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 that after he and Ms Delzoppo had spent most of 1 May drinking, he went to bed early at around 6.00 or 7.00 pm.  He claimed that he woke up some hours later to find the house and Ms Delzoppo on fire. On his account, he did his best to help her, including getting her outside, went back into the house in an unsuccessful attempt to put out the fire and then went to the bar to summon assistance.  He initially suggested that the fire may have been caused by her smoking in bed or an accident with a candle.  Later, but only after the interviewing detective had put to him what Ms Lambert had said, he raised the possibility that “she’s done this to herself this time”. In this context he said that on one occasion she had stabbed herself in her thigh and then accused him of inflicting the injury.  As well – and very late in the interview, and after earlier denying that anything untoward at all had happened that day – the appellant suggested that there had been some difficulties between him and Ms Delzoppo (over their respective children).  It is fair to say that the difficulties he described fell well short of providing a plausible context for self-immolation by Ms Delzoppo.

[7]        The appellant was represented by an experienced Queens Counsel at trial.  He signalled a challenge to the admissibility of Ms Lambert’s evidence but then did not pursue the point.  So the Judge was not required to make a ruling.  The issue is now raised on appeal by Mr Wilkinson-Smith, who did not appear for the appellant at trial.

[8]        The admissibility of remarks made by Ms Delzoppo turns on the application of s 18 of the Evidence Act 2006.  This section provides:

18          General admissibility of hearsay 

(1)         A hearsay statement is admissible in any proceeding if—

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)  either—

(i)the maker of the statement is unavailable as a witness; or

(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

...

So the question raised by the appeal comes down to whether “the circumstances relating to the statement provide reasonable assurance” of its reliability.

[9]        Section 16 defines “circumstances” non-exhaustively and including:

(a)the nature of the statement; and

(b)the contents of the statement; and

(c)the circumstances that relate to the making of the statement; and

(d)any circumstances that relate to the veracity of the person; and

(e)any circumstances that relate to the accuracy of the observation of the person

[10]       In argument Mr Wilkinson-Smith suggested that prior to the Evidence Act 2006, the admissibility of Ms Delzoppo’s statement would have turned on whether it was a dying declaration.[1]  This then led to argument from him in which he challenged the logic underpinning the dying declaration rule and maintained that in any event it would not have been applicable here.[2]  We regard his arguments as misdirected.  This is because, prior to the Evidence Act, the statement would almost certainly have been admitted as part the res gestae, see R v Olamoe.[3]  Cases of high authority in which similar evidence was admitted include Ratten v R[4] and R v Andrews,[5] both of which involved statements made by a victim (deceased at the time of trial) to persons other than the accused.  

[1]See for instance R v Woodcock (1789) 1 Leach 500, 168 ER 353 (CCC).

[2]We agree that it would not have applied because it is not clear that Ms Delzoppo had a settled expectation of death at the time she spoke to Ms Lambert.

[3]R v Olamoe [2005] 3 NZLR 80 (CA).

[4]      Ratten v R [1972] AC 378 (PC).

[5]      R v Andrews [1987] 1 All ER 513 (HL).

[11]       The res gestae criteria adopted by the courts for determining admissibility of statements such as Ms Delzoppo’s were closely associated with reliability, and thus the enquiry mandated by the Evidence Act 2006.  These criteria were usually associated with the spontaneity of the remarks, their close proximity in time and location to the events to which they related and their logical connection with those events and their consequences. To apply that logic to the present facts:

(a)In a real sense, the events to which Ms Delzoppo was referring were still on-going.  The house was still on fire.  There were things to do, in particular getting Ms Delzoppo to the ambulance.  That petrol had been poured on her and set alight was relevant to her condition and thus perhaps her eventual treatment.  And once Ms Delzoppo had said that the appellant had set her alight, his whereabouts were material to the continuing safety of the two women.  The fact that he had run away was thus of contextual significance and presumably was of some reassurance to Ms Lambert.  Ms Lambert was doing her best to assist Ms Delzoppo who, in this context, had every reason to be co-operative and candid.

(b)If it was not the appellant who poured petrol on Ms Delzoppo and set her alight, she must have done so herself. She could hardly have been mistaken.  And the horrific nature of what happened and what must have been its overwhelming effect on Ms Delzoppo’s thinking tell strongly against any concoction theory.

[12]       Very similar considerations have resulted in the same sort of evidence being admitted under the res gestae principles in the cases to which we have referred.  This Court generally prefers to address the interpretation and application of the Evidence Act without reference to the previous case law, and s 17 provides that hearsay statements are admissible only in accordance with the provisions of the Act.  Accordingly, the res gestae cases cannot be directly relied on to admit the disputed hearsay evidence. However, in this instance we see the logic as to why Ms Delzoppo’s statement would have been admissible at common law as equally relevant under the s 18 enquiry.  In light of the considerations referred to in [11] we are of the provisional view that the circumstances associated with the making of the statement provide a reasonable assurance of its reliability.

[13]       In his submissions Mr Wilkinson-Smith suggested that there were certain considerations which are material to the reliability assessment and which, at least in totality, ought to have led to the statement being rejected. 

