R v Davies aka Waipouri
[2017] NZHC 402
•10 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-092-013800 [2017] NZHC 402
THE QUEEN
v
MICHAEL JOSEPH DAVIES (AKA) MICHAEL JOSEPH WAIPOURI
STEVE BRENT GUNBIE
Hearing: 27 February 2017 Appearances:
G Kayes and B R Smith for the Crown
J D Munro, D Niven and J Ding for the Defendant WaipouriJudgment:
10 March 2017
JUDGMENT OF HINTON J
This judgment was delivered by me on 10 March 2017 at 9.00 am pursuant to Rule 11.5 of the High Court Rules
……………………………………………………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Kayes Fletcher Walker Ltd, Manukau
John Munro, Barrister, AucklandDavid Niven, Barrister, Auckland
Adam Couchman, Barrister, Auckland
R v WAIPOURI [2017] NZHC 402 [10 March 2017]
[1] On application by the Crown following the close of the defence case, I ruled that self-defence could not be submitted to the jury. These are my reasons.
[2] Self-defence is governed by s 48 of the Crimes Act 1961, which provides:
Everyone is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
[3] The ability of a Judge to withdraw self-defence from the jury is well-established by the authorities.
[4] In R v Li, the Court of Appeal approved the following format for directing a jury as to self-defence:1
In summary, on this approach the jury is asked to consider first what the accused believed the circumstances to be, from his or her point of view. The second question is whether, bearing in mind that belief of the accused about what was happening, he or she was acting in self-defence (again considered from his or her point of view). The last question is whether, given that belief, the force used in self-defence was actually reasonable.
[5] As to when self-defence should not go to a jury, I adopt the following statements from the Court of Appeal in R v Sila in 2009:2
[28] Self-defence should be left to the jury where the evidence raises a credible or plausible narrative which might lead the jury to entertain a reasonable possibility of self-defence: R v Wang [1990]
2 NZLR 529 at 534 (CA). In deciding whether there is a credible or plausible narrative, the Judge must consider the matter on the view of the evidence most favourable to the accused: R v Kerr [1976]
1 NZLR 335 at 340 (CA). …
[29] In Bridger [R v Bridger [2003] 1 NZLR 636] a Full Court of this Court considered the role of the trial Judge when assessing whether self-defence should be left to the jury. Counsel had submitted that the Judge should assess whether, in the circumstances as the accused perceived them, the accused was acting in the defence of himself or another … but that the Judge should leave the question of whether the force was reasonable … for the jury.
[30] The Court rejected this submission, saying (at [21]):
1 R v Li CA140/00, 28 June 2000 at [22].
2 R v Sila [2009] NZCA 233 at [28]-[31].
This Court in Wang rejected an argument that what amount of force is reasonable in the circumstances in the defence of oneself or another is always a question for the jury in a jury trial and never a point of law for the Judge. It accepted that in some cases it would be open to the trial Judge to conclude that the facts were not capable in law of giving rise to a possible defence (justification may be a better word) of self-defence. In our view the consideration of those facts may be directed to both the nature and the extent of the force used by the accused. If the Judge concludes that a properly directed jury could not possibly think that an accused was responding reasonably to the circumstances which he or she perceived, the Judge may withdraw consideration of self-defence from the jury.
(Emphasis added.)
[31] In other words, the trial Judge must make an assessment as to
all three questions. …
[6] I therefore make the following three-stage assessment:
(a) What did Mr Waipouri believe the circumstances to be, on the view of the evidence most favourable to him?
(b) Was Mr Waipouri using force for the purpose of defending himself
(again considered from his point of view)?
(c) Can a properly-directed jury possibly consider that Mr Waipouri was using reasonable force in the circumstances as he perceived them to be at the time he killed Mr Murphy?
[7] The first two questions are subjective, and the third is an objective assessment of the circumstances as perceived subjectively.
[8] As to the third question, the Court of Appeal stated in R v Wang, that what is reasonable force to use to protect oneself when faced with a threat of physical force must depend on the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force.3 A person about to be attacked
does not have to wait for his assailant to strike the first blow or fire the first shot;
3 R v Wang [1990] 2 NZLR 529 (CA) at 535-536.
circumstances may justify a pre-emptive strike.4 However, the Court said there may be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately.5 In those circumstances, it would not be reasonable to make a pre-emptive strike.
[9] In the often quoted passage from R v Savage, the Court of Appeal stated:6
The accused must have seen himself as under a real threat of danger, and not merely think there may be some future danger to him.
Similarly in Leason v Attorney-General, the Court of Appeal said when referring to
R v Wang:7
If a person has alternative courses of action other than the use of force, and the threat in question cannot be carried out immediately, it is unacceptable to make a pre-emptive attack.
