R v A HC Auckland Cri-2007-004-27374

[2009] NZHC 797

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-004-027374

THE QUEEN

v

A

Hearing:         1 July 2009

Appearances: D A Marshall and N R Williams for the Crown

P Kaye and P E Dacre for the Accused

Judgment:      10 July 2009 at 5.00 pm

Reasons:        10 July 2009

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 10 July 2009 at 5.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Crown Solicitor, Auckland

Peter Kaye, Barrister, Auckland

Paul Dacre, Barrister, Auckland

R V A HC AK CRI-2007-004-027374  10 July 2009

[1]      Mr A   is charged with one count of murder.  At the conclusion of the Crown  and  defence  cases,  I  heard  argument  as  to  whether  the  defences  of automatism and provocation should be allowed to go to the jury.   I ruled that the defence of automatism should not, and that the defence of provocation should be allowed to go to the jury.  I now give my reasons.

Background facts

[2]      It is common ground between the Crown and defence that on the evening of

7 December  2007,  Mr  A    returned  with  the  deceased,  Mr  Brown,  to Mr Brown’s home in Onehunga.   They had some drinks.   At some time, a sexual advance, (perhaps later repeated) was made by Mr Brown to Mr A  .  It is also common ground that Mr A   beat Mr Brown around the head first with a banjo, and  then  the  weight  from  a  dumbbell.    This  beating  occurred  on  the  stairs  in Mr Brown’s house.

[3]      Either before or after that beating, Mr A   ransacked the downstairs of the  house,  overturning  furniture  and  emptying  shelves.     After  the  beating, Mr A   went upstairs and proceeded to wreck the upstairs of the house.   He overturned furniture, and ripped fittings from the wall, in particular a bathroom basin and cabinet.  He smashed large windows in an upstairs bedroom, and threw items of furniture and personal possessions of Mr Brown out of the windows.   The item thrown out of the window included the frame of a double bed, and the bed itself.

[4]      When police arrived, Mr Brown was found unconscious on the stairs with very serious head injuries.   He had the broken neck of the banjo inserted in his mouth.  Mr A   had thrown so many items from upstairs on to the stairs above where Mr Brown lay, that the stairs were almost impassable.   The stair area was heavily spattered with blood.  Forensic analysis established that the items had been thrown on to the stairs after Mr Brown had been beaten.  Examination of the scene

also revealed smears of faeces on the area downstairs.  A soiled pair of underpants and trousers, believed to be Mr Brown’s, were found upstairs.

[5]      Neighbours  reported  that  they  had  heard  loud  shouting  in  an  Eastern European accent for some time before the police had arrived.   Indeed, it was that noise which had caused many of the neighbours to phone the police.   When the police arrived, the accused was standing upstairs, throwing items out of the window, and shouting loudly in Hungarian.

[6]      Police  officers  attempted  to  engage  Mr  A    in  conversation.    He answered their questions including answering a request in English for his name. When asked if he would come down, he suggested to the police officer that he should instead come up.   Following that exchange Mr A   came downstairs. Although initially calm, he again became agitated when police officers restrained him.

[7]      Mr A   was taken from the scene to a police cell.  Whilst in the cell at the police station he manipulated a cut to his finger that he had got at the scene, managing to heavily smear the cell walls and his face with blood.  Because of the amount of blood involved the police became concerned that Mr A   had injuries more extensive than the cut on his finger.  He was taken to hospital.  Because he was so agitated he had to be restrained both during transportation, and at the hospital.

[8]      Some of  the hospital  staff  who  treated  Mr  A    were  called  to  give evidence.  Nurse Ridyard described Mr A   as being initially very agitated, but calming after Dr Rosie had spoken to him.   Dr Rosie described Mr A   as speaking in a disconnected way, but said that there was an underlying theme to his statements, which was that he was upset with his treatment.   Mr A   made reference to hobbits and Nazi Germany, and Dr Rosie understood these to be complaints about his treatment.  Mr A   told Dr Rosie that when he qualified from university he would be a proper doctor.  Dr Rosie understood the suggestion to be that Dr Rosie was not a proper doctor.  No injuries other than the cut to the finger were noted.