[14]       Some of these considerations involve issues of competence as to the ability of Ms Delzoppo to give an accurate account (and thus engage (e) of the definition of “circumstances”).  She was an alcoholic and had been drinking on 1 May 2008.  Mr Wilkinson-Smith also maintained that she had what he described as a “history of mental illness” and he claimed that she may have been so affected by her injuries as to be unable to give an accurate account. 

[15]       It is true that Ms Delzoppo was an alcoholic and had been drinking on 1 May 2008.  It is not entirely clear how much she had to drink but it may have been sufficient to affect her speech as Ms Lambert noted that she was slurring her words.  Ms Delzoppo’s mental health issues involved eating and mood disorders and her alcoholism and she had, on occasion, self-harmed, taken drug overdoses and threatened suicide.  But, significantly, her last engagement with the mental health system was in 2003.  As well, Mr Wilkinson-Smith did not point to any expert evidence to suggest that Ms Delzoppo’s ability to give an accurate account of events to Ms Lambert was compromised by her injuries.

[16]       It is possible to break what Ms Delzoppo said into five propositions:

(a)petrol had been poured on her;

(b)petrol had also been poured in the house;

(c)the appellant had been the person who had poured the petrol;

(d)he ignited the petrol; and

(e)he had run away. 

The first, second and fifth propositions were undoubtedly true.  So to the very large extent that what she said can be externally referenced to undeniable facts, she gave a completely accurate account of events.  As well, it will be recalled that when Ms Lambert first suggested that they go down the driveway to the ambulance, Ms Delzoppo was sufficiently well orientated to demur initially to the suggestion because she had no clothes on the bottom half of her body. 

[17]       All in all we do not see the competence factors raised by Mr Wilkinson-Smith as detracting from our provisional assessment of reliability.

[18]       The other considerations relied on by Mr Wilkinson-Smith relate to the theory that what Ms Delzeppo told Ms Lambert may have been a concoction.  He particularly relied on her history of self-harming behaviour and an assertion made by the appellant at interview that on one occasion she had blamed him for injuries she had inflicted on herself.  Because these are associated with the veracity of Ms Delzoppo, they fall to be considered under (d) of the definition of “circumstances”. 

[19]       It is important to recognise that this argument is not consistent with the way in which the defence case was run at trial.  In particular, it was not suggested by the defence at trial that Ms Delzoppo had concocted what she told Ms Lambert.  Rather the primary challenge was to whether Ms Lambert had correctly understood what she was told.  This was part of a broader defence strategy which principally seems to have involved putting the Crown to proof.  Although this strategy was, in the context of the facts of the case, not very likely to be successful, we suspect that defence counsel was left with little choice.

[20]       The problem for the defence has always been the implausibility of the theory that Ms Delzoppo set herself alight.  Given the evidence as to the way in which petrol was used as an accelerant it is inconceivable that she could have done so accidentally.  And if Ms Delzoppo had immolated herself using petrol, it might be thought that the appellant would have realised that this had happened and would be likely to have had some idea of why she had done so.  As is apparent from what we have said, his statement to the interviewing detective is not plausibly consistent with the self-immolation theory.  In this context, it is understandable that the defence case at trial was reasonably diffuse. 

[21]       When assessing reliability (including veracity), it is tempting to take into account all the considerations which are relevant to whether Ms Delzoppo’s statement was accurate.  These would include the implausibility of the alternative self-immolation theory and also the strength of the other circumstantial evidence implicating the appellant.  But we accept that the overall statutory focus is on reliability rather than accuracy and that the s 18 inquiry must address this in light of circumstances (as defined) relating to the statement rather than in terms of the congruence between what Ms Delzoppo said and the overall facts of the case.  But given items (a) and (b) of the definition of “circumstances” (the nature and contents of the statement) some context may be relevant.  Indeed, as our discussion of the competence considerations shows (see [16]), it is not possible to approach the reliability assessment in a complete vacuum.  Clearly any tendency on Ms Delzoppo’s part to lie can only be material if, in light of the other relevant circumstances (particularly those referred to in s 16), it detracts from the reliability of the statement in issue.  And, if material, any such tendency is only one of a number of considerations which must addressed. 

[22]       The broader the “circumstances” inquiry here, the stronger the case for the Crown as to reliability becomes.  Given this, we are content to take a relatively narrow approach.

[23]       The only “evidence” impeaching the veracity of Ms Delzoppo to which we are taken is the appellant’s claim at interview of Ms Delzoppo having stabbed herself and blaming him.  But leaving aside what was said at interview, no evidence as to this alleged incident was led.  In the present context, this unsupported and unsworn claim simply does not cut the mustard.  And in any event, if we were to make all assumptions in favour of the appellant, there is a world of difference between the incident he described and the self-immolation and later concocted attribution of blame which Mr Wilkinson-Smith attributes to Ms Delzoppo. 

[24]       Accordingly we conclude that the considerations relied on by Mr Wilkinson-Smith do not detract from the reality that the circumstances relating to the statement give a reasonable assurance of reliability.

[25]       So the appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington