Parris v Attorney-General CA105/03

[2003] NZCA 400

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/03

BETWEEN  PATRICIA VALERIE PARRIS Appellant

ANDTHE ATTORNEY-GENERAL First Respondent

ANDAUCKLAND DISTRICT COURT Second Respondent

Hearing:         23 October 2003

Coram:Tipping J McGrath J Robertson J

Appearances: R J Earwaker for Appellant

A M Powell and G A J Stanish for Respondents

Judgment:      23 October 2003

Reasons:        13 November 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]      This appeal was dismissed at the conclusion of oral argument.  These are the

Court’s reasons for taking that course.

[2]      The appellant, Ms Parris, was charged with threatening to kill her partner, Mr Parris, and with wounding him with intent to cause grievous bodily harm.  At the close of all the evidence, Ms Parris having elected to give and call evidence, the

presiding District Court Judge discharged her under s347 of the Crimes Act 1961

PATRICIA VALERIE PARRIS V THE ATTORNEY-GENERAL And Anor CA CA105/03 [13 November

2003]

which, of course, had the force and effect of an acquittal.   The Crown sought a judicial review in the High Court of the District Court Judge’s order.   Harrison J found that the Judge had erred in law in coming to his decision.  He therefore set aside  the  s347  order  and  directed  a  retrial.    Ms Parris  appealed  to  this  Court, contending that Harrison J had himself erred.

[3]      On 28 June 2001 Ms Parris inflicted a series of stab wounds on Mr Parris for which he required surgery.  She used a large kitchen knife.  At one point he claimed she had threatened to cut his throat, that being the foundation for the charge of threatening to kill.  What was at issue at the trial was whether Ms Parris had formed or had the capacity to form the intention necessary to sustain the two charges.  She accepted she had stabbed Mr Parris.  She could not recall making the threat to cut his throat but contended that if she had done so she had no criminal intent.

[4]      At the trial the question whether Ms Parris had the capacity to form the necessary intent was the subject of expert evidence.  Ms Parris called Dr Sara Weeks and Dr Ian Goodwin.  In addition the brief of evidence of Dr Gail Ratcliffe was read as part of her case.  The Crown called Dr Rees Tapsell in rebuttal.  The witnesses called for Ms Parris laid a foundation for defence counsel to submit to the jury that the Crown had not proved the necessary intent in each count beyond reasonable doubt.  In his rebuttal evidence, Dr Tapsell, although not wholly consistent on the point, did say at one stage that he accepted that it was reasonably possible that Ms Parris did not have the necessary intent.  We leave aside whether actual intent as opposed to capacity to form intent was a proper subject for expert evidence.

[5]      It was on the basis of this evidence that Mr Earwaker, who has represented Ms Parris throughout, submitted to the trial Judge at the conclusion of the defence case that the jury could not properly convict.  The Judge gave an oral ruling the next morning saying that he would release his written reasons at a later date.  He never did so and there is no explanation for that omission.  In this unsatisfactory state of affairs the High Court and this Court have had no alternative but to proceed on the basis of the transcript of the Judge’s oral ruling.  The Judge has signed the transcript but unfortunately it contains a clear error of law.  Nearly at the end of his ruling the Judge said:

I am of the view that the jury, properly directed on the onus and the question of intent, would not inevitably have convicted you.

This formulation, as verified by the Judge by his signature, is so clearly wrong that there must be some doubt as to whether there has been a transcription error (quaere a reversal of the words ‘not’ and ‘inevitably’).   We cannot, however, go behind the Judge’s verification of what he said.

[6]      In the High Court Harrison J had no difficulty in concluding that there had been an error of law on the Judge’s part.  He came to the view that if the Judge had directed himself correctly the case should not have been taken away from the jury. Hence he set aside the s347 order and directed a new trial.   Mr Earwaker, who argued his client’s case in this Court with care and skill, accepted that the trial Judge had erred in his formulation of the correct test.  He nevertheless sought to persuade us that, on the correct approach, the s347 order was appropriate and that Harrison J had been wrong in that respect.  We will first identify the correct test and then apply it to the case as it stood when the trial Judge made his order.

[7]      The leading authority is R v Flyger [2001] 2 NZLR 721 (CA). We will not cover all the ground that was covered by the Court on that occasion. The key passages in the judgment, delivered by Anderson J on behalf of Thomas J, Robertson J and himself, are at 725-6 and read as follows:

[13]     The power to discharge an accused, accorded by s347(3) of the Crimes Act, is not expressed to be subject to any statutory limitation. Yet it is not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice. In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to  s347(3)  where there  is  before  the  Court  evidence  which,  if accepted, would as a matter of law be sufficient to prove the case. The Judge’s function in these  circumstances  is not  to attempt  to predict the outcome but to examine the evidence in terms of adequacy of proof, if accepted.

[14]      In R v Myers [1963] NZLR 321 Wilson J expressed the opinion that pursuant to s347(1) of the Crimes Act an accused could be discharged if:

“ . . . the Judge is satisfied that it is unlikely that any jury, properly directed, would convict, or, a fortiori, that it would be wrong for a jury to convict . . ..”