[10] These factors were summarised in Vincent v R, where the Court of Appeal stated:8
[28] While the imminence of the threat is not treated as a distinct or separate requirement, the authorities have emphasised that the imminence or immediacy of the threat is a factor that is to be weighed in assessing whether the defence is available. This is a question of fact and degree. Amongst other things, the opportunities available to the defendant to seek protection or adopt some other alternative course of action are to be considered. The defendant must have seen himself or herself as under a real threat of danger and not merely believe there may be some future danger.
[29] These limitations are important since, where the danger is uncertain, or can otherwise be averted, recourse should be had to other means of avoidance. As the learned authors of a leading text put it, the justification of pre-emptive strike self-defence ‘should not be used as a mask for retaliation or as a means of resolving [the defendant’s] misplaced anxiety concerning a future, possible or even imaginary attack.’
What were the circumstances as Mr Waipouri believed them to be?
[11] This is a subjective test, the critical matter being the beliefs actually held by
Mr Waipouri.
4 At 536, citing Beckford v R [1988] AC 130 (PC) at 144.
5 R v Wang, above n 3, at 536.
6 R v Savage [1991] 3 NZLR 155 (CA) at 158.
7 Leason v Attorney-General [2013] NZCA 509, [2014] 2 NZLR 224 at [54].
8 Vincent v R [2015] NZCA 201 at [28]-[29].
[12] The defence submit that the expert evidence provides an important undercurrent to the circumstances as the defendant saw them. Dr Goodwin gave expert evidence that Mr Waipouri suffered from low-grade, chronic (as in long- standing) paranoia. This is supplemented by confirmatory bias, which is a phenomenon whereby once the mind is made up, one looks for confirmation to enhance that view. Once that view is confirmed, the facts fade into the background and a person becomes guided by their beliefs. Dr Goodwin’s expert evidence was that once a paranoid person such as the defendant perceived a threat they would either contain it or eliminate it.
[13] The evidence was also that Mr Waipouri has strong spiritual beliefs, borne from his spiritual standing as a boy where he was head altar boy in his Catholic church and was taught the wero (challenge in the pōwhiri) which is a purely tapu or sacred role. The circumstances as the defendant saw them were highly coloured by the spiritual phenomena that he experienced. Importantly, Dr Goodwin said that the defendant’s spiritual beliefs fed into his paranoia.
[14] All of the circumstances as set out below are as Mr Waipouri believed them to be, on the view of the evidence most favourable to him.
[15] Mr Waipouri and Mr Murphy had been friends for over 30 years. Mr Murphy was in his fifties and had pain in both arms. He was taking pain medication and intended to go to Auckland on Sunday 22 November 2015 to attend a pain clinic commencing Monday, 23 November 2015.
[16] There was no suggestion that during the 30-year friendship, Mr Murphy had ever physically attacked Mr Waipouri.
[17] Mr Waipouri said that Mr Murphy told him approximately 10 years ago that he had killed Jim Donnelly. Mr Waipouri had kept this a secret.
[18] Mr Waipouri said he “knew” that Mr Murphy had killed Mr Murphy’s wife, Wendy, and his mother-in-law, Eileen. He said Mr Murphy knew he knew of these killings and as a result, Mr Murphy wanted to kill him.
[19] Mr Waipouri believed that Mr Murphy had a crew of people who were committing crimes, notably home invasions. He said that when he was at Eileen’s funeral, he was approached by two of Mr Murphy’s crew. These men threatened to “shoot for Mr Murphy any day”.
[20] Sometime later, about five months before Mr Waipouri killed Mr Murphy, Mr Waipouri said he heard Mr Murphy say: “I’ll fuckin’ use you as a boat anchor, cunt.” Dr Goodwin gave evidence that such threats have a significant and lasting effect on people with traits of paranoia, such as Mr Waipouri. Mr Waipouri would consider he must either contain or eliminate such a threat.
[21] Mr Waipouri said that, on Thursday, 19 November 2015, Mr Murphy came to visit in the morning and he saw a dragon with 10 heads emerge from Mr Murphy’s chest. Mr Murphy later sent text messages which conveyed to him that there was a plan in motion to kill or imprison him, which Mr Murphy could no longer stop. He took Mr Murphy to say he could not stop the ball from rolling, which was a declaration of war. Mr Waipouri felt it was “either me or him”.
[22] Mr Waipouri then invited Mr Murphy over for a cup of coffee. Mr Murphy came as asked, and Mr Waipouri left Mr Murphy with his wife and children while he showered.
[23] On the same Thursday, Mr Waipouri went to the house of mutual friends, who said Mr Murphy had told them he had killed 10 people, including Tony Butcher and Wayne Henderson. This made sense of the event earlier in the day when Mr Waipouri saw the dragon with 10 heads emerge from Mr Murphy’s chest.