[9]      Mr A   was returned to a different cell at the police station.  By 7.00 am the next morning he was calm.  He was interviewed by police at about 9.00 am, and was calm during the interview.  Through an interpreter he explained that he felt very drunk when he was at Mr Brown’s.  He remembered having a beer, and two strong drinks of Jim Beam.  After they had been drinking for a time Mr Brown touched him on the thigh.   He indicated clearly to Mr Brown that he was not interested and pushed his hand away.  He then had another drink with Mr Brown.  At some point Mr Brown went upstairs, turning the lights downstairs off or down.  He called for Mr A   to come upstairs.  Mr A   wanted to leave, but couldn’t find a way out. Initially Mr A   said he couldn’t remember anything after that.   Further on in the interview he said he had limited memory, but thought he went upstairs and that Mr Brown  made  a  further,  more  aggressive  sexual  advance  to  him.    He  then remembered only flashes in no clear sequence, including Mr Brown chasing him around  a  table,  and  that  Mr  Brown  threw  things  as  well.    Then  Mr  A   barricaded himself in upstairs.  He had no memory of how Mr Brown was hurt.  His memory became more clear when he arrived at the police station.

[10]     Mr A   claims that he spoke only very limited English at the time of this incident.  He has had the assistance of an interpreter throughout the course of this trial.

Automatism

[11]     The defence opened on the possibility of automatism being an issue for the jury.    The  defence  case  in  relation  to  automatism  was  that  Mr  Brown  spiked Mr A  ’s drink with some drug; most probably Lorazepam.   A prescription bottle of Lorazepam was found upstairs at Mr Brown’s property, amongst debris lying in the hallway.

[12]     The defence witnesses included Mr A  , and three character witnesses who were friends of Mr A  ’s from Hungary.   The character witnesses gave evidence  that  Mr  A    is  not  a  violent  person  and  that  he  is  heterosexual. Mr A   gave evidence maintaining that he has no memory of hurting Mr Brown. He recalled some more flashes of isolated conduct.

Medical evidence

[13]     The defence also called Dr Ian Goodwin, a psychiatrist, to give evidence. Dr Goodwin had prepared a written report which he read out to the Court.  He did not include a diagnosis of automatism in that report.  In supplementary evidence in chief he said that he could not exclude automatism as a reasonable possibility.   In expressing  that  opinion  he  focused  on  the  medical  concept  of  automatism. Medically, automatisms are actions that are done without thoughts; movement or actions that people can do without consciously thinking about it.  He gave as the two most common examples, people with concussion or people suffering from temporal lobe epilepsy, who undertake actions that they have not thought about.  He said that automatism could be caused by intoxicating factors such as alcohol, drugs or a combination.  Such automatism would be characterised as non-insane automatism, that is to say automatism caused by an external factor.

[14]     He  saw  the  following  as  consistent  with  a  diagnosis  of  non-insane automatism in this case, although far from definitive of it.   First, the extreme and senseless actions undertaken by Mr A  .  Dr Goodwin described the destruction of  the  property  and  Mr  A  ’s  shouting  out  in  the  manner  that  he  did  as senseless.  He said that as a matter of logic the noise would have brought attention to him,  which  seemed  counter-productive  for  Mr  A  .    He  also  referred  to Mr A  ’s  account  that  he  had  barricaded  himself  in,  yet  forensic  evidence suggested the destruction of property upstairs occurred after Mr Brown was lying unconscious on the stairs.  In that sense, the barricading served no logical purpose. Further, Mr A   gave evidence he was feeling non-specifically threatened when he was in the house.

[15]     Dr Goodwin also pointed to evidence of medical staff at the hospital who reported that Mr A  ’s pupils were dilated when they examined him in the early hours of the following morning.  But Dr Goodwin accepted that dilated pupils could be  consistent  with  alcohol  intoxication  or  someone  who  is  in  a  state  of  rage. However, the other behaviours, together with Mr A  ’s poor recollection of the events of the evening did not seem entirely consistent with alcohol intoxication.  In reaching this view he factored in his calculation that Mr A   had probably had

about 12 drinks over a seven and a half hour period.  By Dr Goodwin’s calculation his system should have eliminated approximately eight drinks by the time of the events in question, so he would not have been extremely intoxicated.  That view was supported by the fact that Nurse Ridyard and Dr Rosie did not notice a smell of alcohol on Mr A  .