[15]     To the extent that Wilson J’s Minute may suggest a test involving judicial prediction of the verdict, we cannot agree. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury could not properly convict  and  accordingly  the  interests  of  justice  require  an  order  for discharge.  The  evidence  in  a  case  may  be  adequate,  if  accepted,  but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard  to  the  evidence.  Wilson  J’s  Minute  in  Myers  was  issued  only

13 months after the Crimes Act came into effect replacing, amongst other things, the Grand Jury Procedure, the operation of which Wilson J may have

had in mind when issuing his Minute. Subsequent authority does not support

a predictive test.

[16]      We  consider that the  correct judicial  approach  to  an  application pursuant to s347 based on alleged insufficiency of evidence is the same as dealing with an application of no case. The principle of no prima facie case, or no case to answer, is founded in the common law. It is not displaced by s347 of the Crimes Act but is incorporated in it where the submission is based on alleged inadequacy of evidence. The test preferred by Greig J and Doogue J in the cases previously mentioned in this judgment would displace the concept of no case to answer if a Judge is trying a case without a jury, indictably, but it is not displaced when a Judge is trying a case, summarily, without a jury. There is no appropriate basis for this difference. Judges can and ought to distinguish between adequacy of evidence on the hypothesis of its acceptance, at one stage of a trial, and proof of a charge on the basis of actual acceptance, at a later stage.

[8]      At paragraph [17] the Court added:

[17]     A helpful discussion of the “no case” principles is found in R v Galbraith [1981] 2 All ER 1060 at p 1062, which has been applied in New Zealand in, for example, Re Fiso (1985) 1 CRNZ 689. Lord Lane CJ said:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength  or  weakness  depends  on  the  view  to  be  taken  of  a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should

allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

[9]      We  wish,  respectfully,  to  draw  attention  to  an  aspect  of  the  Flyger formulation which Mr Powell for the Crown suggested was causing some difficulty for trial Judges.  Counsel suggested it may have led to the Judge’s approach to the evidence in the present case, putting to one side his clearly erroneous expression of the law.  Paragraph [13] of Flyger contains in line 7 the word “normally”:

Accordingly a Judge should not normally make an order for discharge pursuant to  s347(3)  where there  is  before  the  Court  evidence  which,  if accepted,  would  as  a  matter  of  law  be  sufficient  to  prove  the  case. (our emphasis)

[10]     The use by the Flyger Court of the word “normally” tends to suggest that there may be some circumstances in which a s347 order may be made when the evidence is sufficient in law to prove the case.   That cannot be so,  unless  the justification for the s347 order is something other than insufficiency of evidence. We think this is what the Flyger Court must have meant.  If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.  Of course if another ground for a s347 order exists, unrelated to the sufficiency of the evidence, that will be another matter.  No such other ground was said to exist in the present case.

[11]     There is another aspect of Flyger upon which it may be helpful for us to comment.  In paragraph [15] the sentence commencing “The evidence in a case may be adequate …” must be read in the context of the sentences leading up to it.   In those earlier sentences the Court was speaking of evidence which was “barely adequate and so tenuous”.  After the sentences in question the Court focused on the injustice of a trial continuing in such evidentiary circumstances.  In the light of this context there is not the apparent inconsistency which would arise if the sentence we are addressing is read in isolation.  If an isolated approach is taken, it is difficult to reconcile the concept of “adequate” evidence with that evidence being “discredited” or “unreliable”, but clearly the Court’s observation must be read in the light of what was said in the other parts of the paragraph.

[12]     A third matter, to which we draw attention, is that in a case of the present kind, where the s347 application and order came at the close of defence evidence, it is not particularly helpful to equate the s347 issue too closely with the “no case to answer” jurisprudence.  Rather, in this situation there will almost always have been, as here, a case to answer.  The question is rather whether the case has been answered in such a way that the jury could not now properly convict.

[13]     We suggest that it is helpful in  such  circumstances,  and  indeed  in  s347 situations generally, to correlate the exercise upon which the Judge is engaged with the  function  of  this  Court  when  considering  an  appeal  on  evidentiary  grounds. Section 385(1)(a) of the Crimes Act 1961 provides that if the verdict of a jury is unreasonable or is not supported by the evidence the appeal is to be allowed.  Hence when faced with a s347 application, whether on the depositions, at the close of the Crown case, or after defence evidence has been heard, the Judge can usefully be guided by the same concepts.  There should be a s347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence.  In most cases these two propositions are likely to amount to much the same thing.

[14]     It  is  vital,  however,  to  appreciate  the  proper  compass  of  the  word “reasonably” in this context.  The test must be administered pre-trial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury.   The issue is not what the Judge may or may not consider to be a reasonable outcome.  Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide.   If there is a conviction this Court on appeal has the  reserve power to intervene on evidentiary grounds.   The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when,  as  a  matter  of  law,  the  evidence  is  clearly such  that  the  jury  could  not reasonably convict or any such conviction would not be supported by the evidence. In making these remarks we have largely accepted Mr Powell’s submissions which properly emphasised the matters we have mentioned.

