Osborne v The Queen
[2020] NZCA 192
•28 May 2020 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA179/2008 [2020] NZCA 192 |
| BETWEEN | RATIMA JOSEPH OSBORNE |
| AND | THE QUEEN |
| Hearing: | 30 April 2020 |
Court: | Kós P, Miller and Collins JJ |
Counsel: | V C Nisbet and S W O Campbell for Applicant |
Judgment: | 28 May 2020 at 2.30 pm |
JUDGMENT OF THE COURT
The application for recall of judgment Osborne v R [2010] NZCA 372 is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
On 27 May 2002, Mr Osborne, who at the time was 17 years old, pleaded guilty to having murdered Mr Johnson on 9 July 2001. He was sentenced by Potter J to life imprisonment immediately after he entered his guilty plea. It appears the Crown did not seek a minimum period of imprisonment (MPI) greater than the statutory minimum of 10 years.[1]
[1]Criminal Justice Act 1985, s 80.
On 16 August 2010, this Court dismissed Mr Osborne’s appeal against conviction.[2] It did so after being satisfied no miscarriage of justice arose through Mr Osborne having pleaded guilty to murder. Two grounds were relied upon in support of the appeal:[3]
(a)His trial lawyer, Mr Fairbrother, gave wrong advice to Mr Osborne to plead guilty. This argument was founded on the proposition that the partial defence of provocation was available to Mr Osborne and that he could also have relied upon the defence that he lacked murderous intent.[4]
(b)Mr Osborne did not understand what he was doing when he pleaded guilty.
[2]Osborne v R [2010] NZCA 372.
[3]R v Le Page [2005] 2 NZLR 845 (CA) at [16], citing R v Stretch [1982] 1 NZLR 225 (CA); and R v Ripia [1985] 1 NZLR 122 (CA). See also Whichman v R [2018] NZCA 519 at [35]; and Mills v R [2020] NZCA 88 at [22].
[4]Crimes Act 1961, s 169. This defence was repealed on 8 December 2009 by s 4 of the Crimes (Provocation Repeal) Amendment Act 2009.
Mr Osborne then sought leave to appeal to the Supreme Court. He acted for himself when he made that application. In the Supreme Court Mr Osborne disavowed any reliance on the partial defence of provocation. Instead, he raised an alibi argument. The application for leave to appeal to the Supreme Court was dismissed on 10 November 2010, with the Supreme Court finding that no miscarriage of justice arose from Mr Osborne’s guilty plea and that his proposed appeal had no prospects of success.[5]
[5]Osborne v R [2010] NZSC 134.
Mr Osborne now applies to have this Court exercise its inherent power to recall its judgment of 16 August 2010. In exceptional cases this Court may revisit its determination of a criminal appeal. The scope of this jurisdiction, however, is very limited and requires Mr Osborne to satisfy three criteria:[6]
(a)that there was a “fundamental error in procedure” that caused something to go “seriously wrong with the appeal process”; and
(b)a substantial miscarriage of justice would result if the error is not corrected; and
(c)there is no alternative remedy available.
[6]R v Smith [2003] 3 NZLR 617 (CA) at [36]; Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [27]; and McMaster v R [2016] NZCA 612 at [62].
Mr Osborne argues that an error of procedure occurred when this Court determined his appeal against conviction. It is argued this Court:
(a)failed to evaluate evidence that supported the argument Mr Osborne could have relied on the partial defence of provocation had he stood trial; and
(b)failed to take into account evidence of Mr Osborne’s inability to understand what he was doing when he pleaded guilty. Support for this argument is said to be contained in a psychiatric report from Dr McCormick prepared in 2009, which was provided to this Court when it heard Mr Osborne’s appeal, and in a further psychiatric report prepared by Dr Judson on 14 October 2019.
It is contended that either or both of these scenarios led to a substantial miscarriage of justice.
Background
The offending
The Crown case is that on the day he was killed Mr Johnson was hitchhiking near Taupō. He was picked up by Mr Osborne, who drove to a secluded spot on the banks of Lake Whakamaru, which forms part of the Waikato River. There, Mr Osborne attacked Mr Johnson, ran over his body with his vehicle and then threw Mr Johnson’s dead body into the river. The next day Mr Osborne and his father set fire to Mr Osborne’s car in an effort to destroy evidence of the homicide. Mr Osborne’s father pleaded guilty to being an accessory after the fact. That plea was entered on the same day Mr Osborne pleaded guilty to murder.
