely on its facts and there will often be features which significantly reduce criminal responsibility.
[158] The Crown submitted that this was not a case of assisted suicide and the Judge was right so to hold. It was rather a case of attempted mercy killing and on the authorities there is an available range of penalties of up to three and a half years, once a killing or attempt comes into the particular category. The Crown emphasised the advantage the trial Judge had in weighing up the aggravating and mitigating factors in the course of supervising a trial over two weeks in length. The Judge could not overlook the appellant’s remark that she would do it all again, but he did not treat that as an aggravating factor. Rather, it was an absence of a mitigating feature.
[159] In the Crown’s submission, the trial Judge had to consider an avalanche of authority presented on behalf of the appellant, much of it off the point, and he had rightly identified the available sentencing range. Prompted by mercy, he moved to the lower end of the range and was required to go no further. The Crown pointed out that the principle of the sanctity of life is now embedded in s 8 of the New Zealand Bill of Rights Act.
Discussion
[160] On an appeal against sentence, what is required is not so much a critical examination of the sentencing Judge’s method as an evaluation of the appropriateness or otherwise of the sentence ultimately imposed. A minute dissection of the sentencing notes is less helpful to an appellate court than submissions as to the relevant aspects of the case and the application of statutory and common law sentencing principles.
[161] None of the appellant’s criticisms of the sentencing reasons is justified. Many we have dealt with in passing but there remain the criticisms:
(a) that the Judge wrongly distinguished between assisting suicide and mercy killings;
(b) that the sentence is inconsistent with Australian sentences in similar cases, and was too high compared with several New Zealand cases;
(c) the Judge overrated aggravating features and underrated the appellant’s personal qualities.
[162] As to (a), the Judge’s approach reflected this Court’s indications of distinction in R v Stead, and counsel’s criticism is unjustified. As to (b), the Australian cases reflect, to some extent, different sentencing options from those in New Zealand. Sentencing in this country must respond to the Sentencing Act 2002. As for the New Zealand cases, it is sufficient for us to note that in this area of offending, the sentencing scope is as variable as in manslaughter cases, both categories being fact dependent and responsive to idiosyncratic indications for judicial mercy. The particular sentence was clearly and fairly available to Wild J.
[163] As to (c), a perusal of the sentencing notes must lead to a dismissal of the criticism as objectively unfounded. The aggravating features were appropriately identified and weighed. The Judge noted the appellant’s good character as a mitigating factor in sentencing. There is nothing in the case or the sentencing remarks to justify this Court’s taking a different view of relative weighting of these features.
[164] We note that the Judge correctly identified the elements of the Sentencing Act which might bear on the case and also identified the various factual matters which have been examined in counsel’s submissions. Reduced to its essentials, the appellant’s case must be that 15 months imprisonment coupled with an order for leave to apply for home detention was an excessive sentence.
[165] Ultimately the sentencing process was bound to reflect the Court’s duty to respect human life. This is mandated not just by humanitarian principles, but also by s 8 of the New Zealand Bill of Rights Act. That section provides:
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
[166] A just and humane society expects accountability for the deliberate taking, or attempted taking, of a human life. The issue is not one of private arrangement, but community values.
[167] In her book, which now must be accepted as essentially true, the appellant says she deliberately injected her mother with a potentially lethal dose of morphine, in order to kill her, at a time when her mother was deeply unconscious.
[168] This is not a case of a person driven to the depths of anguish and despair, acting impulsively and otherwise with greatly diminished responsibility. It is a case of a professional nurse acting deliberately. Her stance, as we have noted, has been equivocal, depending on whether her audience is public or judicial. But in the end it is a case of the deliberate taking of a life. It cannot fairly be said that in vindicating the sanctity of human life and the authority of our criminal law, the imposition of the particular sentence was manifestly excessive or wrong in principle.
[169] The appeal against sentence is also dismissed.
Solicitors:
Reeves Middleton Young, New Plymouth for Appellant
Crown Law Office, Wellington and Crown Solicitors, Wanganui
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