[15]     Against that legal background we now turn to the issue in this case.   The normal and natural inference which a jury is likely to draw from one person stabbing another several times with a large kitchen knife, is that the aggressor intended to cause grievous bodily harm.  Ms Parris denied that such inferences should be drawn against her on the basis that she was, at the relevant time, in a dissociated state to the point where she was acting without conscious volition.  In familiar legal terms her contention was that she was in a state of sane automatism.  It was for the Crown to satisfy the jury that Ms Parris was not in an automatic state and specifically that she had the intention necessary to constitute the crimes with which she was charged.

[16]     In seeking to persuade the jury that this was so, the Crown was entitled to rely on all the evidence available; not only the medical evidence but also the lay evidence, in particular from Mr Parris and Ms Parris herself.  The medical evidence depended to an extent on whether what Ms Parris had told the doctors and the jury was true.   That was for the jury to determine.   The Crown was also entitled to address  the  jury  on  the  basis  that  the  ultimate  issue  was  for  them  to  decide. Although the jury was obliged carefully to consider the expert evidence, they were not obliged to accept it or any aspect of it.  It would not be unreasonable in a case like the present, involving assessment of intention, for the jury to find itself unpersuaded, even if there was a consensus among the medical witnesses, that automatism was a reasonable possibility.

[17]     The position in this respect is distinguishable from a case such as R v Clark (1983) 1 CRNZ 132.  There insanity was in issue and all the evidence was that the accused was insane at the relevant time.   The Court decided that it was therefore unreasonable for the jury to come to a contrary conclusion.  Insanity is, however, a subject outside the ordinary competence of a jury to assess without expert assistance, whereas the issues of intention and voluntariness of conduct are not.

[18]     The  other  feature  of  this  case   which   made  the  trial   Judge’s   order inappropriate relates to the evidence of Dr Tapsell, upon which Ms Parris relied for her s347 application.  Mr Earwaker on her behalf relied on the fact that Dr Tapsell ultimately  accepted,  in  cross-examination,  that  it  was  reasonably  possible  that Ms Parris was in a dissociated state.  In re-examination, however, Dr Tapsell said:

What I’m suggesting is that Ms Parris may well have frankly just become sick of that and in an angry rage had done something that she after the fact realised was completely out of keeping with herself, with her own view of herself  and  her  own  view  of  the  world,  and  then  set  about  trying  to understand that.  And so to that extent what I am saying is that I think in my opinion it is more likely than not that she did have the intent to do what she did.   The reason for that being that on the basis of all of the information currently before the Court I cannot see any other rational reason as to why she might have done it.

[19]     That evidence was consistent with what Dr Tapsell had said elsewhere in his evidence.  He did not of course withdraw his acceptance that a dissociated state was a reasonable possibility but reiterated what he thought was the more likely explanation.    It  was  open  to  the  jury  in  these  circumstances  to  come  to  the conclusion on all the evidence in the case that the Crown had proved first, that Ms Parris’ conduct in stabbing Mr Parris was voluntary and secondly, that she had formed an intent to cause him grievous bodily harm.  Such a conclusion, if the jury had thought fit to reach it, could not have been described as unreasonable or not supported by the evidence.  For these reasons we agree with Harrison J that had the Judge directed himself correctly in law he could not have been satisfied that it was a proper case for a s347 discharge.

[20]     Mr Earwaker argued that even if we were of that view, there should not have been an order for a retrial.  Counsel contended that the High Court had not properly exercised its discretion in that respect.   Among the matters stressed was the time which has elapsed since the incident occurred in June 2001, and the effect on the appellant of having undergone the first trial.  It was also suggested that the order for a retrial served no useful purpose in that once Dr Tapsell had agreed he could not exclude as a reasonable possibility that Ms Parris was in a dissociated state at the relevant time, no properly instructed jury could convict her.   That, however, is simply a repetition of the argument we have already rejected.

[21]     Harrison J recognised the stress to which Ms Parris had been subjected and the inevitability of yet further delay and stress.  He held, however, that these were questions for the Crown to consider when determining if a second trial should be held.  We do not consider that Harrison J erred in the exercise of his discretion.  It is certainly unfortunate that the trial Judge  erred but he did  so  in  response  to  an

application by Ms Parris herself which should not in law have succeeded.  Society has therefore been deprived of the proper constitutional outcome of a jury verdict. The means by which Ms Parris obtained her acquittal cannot be justified in law. That prima facie should be remedied.   The features to which Mr Earwaker drew attention are obviously relevant to the Crown’s discretion when it decides whether to proceed with a second trial.   In a situation such as the present that determination should be made by the Crown unless the Court is of the view that a retrial would be so inappropriate as to amount to an abuse of process.   We do not consider the matters raised reach that level.  More precisely, we do not consider that any basis has been shown upon which we can properly differ from the way in which Harrison J exercised the High Court’s discretion in this case.

[22]     For these reasons the appeal was dismissed but without costs.

Solicitors:

Haigh Lyon, Auckland for Appellant

Crown Law Office, Wellington for Respondents