The forensic evidence suggested Mr Johnson had been subjected to a prolonged and brutal attack. His physical injuries included extensive scalp lacerations and deep wounds to the back of his head. Mr Johnson also suffered extensive injuries to his face, arms, back and legs. He had a burn wound over his right thigh and buttock consistent with injuries caused by him having been run over by a vehicle and dragged some distance. The scene of the homicide included two distinct pools of congealed blood. The pathologist who conducted the post-mortem concluded Mr Johnson had died from “hypovolemic shock” arising from extensive bleeding from his scalp and head injuries. He concluded the injuries were inflicted over a two to four-hour period prior to death. Another pathologist reasoned that the time from the assault to death was likely to have been three to four hours.
Statements made by Mr Osborne
On 13 July 2001, the police arrested Mr Osborne in relation to an aggravated robbery that had occurred on the same day as Mr Johnson was killed. During the course of investigating that robbery the police started to suspect Mr Osborne may have killed Mr Johnson. He was interviewed and made three contradictory statements to the police.
In his first statement made on 27 July 2001, Mr Osborne said that two men, Mr Rapatini and Mr Ratima, had borrowed Mr Osborne’s car and killed Mr Johnson before returning the bloodstained vehicle to him. Mr Osborne maintained he was not present when Mr Johnson was killed.
In his second statement, Mr Osborne said he was present with Mr Rapatini and Mr Ratima when they assaulted Mr Johnson. Mr Osborne said he drove his car into Mr Johnson after receiving an inducement from Mr Rapatini to be “patched up” if he ran over Mr Johnson. We understand this was an offer for Mr Osborne to become a full member of the Mongrel Mob if he did as he was told.
Mr Osborne’s third statement to the police was relatively brief. Before the interview recording system started, Mr Osborne told the interviewing officer that he was solely responsible for Mr Johnson’s death. Once the video recording started, however, Mr Osborne recanted his admission.
Mr Osborne was arrested and charged with murder on 30 July 2001. Soon thereafter Mr Fairbrother was instructed to represent Mr Osborne. While he was on remand, Mr Osborne made a statement to a fellow prisoner in which he said that when he was driving Mr Johnson north of Taupō, the deceased placed his hand on Mr Osborne’s thigh. Mr Osborne interpreted this as an unwanted sexual advance by Mr Johnson. There was some support for this account, as there was evidence that Mr Johnson had made advances to other men in Taupō on the day he was killed.
Mr Fairbrother considered this account may provide a basis for the partial defence of provocation. Three questions relevant to this defence were:[7]
(a)whether the provocation did cause Mr Osborne to lose the power of self-control; and, if so,
(b)did that lead to him killing Mr Johnson; and
(c)whether the provocation relied on was sufficient to deprive an ordinary person with Mr Osborne’s characteristics of the power of self-control.
[7]R v Timoti [2005] NZSC 37, [2006] 1 NZLR 323 at [33].
Mr Fairbrother arranged for Mr Osborne to be interviewed by another barrister, Mr Farquhar. That interview occurred on 31 October 2001. In that statement, Mr Osborne said he picked Mr Johnson up in Taupō and drove him north. Soon after Mr Johnson got into the car he placed his hand on Mr Osborne’s thigh. Mr Osborne stopped his car and told Mr Johnson to get out. Mr Johnson continued to make advances towards Mr Osborne. Mr Osborne responded by striking Mr Johnson on the nose. Mr Johnson got out of the car and opened the driver’s door. A fight then ensued during which Mr Johnson called Mr Osborne “boy” and told him that he was “going to get it”. At one point, Mr Osborne said he put on a pair of steel-capped boots and kicked Mr Johnson several times. Mr Osborne then said he forced Mr Johnson, who was still conscious, to the side of the lake and pushed him in. Mr Osborne claimed he then drove off leaving Mr Johnson standing in the lake and remonstrating. In this statement, Mr Osborne said that he had “lost it” and “started freaking out” because of Mr Johnson’s sexual advances and that he had no intention of killing the deceased.
Mr Fairbrother sought a quote from a psychiatrist who may have been able to provide a report on whether or not Mr Osborne had special characteristics, which would have made him more likely to lose self-control when faced with an unwanted sexual advance from another man. He thought that Mr Osborne might be diagnosed with post-traumatic stress disorder. Ultimately, Mr Fairbrother did not pursue the option of obtaining a psychiatric report prior to trial, as he did not understand that Mr Osborne’s statement would support it. The statement spoke more of controlled anger than provocation. He did not believe there was sufficient material to justify asking legal aid authorities to fund a psychiatric report.