[24] On Saturday, 21 November 2015 at Mr Waipouri’s suggestion, Mr Waipouri and Mr Murphy drove from Waiuku to Goatley Road. Mr Murphy went willingly. They were alone together in Mr Murphy’s car. Mr Waipouri did not tell his wife where he was going. The occupants of Goatley Road were known to Mr Waipouri, but not to Mr Murphy.
[25] At some point, Mr Murphy’s phone was dismantled and put in the centre console of his car. During a conversation in the lounge at Goatley Road, Mr Waipouri struck Mr Murphy with an aluminium baseball bat, hitting him about the elbow and face. Mr Waipouri said this was in response to Mr Murphy scoffing at his suggestion that his dog would be a useful pig hunter. Once hit, Mr Murphy did not strike back. He tried to escape, but could only do so through Mr Waipouri, which led to the blows in the face. Mr Waipouri told Mr Murphy to sit down. Mr Murphy did as he was told. Mr Waipouri told Mr Murphy off for a period of time, while Mr Murphy listened.
[26] Mr Waipouri became intoxicated by a drug, and retired to a bedroom. When Mr Waipouri awoke, Mr Murphy was in a room nearby in which he had spent the night. Mr Waipouri had Mr Murphy’s car keys. He gave them to Mr Gunbie and Ms Rusden, sending them to get some cigarettes.
[27] After Mr Waipouri had a cup of tea or coffee, Mr Waipouri went into the room where Mr Murphy was lying on the bed, and told him to put cable ties on his wrists. Mr Murphy did as he was told. Mr Waipouri then handcuffed and hooded Mr Murphy, tying the hood to Mr Murphy’s belt.
[28] Mr Waipouri gave Mr Murphy an ultimatum which he advised the Police in his DVD interview, was as follows:
I was giving him an ultimatum. I says right I want you to sign the fucken house over to the kids, sign all the money, all money ah duties over to the kids, he’s not allowed to touch the money ever again and he has to look after his grandchildren for the rest of his life. That was the ultimatum. Um if he did that, he’ll live. If he didn't, he’d die. Simple as that.
[29] In his evidence in Court, Mr Waipouri confirmed that if Mr Murphy had signed the house and the money over as he wanted him to, he would have spared his life. He said, “If he sincerely meant it, yes, because obviously it was the money getting him into trouble.” Mr Waipouri said that Mr Murphy did agree to sign the property over, but Mr Waipouri considered he was too eager. He did not believe that Mr Murphy was sincere.
[30] Mr Waipouri said he put Mr Murphy in the boot of Mr Murphy’s own car and drove with him to Noakes Hill Road. Mr Waipouri was accompanied by another man. On the way, Mr Murphy put his head up to call for help. When he did so, Mr Waipouri assaulted Mr Murphy with his fists.
[31] When they arrived at Noakes Hill Road, Mr Waipouri dragged Mr Murphy from the car by his belt. He again gave Mr Murphy a choice between the financial ultimatum or being killed. Mr Murphy did not say anything. Mr Waipouri accepted that Mr Murphy may have been unconscious.
[32] Mr Waipouri then beat Mr Murphy to death with blows to his head, using a branch of a tree. He said he intended to kill him.
[33] At the time that Mr Waipouri killed Mr Murphy, Mr Waipouri knew the following matters. He knew Mr Murphy was restrained, in that his hands were handcuffed, his head and upper body were hooded and the hood was tied to the back of his belt. He clearly knew Mr Murphy was unable to see; was unarmed (while he himself was armed with a bat and a tree branch) and was lying down, (while Mr Waipouri was standing). He must have known that Mr Murphy was injured, or incapacitated, either from the assault the night before and/or from assaults inflicted by Mr Waipouri on the drive to Noakes Hill Road. Mr Waipouri also knew that Mr Murphy was unaware of where he was (having been brought to Noakes Hill Road without seeing the route); in a remote location; unable to get help as there were no people around and he did not have a cellphone, shoes or car keys.
Did Mr Waipouri use force for the purpose of defending himself?
[34] It is difficult to see how Mr Waipouri’s actions could possibly have been for the purpose of defending himself, even viewing them from his own perspective. However, taking a view of the facts most favourable to him, I assume in his favour that he was using force for that purpose. As the defence put it, he considered he had to eliminate the threat to his own life.
Could the jury possibly consider Mr Waipouri’s response reasonable?
[35] I have to assume that Mr Waipouri believed Mr Murphy wanted to kill him or to imprison him, at some point.
[36] However, I agree with the Crown, that even on Mr Waipouri’s evidence there was no imminent threat. Mr Waipouri said the texts sent on Thursday 19 November
2015 led him to believe that Mr Murphy had a plan in place to kill or imprison him. However, Mr Waipouri did not plan to take Mr Murphy away until noon on Saturday
21 November and even on that day he told Mr Murphy to wait while he cut some firewood. He said he was going on his own time. He accepted he was in no particular rush on the Saturday and agreed that he could have waited for the following weekend.