[16]     Dr  Goodwin  proposed  as  a  possible  explanation  for  the  conduct,  a paradoxical reaction to the drug Lorazepam.  He said that in his clinical experience, although Lorazepam was normally a sedative and a relaxant, it could produce a paradoxical effect.   A paradoxical effect is an effect opposite to the intended therapeutic effect of the drug.  For Lorazepam, medical literature records as known paradoxical effects irritation, hostility and excitability.  Dr Goodwin said that such paradoxical effects were rare.  He also said that he would add rage as a paradoxical effect of Lorazepam based on his clinical observation.   He said that alcohol and Lorazepam work on the same part of the brain, so that each tends to amplify the effects of the other.   In that sense their actions are described as synergistic in the medical literature.

[17]     His opinion was that when a person is subject to a paradoxical effect of Lorazepam, the person is an automaton.   This is because the person seems to be acting without any specific stimulus.   There is no apparent thought or reasoning behind their actions.  Dr Goodwin could not, however, say that such a person was acting without knowledge of acting since he had not forensically examined any person experiencing a paradoxical effect of Lorazepam.

[18]     Dr Goodwin identified the following as making automatism less likely.  First, the  period  of  time  over  which  Mr  A    acted  in  an  enraged  fashion.    If Mr A  ’s subsequent visit to hospital is taken into account, during which time he still seemed to be in a state of rage, that would mean that the incident of automatism lasted several hours.   Another matter weighing against a diagnosis of automatism was the apparent complexity of Mr A  ’s behaviours.  The actions involved in the assault on Mr Brown, and in the wrecking of the house, would have required a lot of thought.  Dr Goodwin also referred in particular to Mr A  ’s interaction with the police.  As to the latter, he noted that Mr A   responded to

some queries from the police, in particular to a request that he come down from upstairs.    Dr Goodwin  said  that  that  indicated  to  him  that  Mr  A    was understanding some information, at least processing it and acting upon it.  That did not seem to Dr Goodwin to be compatible with automatism at that time.

[19]     Professor Mellsop was called to give rebuttal evidence for the Crown.  Like Dr Goodwin, Professor Mellsop is a specialist adult mental health psychiatrist, but he has a particular interest in clinical pharmacology, and has undertaken research in that field.  He was involved in one of the early clinical studies in relation to the use of Lorazepam.

[20]     Professor Melsop said of paradoxical effects that they are in reality no more than a disinhibiting effect.  He said that it was well known that when drunk, some people will become more irritable, abrasive or easily frustrated and even noticeably very aggressive.  The term paradoxical has been introduced when that effect is not produced by alcohol, but by something that has been prescribed.

[21]     He said that even if a person is disinhibited by a drug, that person is still not acting as an automaton.  Acting in a disinhibited manner is very different to acting without conscious thought.  He also said that such effects are so rare, that in his 30 years of front line psychiatric practice, he has never seen a paradoxical effect of the type that Dr Goodwin had described.

[22]     Professor Melsop disagreed with Dr Goodwin’s assessment of the clearance of alcohol from Mr A  ’s body.   He said that roughly one standard drink an hour of metabolism is eliminated.  The narrative of evidence was that Mr A   had two strong Jim Beams (which could conservatively be estimated to be four standard drinks) and at least two beers.   All of this was consumed over the short period of time that he was at Mr Brown’s house; probably over no more than an hour.   Prior to that he had had a substantial amount to drink, but over a more extended period.   Professor Melsop estimated that those six standard alcohol measures would not have left Mr A  ’s bloodstream until 4.00 am.

[23]     Professor Melsop defined automatism as a person not acting with conscious mind.  He said there was no medical definition of automatism, and that the definition he used was the medico-legal one.  As an example of automatism he referred to the example given by Dr Goodwin, of a person with temporal lobe epilepsy who is not conscious when they perform acts.  He said that this might be demonstrated in the following way.   A person with temporal lobe epilepsy may be giving evidence in Court, then be subject to an attack and suddenly stop giving evidence, and start doing something quite irrelevant, such as writing something down.   Then a few minutes later that person will come back to their conscious mind, and have no recollection of that interruption.

[24]     When he considered the evidence of Mr A  ’s conduct (from the police interview, evidence of other witnesses, and Mr A  ’s evidence) he considered it was not even a reasonable possibility that when he acted in assaulting Mr Brown, he was an automaton.  He cited the following as reasons:

1.        There was a significant sustained theme to Mr A  ’s actions.

This theme was aggression toward Mr Brown and his property. Professor Melsop identified that as a big pointer against automatism, because to stick to a theme for so long would be extraordinarily difficult without some mind operating.