Circumstances of the guilty plea
During the days leading up to the scheduled commencement of the trial, Mr Fairbrother reviewed the evidence and concluded it would be in Mr Osborne’s best interests to plead guilty to murder. Three factors underpinned this change of approach:
(a)Mr Osborne would need to give evidence in order to establish the factual foundations for the partial defence of provocation. Mr Fairbrother appreciated that Mr Osborne would be a poor witness and that giving evidence was likely to further harm his position.
(b)Mr Osborne’s statement to Mr Farquhar was difficult to reconcile with the forensic evidence, which showed Mr Johnson had died from a prolonged and vicious beating and that he had received injuries consistent with having been run over by a vehicle. The forensic evidence also conflicted with Mr Osborne’s statement that Mr Johnson was conscious and was left standing in the waters of Lake Whakamaru when Mr Osborne left the scene.
(c)There was a realistic possibility that by pleading guilty Mr Osborne could avoid the imposition of an MPI greater than ten years.
On the morning the trial was scheduled to start, Mr Fairbrother met with Mr Osborne to discuss a change of plea. Mr Fairbrother sought the assistance of Ms Cooper, his junior, to speak to his client. Mr Fairbrother thought that as Ms Cooper is Māori, she may have more easily related to Mr Osborne, who is also Māori.
Mr Osborne Snr, who was a member of the Mongrel Mob, also spoke to his son about pleading guilty. He did so after Mr Fairbrother had taken instructions, though there is evidence that he had access to his son when they were on remand in the same prison. Mr Nisbet characterised the involvement of Mr Osborne Snr in the plea as extremely irregular. It would cause concern if there were any suggestion that Mr Osborne Snr placed undue pressure on his son to plead guilty to murder, perhaps to protect other members of the Mongrel Mob. That possibility concerned Ms Cooper when she advised him. It was noted by this Court in its 2010 decision when it was said there had been references to a gang-related motive. This Court also noted that in two of his statements Mr Osborne had named two other men who he claimed had borrowed his car to murder Mr Johnson, only to later take sole responsibility. Mr Osborne does not say that he acted out of pressure from his father or the gang, or that he has “taken the rap” for anyone else. He has never made that claim in any of his appeals.
All acknowledge the circumstances surrounding the change of plea were far from ideal. Mr Osborne was a young man with limited intellectual abilities, who had a very troubled upbringing which included alcohol, drug and sexual abuse. Mr Osborne went to Court on the morning his trial was to start, expecting to defend the murder charge. The Judge did not place Mr Fairbrother under pressure of time. After empanelling the jury she sent the jury away for the morning and she allowed Mr Fairbrother use of the courtroom. He deposed that she gave him “all the time [he] needed”. But it must nonetheless have been a challenging experience for Mr Osborne to come to terms with the advice that he received from Mr Fairbrother and Ms Cooper, who deposed that he was shaking and began to cry during their interview. Mr Osborne did, however, accept the advice that he was given. He signed an acknowledgement and pleaded guilty.
2010 appeal
In April 2008 Mr Osborne filed an appeal against his conviction. In 2009 he was granted an extension of time to pursue an appeal out of time.[8] Ms Dyhrberg was appointed to assist Mr Osborne in advancing his appeal.
[8]Osborne v R [2009] NZCA 168.
An examination of Ms Dyhrberg’s submissions reveal that the focus of the appeal was on the appropriateness of Mr Fairbrother’s advice to Mr Osborne to plead guilty. The essence of the arguments put forward by Ms Dyhrberg were:
(a)Mr Johnson had engaged in two sexual advances on other men on the day he was killed. This evidence had been disclosed by the police and was candidly acknowledged by the Crown.
(b)Mr Osborne lost his self-control when Mr Johnson touched his thigh, and that loss of self-control led to him killing Mr Johnson. It was also argued, however, Mr Johnson lacked murderous intent.
(c)Mr Osborne had special characteristics and that an ordinary person with his characteristics would also have lost their power of self‑control in the circumstances that Mr Osborne found himself in.
