Mills v R - [2010] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND
CA689/2009
[2010] NZCA 286
BETWEENGARY DONALD MILLS

Appellant

ANDTHE QUEEN

Respondent

Hearing:24 June 2010

Court:William Young P, O'Regan and Randerson JJ
Counsel:C B Wilkinson-Smith for Appellant

B J Horsley for Respondent

Judgment:5 July 2010 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
[1]        The appellant was found guilty of arson and murdering Lyn Delzoppo. For the eight years or so before 1 May 2008, the appellant and Ms Delzoppo had lived together. Sometime after 10.00 pm on 1 May, Ms Karen Lambert, who lived nearby, became aware of a fire at their house. She rang 111 and then went to the house. Near the house and by a dog kennel, she found Ms Delzoppo lying on the ground. In response to questions from Ms Lambert as to what had happened, Ms Delzoppo said that the appellant had put petrol on her and in the house and then set her and the house on fire. She also told Ms Lambert that the appellant had run away. The sole issue on appeal is the admissibility of what Ms Delzoppo told Ms Lambert.
[2]        A few other contextual facts are necessary for an understanding of the case.
[3]        When Ms Lambert proposed to Ms Delzoppo that they walk down the driveway to the ambulance, Ms Delzoppo initially demurred because she did not have clothes on the lower part of her body (as her knickers had been burnt off). Eventually, with assistance and some difficulty, she was able to make her way to the ambulance. But shortly after she got into the ambulance, she had a seizure. She eventually died in hospital four weeks later without having spoken again.
[4]        It is clear from the forensic evidence that petrol had been poured on Ms Delzoppo. The forensic evidence suggested that this had happened to her on her bed. Petrol had also been poured on the floor in the bedroom and in other areas of the house. It is likewise clear that someone had ignited the petrol. It is also the case that the appellant ran away from the house and went to a local bar. There he referred first to the house having been destroyed (saying things like “it’s all gone, my house is burnt”) and then to having got “little Lynnie” out of the house. When asked if anyone had called the fire brigade he said, “I think we better do that”. The 111 call which was made as a result came after the 111 calls from neighbours.
[5]        A petrol container containing several litres of petrol had been on the property but was never located. On the Crown case it must have been disposed of by the appellant after he had lit the fire.
[6]        The appellant did not give evidence at trial. But in a statement to the police made in the early hours of 2 May 2008 he said…

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 Mills v R

Details

AGLC: Mills v R [2010] NZCA 286
Case: [2010] NZCA 286
Decision Date: 5 July 2010

CaseChat Overview and Summary

In Mills v R, the Court of Appeal of New Zealand considered an appeal against conviction for arson and murder. The appellant, Gary Donald Mills, was found guilty of setting fire to his house and murdering his partner, Lyn Delzoppo, by pouring petrol on her and setting her alight. The central issue on appeal was the admissibility of statements made by Delzoppo to a neighbour, Ms Lambert, who found her severely burned outside the house. The appellant contended that these statements should not have been admitted as evidence.

The court examined the admissibility of Delzoppo's statements under section 18 of the Evidence Act 2006, which allows hearsay statements if they are reliable and if the declarant is unavailable or if requiring their testimony would cause undue delay or expense. The court acknowledged that prior to the Evidence Act, such statements might have been admitted under the res gestae doctrine, which considers statements made in the course of an event and closely related to it. The court found that the criteria for admissibility under res gestae were closely aligned with the reliability criteria under the Evidence Act. Given the immediacy of Delzoppo's statements, their logical connection to the events, and the context in which they were made, the court concluded that they provided a reasonable assurance of reliability.

The court also addressed arguments regarding Delzoppo's competence and veracity. Although Delzoppo had a history of alcoholism and mental health issues, the court found that these factors did not significantly undermine the reliability of her statements. The appellant's claim that Delzoppo had a history of self-harm and blaming him for her injuries was deemed insufficient to cast doubt on the reliability of her statements. The court found that the circumstances surrounding the making of the statements provided a reasonable assurance of their reliability.

The appeal against conviction was dismissed, and the court upheld the appellant's convictions for arson and murder.

Orders