2.He thought that Mr A  ’s account of not remembering was characterised by a selective remembering.   Mr A   claimed to have no memory of any acts of violence towards Mr Brown, but he could remember other detailed matters throughout the evening. Professor Melsop was of the view Mr A   was demonstrating an ability to pick and choose what he was going to tell police, and later, at the court of his memories.

3.There was an obvious purpose to Mr A  ’s actions.  Mr A   had narrated that Mr Brown had made unwanted sexual approaches to him and that he feared Mr Brown.  He referred to Mr Brown having chased him, and remembered Mr Brown holding a knife toward him.

Although Mr A   expressed his feelings about this in moderate terms, he clearly communicated that he believed that Mr Brown had not been behaving properly toward him.   Therefore there was a connection between the grievance felt toward Mr Brown on the part of Mr A  , and the purpose of Mr A  ’s actions.  Those actions were an attack on Mr Brown; on his person, and on his belongings. Professor Melsop said that many actions are done by people who are acting in their conscious mind which others would construe or depict as senseless.  But Mr A  ’s actions were not senseless if seen in this way.

[25]     Professor   Melsop’s   opinion   was   that   the   most   efficient   and   simple explanation for what had occurred on the particular evening in question was that Mr A   had a low anger threshold, which was further lowered by a  degree of intoxication.

Evidence in relation to drugging of drink

[26]     Also  relevant  in  considering  whether  the  issue  of  automatism  should  be allowed to go to the jury, is the evidence as to the possibility of Mr A  ’s drinks having been spiked by Mr Brown.  The only evidence which suggests that Mr Brown was ever in possession of a medication with a potentially intoxicating effect was the evidence in relation to his possession of Lorazepam.

[27]     The Crown called evidence in relation to his prescription for Lorazepam. Mr Brown was prescribed Lorazepam in October 2007, for anxiety.  He collected a prescription for 30 tablets in that month.  When the bottle of Lorazepam was found upstairs, there were 29 tablets; therefore one missing.

[28]     The   Crown   called   evidence   from   Pharmac   New   Zealand   as   to   all prescriptions that Mr Brown had in recent times.  None of those prescriptions, other than Lorazepam were for intoxicating substances.

[29]     The bottle of Lorazepam found in the house was upstairs, whereas the drinks were mixed downstairs.  The evidence is consistent with that bottle of Lorazepam having  been  inside  the  bathroom  vanity,  which  was  ripped  from  the  wall  by Mr A   with its contents disgorged onto the floor.  Mr A   accepted under cross-examination that the Lorazepam could have come from that bathroom cabinet and been dislodged from it in that manner.

[30]     There was also no evidence suggestive of Lorazepam being in Mr A  ’s drinks.  Dr Goodwin’s evidence was that Lorazepam is not water soluble and would therefore have to be ground to be mixed with a drink.  Even if it were, he said, it would still leave a white sludge behind.  Mr A  ’s evidence was that he noticed nothing unusual about the drinks, other than that they were strong.  When the glasses that Mr A   drank from were examined by forensics, no white sludge or residue was noted.  No Lorazepam was detected.  Ms Kapatos did, however, say that there was insufficient liquid from the glasses to undertake any analysis for Lorazepam.

Relevant principles

[31]     Automatism has been defined by the Court of Appeal in R v Cottle [1958] NZLR 999 as follows:

Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious – in short doing something without knowledge of it, and without  memory afterwards  of having  done  it  –  a  temporary  eclipse  of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.  In such a case, the action is one which the mind in its normal functioning does not control.  This may be due to some “disease of the mind” or it may not; it may happen with a perfectly healthy mind (e.g. in somnambulism which may be unaccompanied by any abnormality of mind), or it may occur where the mind is temporarily affected as a result of a blow, or by the influence of a drug or other intoxication.

[32]     Automatism caused by a disease of the mind is treated by the law as insane automatism.  It is not that defence with which we are concerned with here, but rather sane automatism.

[33]     In Bratty v Attorney for Northern Ireland [1963] AC 386 the definition from

R v Cottle was adopted.  Further, Lord Denning suggested the following definition:

No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as “automatism” – means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who  is  not  conscious  of  what  he  is  doing,  such  as  an  act  done  whilst suffering from concussion or whilst sleep-walking.