The evidence of Mr Osborne having special characteristics was substantially contained in a psychiatric report prepared by Dr McCormick on 28 June 2009. Dr McCormick said Mr Osborne’s description of events to Mr Farquhar was consistent with a form of “dissociative state” that might be linked to Mr Osborne’s childhood experiences of sexual abuse. Dr McCormick said:
It is possible, therefore, that when the victim made homosexual advances towards Osborne that he entered in to a flashback situation, Osborne experiencing the man’s homosexual advances as analogous to his own past experience(s)… At some point he may well have been triggered in to memories and feelings that had been repressed following his earlier abuse and at some point he may have entered into a dissociative state. There is evidence to suggest in Osborne’s own statement that he began to experience a “rage” reaction which is suggestive of loss of control and may explain why the injuries that he inflicted on the victim were so extensive.
While Ms Dyhrberg’s submissions refer to there being a concern about whether Mr Fairbrother’s advice was properly understood by Mr Osborne in circumstances where the advice was given for the first time on the morning of trial, no attempt was made to argue that Mr Osborne lacked the requisite competence to plead guilty.
Mr Osborne and Mr Fairbrother gave evidence during the hearing of the appeal. This Court concluded:
(a)Mr Osborne was not a truthful witness.[9] He lied to the police multiple times and he changed his version of events in this Court. Mr Osborne’s inability to give an accurate account of what happened would seriously compromise his ability to lay a factual foundation for the partial defence of provocation.
[9]Osborne v R, above n 2, at [35].
(b)The account Mr Osborne gave to Mr Farquhar was the most favourable statement he made. It was, however, significantly at odds with the detailed forensic evidence concerning the circumstances under which Mr Johnson was killed.[10]
[10]At [17]–[18].
(c)The advice given by Mr Fairbrother was rational and did not amount to trial counsel error.[11]
[11]At [22]–[26].
(d)Mr Osborne knew what he was doing when he entered his plea of guilty.[12]
[12]At [36]–[39].
Recall application: additional evidence
Dr Judson’s report contains information that was not before this Court in 2010. The key points that can be taken from Dr Judson’s 2019 report are:
(a)Mr Osborne had limited intellectual capacity. An Intelligence Quotient (IQ) assessment that was undertaken in February 2014 placed Mr Osborne’s IQ score at 70, which is on the border between intellectual disability and borderline intellectual functioning. It is likely, however, that his cognitive capacity was a little higher before the onset of schizophrenia, which was first diagnosed in 2011.
(b)Psychiatric assessments of Mr Osborne in 2001 and 2002 led to a diagnosis of anti-social personality but no psychotic illness.
(c)Evidence of psychotic illness in Mr Osborne began to emerge in 2006. He has been treated as a special patient since 2013, after he was diagnosed as suffering from schizophrenia.
(d)Mr Osborne was probably suffering from a degree of intellectual impairment at the time he entered his plea. He also had the disadvantages of having been brought up in a neglectful family environment that involved him having suffered sexual abuse. Mr Osborne became immersed in drugs and criminal offending at an early age.
(e)Mr Osborne’s history of sexual abuse was summarised in the following way by Dr Judson:
It is reported on files that he had been sexually abused by a male cousin when he was 7 or 8 and subsequently by a female cousin in his teens, and he has also spoken about being sexually abused when in CYFS care… [A]t the age of 14, when he made a suicide attempt by hanging, he had problems with flashbacks of past [sexual] abuse.
(f)Significantly, Dr Judson concluded that “[o]n balance” he was “not convinced that [Mr Osborne’s] capacity at the time of his trial would have been sufficiently impaired to render him unfit to enter a plea”.
Analysis
Was there a “fundamental error in procedure?”
As this Court noted in Lyon v R,[13] there are differences of view about the scope of the requirement that there be a “fundamental error in procedure” as a precondition to recalling a judgment. For present purposes, we proceed on the basis that a fundamental error in a trial that was not addressed on appeal may engage the “fundamental error in procedure” precondition but without deciding the point.
[13]Lyon v R, above n 6, at [28]–[29].
Mr Osborne’s application for recall is predicated on the argument that a fundamental error of procedure occurred when this Court failed to mention Dr McCormick’s 2009 report in its judgment. It is said that there was evidence the deceased had made unwanted sexual advances on other men and that Dr McCormick and Dr Judson’s reports lend weight to the claim that Mr Osborne may have been provoked at the time he killed Mr Johnson.
The difficulty which Mr Osborne’s submissions fail to adequately address is that this Court carefully assessed Mr Osborne’s argument that the defence of provocation was available to him and concluded that the chances of provocation succeeding were “remote”.[14] That conclusion was reached after this Court:
[14]Osborne v R, above n 2, at [21].
(a)observed Mr Osborne give evidence. He was a poor witness, whose accounts of the circumstances surrounding Mr Johnson’s death varied markedly. Mr Osborne’s evolving explanations were highly unlikely to provide a satisfactory platform for a provocation defence. They did not indicate that he lost control; for example, he explained in his statement to Mr Farquhar that he had gone and put on his steel-capped boots during the assault. The evidence also suggested the assault on Mr Johnson took place over a lengthy period of time;
(b)concluded the most favourable narrative advanced by Mr Osborne was seriously at odds with the detailed forensic evidence concerning the circumstances of Mr Johnson’s death; and
(c)assessed Mr Fairbrother’s explanation for deciding there was little prospect of provocation succeeding. This Court agreed with Mr Fairbrother’s analysis.
This Court was confident there was not a sufficient factual basis to support provocation. Absent a realistic factual foundation for the defence it was not necessary for this Court to explore the special characteristics evidence set out in Dr McCormick’s evidence.
Mr Nisbet was very critical of the Court for what he characterised as a grave omission by failing to explore the question of special characteristics. However, sight should not be lost of the fact that the appeal in 2010 was almost entirely focused upon whether or not Mr Fairbrother erred when he concluded provocation was not a viable option in Mr Osborne’s case. Once the Court concluded there was no sound factual foundation for provocation, the argument Mr Fairbrother had misled his client into pleading guilty evaporated. The new evidence from Dr Judson does not alter that conclusion.
The argument that there was a fundamental error of procedure is also now based on the contention that this Court failed to give proper consideration to whether or not Mr Osborne properly understood the advice that he was given and whether he had the capacity to enter a guilty plea. As noted above, the written submissions of counsel at the 2010 hearing raised the possibility that Mr Osborne did not understand the advice he was given but it was not suggested that he lacked competence to plead.
The difficulty with this argument is that although it is clear that Mr Osborne experiences deficits in intellectual functioning and was intellectually impaired at the time of his plea, there is still no evidence that he lacked capacity to plead. Dr Judson’s report provides further details about Mr Osborne’s limited intellectual capacity. Ultimately, however, Dr Judson thought it likely Mr Osborne had the requisite capacity when he entered his guilty plea in 2002. There is no doubt Mr Osborne was in a seriously disadvantaged position, but considerable care was taken by Mr Fairbrother and Ms Cooper to explain the circumstances to him. Dr Judson’s report strongly supports the decision made by Ms Dyhrberg in 2010.
There is, therefore, no basis upon which we could conclude there was a fundamental error of procedure in the 2010 appeal.
Would a substantial miscarriage of justice arise if the application to recall is declined?
There are two limbs to this part of Mr Osborne’s application. It is contended a substantial miscarriage will arise because:
(a)the provocation defence will not be able to be properly tested at trial; and
(b)Mr Osborne lacked a proper understanding of what he was doing when he pleaded guilty.
We have already addressed these arguments when concluding there was not a fundamental error of procedure. We accept that the circumstances surrounding the entry of the guilty plea are of concern, but the Court appreciated that in 2010. It heard evidence on the point. It then focused on the central question whether there was a defence. The difficulty that Mr Osborne faced then, and still faces, is that there is no clear narrative for provocation and none has been offered that can accommodate the forensic evidence. That being so, we are not satisfied that a miscarriage of justice occurred when Mr Osborne was persuaded there was no merit to pursuing a provocation defence. Nor did any miscarriage of justice arise in relation to the way Mr Osborne changed his plea.
Is there an alternative remedy available?
Mr Osborne’s counsel accepts that an application to the Governor-General to exercise her prerogative of mercy powers is available but has not been pursued. It is also possible Mr Osborne may be able to apply to the Criminal Cases Review Commission when it comes into being on 1 July 2020. There are, therefore, alternative remedies available to a recall of this Court’s 2010 judgment.
Mr Osborne’s difficulties in pursuing a recall application are further compounded by the fact the Supreme Court has already determined no miscarriage of justice arose from the 2010 appeal. Absent any new evidence that might establish a defence, it is difficult to see how this Court can effectively overturn the Supreme Court’s decision through the recall procedure. It will be for Mr Osborne and his legal advisors to decide whether there is any merit in pursuing a further application for leave to appeal to the Supreme Court.
Result
None of the criteria required for a recall of this Court’s judgment have been established.
The application for recall of judgment Osborne v R [2010] NZCA 372 is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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