[34]     In R v Burr [1969] NZLR 736 the Court of Appeal said that for a defence of automatism to be allowed to go to a jury, the evidence must be sufficient and lay a proper foundation for the plea that the accused acted through his body and without the assistance of his mind, in the sense that he was unable to make the necessary decisions and to determine whether or not to do the act. As to the evidential threshold Lord Denning said in R v Bratty (at page 413):

The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity.   It is not sufficient for a man to say “I had a black-out”: for “black-out” as Stable J. said in Cooper v McKenna, Ex parte Cooper “is one of the first refuges of a guilty conscience and a popular excuse.”

[35]     As  to  the  nature  of  that  evidential  foundation,  I  consider  that  the  same approach should be taken as when considering whether to allow the defence of provocation to go to the jury.   All that is required is a credible factual narrative which could induce a reasonable doubt.  The view of the evidence most favourable to the accused should be taken.  (R v Kerr [1976] 1 NZLR 335).

Discussion

[36]     In this case there is insufficient evidence to allow the defence of automatism to go to the jury.  I have reached this view for the reason that the defence case for automatism, shaky as it is, falls down completely if there is not some evidential basis for the contention that Mr A  ’s drink was spiked by Mr Brown.  Dr Goodwin’s opinion  that  he could  not  exclude  the  reasonable  possibility that  Mr  A  ’s actions were involuntary, was on the basis of the possible impact of a paradoxical effect of Lorazepam.   Hence even that very caveated opinion is based upon the assumption that Mr A   consumed Lorazepam.

[37]     I have concluded that the only possible intoxicant, on the facts before the jury, is the one tablet of Lorazepam.   But there is no evidential support for the suggestion that Mr Brown spiked Mr A  ’s drink with Lorazepam.   The Lorazepam bottle was upstairs, not downstairs.  It is also a drug poorly suited to the use the defence  case depends on.   Because it is not water soluble, it could be expected to leave traces behind even if put into a drink in a ground up form.  None were found.   The fact that Ms Kapatos’ tests could not exclude the presence of Lorazepam  because  of  insufficient  liquid,  does  not  provide  positive  evidential support for the defence.

[38]     I also note that if Mr Brown had ground up the Lorazepam, then it could be expected that there would be some evidence of that in the kitchen.   There was no evidence found of any ground powder or any utensils with powder on them.

[39]     I have also considered the defence proposition that Mr A  ’s behaviour was so extreme that he must have been drugged.  But Dr Goodwin’s evidence does not support a reasonable possibility of automatism on the basis of Mr A  ’s behaviour alone.  Dr Goodwin’s preferred view of Mr A  ’s behaviour was that it was inconsistent with the diagnosis of automatism, although remaining troubled by some aspects of the behaviour.

[40]     I accept Professor Melsop’s evidence as to a coherent theme to Mr A  ’s conduct.     Although  the  conduct  was  not  reasonable,  people  who  can  react excessively violently and aggressively do act unreasonably.  Professor Melsop said that the conduct was such as to show the presence of mind governing the actions and was totally understandable in psychiatric terms as to the effect of alcohol.

[41]     If  there  had  been  some aspect  of  Mr  A  ’s  presentation  which  was credibly suggestive of automatism to the exclusion of conscious action, that might have been sufficient to allow the defence to be left to the jury.  But there was no such evidence.  There was an obvious and compelling explanation for what occurred in that house; aggressive drunken behaviour   In contrast, I consider that Lorazepam intoxication is a fanciful proposition; any other drug intoxication still more so.

[42]     Finally,  I  comment  that  I  found  Dr  Goodwin’s  evidence  in  relation  to Lorazepam intoxication amounting to  automatism unconvincing.    Dr Goodwin’s evidence was that people who have paradoxical reactions to Lorazepam can fly into a rage, and act as automatons.  He seemed thereby to equate a lack of self-control with a lack of consciousness.  I note that Dr Goodwin said that he could not answer the question I asked him as to whether people were acting without any knowledge of acting when subject to such paradoxical effects, because he had not specifically examined them in a forensic sense.   I also have concerns with the definition of automatism used by Dr Goodwin, which was a person acting without conscious thought.  Although not pursued in cross-examination, this definition seems different to the legal concept of automatism, which is involuntary action, or action without conscious volition.   The definition used by Professor Melsop was in contrast consistent with the legal concept of automatism.

[43]     Professor Melsop, who seemed to have a greater depth of expert knowledge in the area of clinical pharmacology, observed that he had never seen such a paradoxical effect, and that what was commonly referred to as a paradoxical effect was in effect a disinhibition.  It is clear, of course, that an intoxicated disinhibited state does not equate to a state of automatism (R v Kingston [1995] 2 AC 355). However, because of my view that there was no credible narrative to support Lorazepam intoxication these concerns in relation to Dr Goodwin’s evidence which I have highlighted were not determinative.

Provocation

[44]     The  defence  case  is  that  although  Mr  A  ’s  account  of  events  is inconsistent  with  provocation,  because  he  says  that  he  was  not  angered  by Mr Brown’s sexual advances to him, there is a sufficient factual narrative on the evidence such that it should be allowed to go to the jury.   In particular, the initial account Mr A   gave to the police, was that Mr Brown touched him on the thigh and on the penis, but through his clothing.   The Crown opposes the defence of provocation being left to the jury.  It argues that a sexual advance from one male to another cannot amount at law to an act of provocation as it would not be sufficient to

deprive a normal person of the power of self-control.  And secondly that there is no evidence  of  causative  provocation  because  the  accused  did  not  claim  that  he assaulted Mr Brown due to any action on the part of Mr Brown.

Relative principles

[45]     For the defence of provocation to be left to the jury, sufficient evidence must be adduced at trial to raise the issue as a “creditable narrative of causative provocation” (R v Matoka [1987] 1 NZLR 340). The evidence need not come from the accused himself, but it must be evidence not mere conjecture (see R v Matoka at

344).  If such narrative exists then the defence must be left to the jury whether or not it is relied upon by the accused (R v Tavete [1988] 1 NZLR 428). If the Court concludes that a jury acting reasonably would have to reject the defence, it is open to a judge, acting under s 169(3) to withdraw the defence. Section 169(3) provides that whether there is any evidence of provocation is a question of law.

[46]     I consider that there is a credible narrative of a loss of control in response to an act of provocation for the following reasons:

a)       There is some evidence to suggest that the accused did lose self- control.   The substantial amount of damage he did to Mr Brown’s home and possessions suggests a rage, or as Mr Kaye put it, a mind explosion.

b)There is sufficient content in his statements to the police, and what is known of Mr Brown to provide a causative nexus between that and a sexual advance from Mr Brown.  The Crown itself produced evidence that  Mr  Brown  was  attracted  to  young  men.    Mr  A    has described in his police statement and in his evidence, sexual advances made to him by Mr Brown.

c)       The Crown says that the case it proposes to put to the jury is that Mr A   acted in the manner that he did because of the advances made to him by Mr Brown.

[47]     The  second  limb  of  legal  provocation  is  more  problematic.    Would  an ordinary person be caused to lose self-control in those circumstances?  If the defence case was merely that Mr Brown made homosexual advances to the accused, and that caused him to lose self-control, there would be considerable force in the Crown’s submission that no ordinary New Zealander would lose the power of self-control if the recipient of a homosexual advance.   In R v Campbell [1997] 1 NZLR 16 the Court of Appeal made obiter comments to the effect that a homosexual advance amounting to a touch on a thigh and a smile could not amount to provocation at law. In that case there was some evidence that the accused had been abused as a child, and suffered flashbacks. The Court of Appeal said:

Provocation is not lightly taken away from the jury, but had there been no evidence at all of the flashback concept, the advance of which the appellant spoke would not have been a sufficient foundation for leaving provocation in the  case.    It  would  not  have  been  open  to  the  jury  to  find  that  the hypothetical ordinary New Zealander, without any special characteristics, could have reacted in the same way.

[48]     In this case there is evidence before the jury on which it could be satisfied that there was a reasonable possibility that sexual advances by Mr Brown went beyond a mere touching.   Indeed on Mr A  ’s account what could be characterised as an indecent assault occurred, involving touching of Mr A  ’s genitalia, although through his clothing.

[49]     For these reasons I concluded that there is a credible factual narrative to permit the defence of provocation to go to the jury, and I so ruled.

Winkelmann J