[37] Mr Waipouri accepted that he was not afraid of Mr Murphy on the Saturday afternoon; he was not afraid of him when they were alone in the car together travelling to Goatley Road; that he was not defending himself when he hit Mr Murphy with the bat at the Goatley Road house and that he was not afraid of Mr Murphy the following morning when Mr Murphy was unrestrained in the bedroom upstairs. Mr Waipouri also accepted that when he placed the handcuffs on Mr Murphy he had limited Mr Murphy’s ability to harm him until it was virtually zero and that when he placed Mr Murphy in the back of the car, Mr Murphy presented no harm to him.
[38] From before they left for Goatley Road and certainly by the time they were at the top of the hill at Noakes Hill Road, Mr Waipouri was not under any imminent threat from Mr Murphy.
[39] Similarly, from before they left Goatley Road onwards, Mr Waipouri had a number of alternative courses of action open to him, other than the use of force, including contacting the Police. (He said he did not think they would believe him.) He agreed in evidence that he could have moved his family away from Waiuku, but said he could not do that for financial reasons and because his niece was still living at the family farm in Hokianga. There were also other steps Mr Waipouri could have
taken to protect himself from any potential attack, including keeping well away from
Mr Murphy and/or taking strong security measures.
[40] The Crown says that another option, based on Mr Waipouri’s own evidence as to the financial ultimatums that he repeated, was not to kill Mr Murphy but rather to spare his life. Clearly the ultimatums, so close to the time of the killing, suggest that in Mr Waipouri’s mind the threat posed by Mr Murphy was not serious, nor imminent. Mr Niven suggested I should not take Mr Waipouri’s ultimatums into account, but I see no reason why that evidence should be ignored. It is Mr Waipouri’s own evidence and it clearly evidences his thinking immediately before he delivered the fatal blows.
[41] Mr Niven acknowledged that R v Wang was relevant, but said R v Oakes,9
where self-defence was put to the jury, was equally, if not more, helpful.
[42] I note that the question on appeal in R v Oakes was not whether self-defence should have been put to the jury, but rather whether the Judge’s directions to the jury in relation to it were sufficient. The case is therefore not directly on point.
[43] Furthermore, the facts in Oakes are quite different to those of the present. In R v Oakes the defendant administered a fatal dose of prescription drugs to her partner. Prior to this the defendant had suffered physical violence at the hands of her partner over the 11 years of their relationship. Additionally, there were allegations of sexual abuse by the partner in relation to the defendant’s daughter from a previous marriage. There was expert evidence that the defendant suffered from battered woman’s syndrome. The effect of this syndrome was said to be that sufferers may perceive a threat of imminent serious harm earlier than others might, such that this could justify a pre-emptive strike.
[44] In contrast, the expert evidence from Dr Goodwin in relation to Mr Waipouri’s mental state was directed at explaining how and why Mr Waipouri would perceive a serious threat, when others would not. It did not provide an
explanation as to why Mr Waipouri might perceive an imminent threat.
9 R v Oakes [1995] 2 NZLR 673 (CA).
[45] Furthermore, in R v Oakes, the defendant had also exercised other options prior to killing her husband, such as complaining to the police about domestic incidents including the molestation of her daughter (such complaints were not followed up), and staying in women’s refuges. Mr Waipouri had not similarly acted upon other options, choosing instead to kill Mr Murphy.
[46] I do not consider R v Oakes to be sufficiently analogous that it supports putting self-defence to the jury in the present case.
[47] An analogy can however be drawn with R v Wang. The trial Judge in that case refused to put self-defence to the jury. The Court of Appeal, dealing directly with the point, upheld the ruling.
[48] Mrs Wang’s husband had made threats in a phone call to her sister, overheard by Mrs Wang to kill her and her sister. Mrs Wang believed these threats. After the phone call, Mr Wang fell into an intoxicated sleep. Mrs Wang decided to kill her husband. She first tied him up, and then killed him.
[49] The imminence of the threat to Mr Waipouri was clearly less than for Mrs Wang. While both Mr Wang and Mr Murphy were restrained; lying down; and unarmed, Mr Murphy had also been the subject of assaults for several hours, was hooded, and was in a remote and unknown location. The finding in R v Wang that the threat to Mrs Wang was too remote, is even more applicable here.
[50] Both Mrs Wang and Mr Waipouri had other options available to them to deal with the threat they faced. Mr Waipouri was even subjectively aware of having another option, given the ultimatum he gave, whereas the expert evidence in R v Wang was that Mrs Wang would have perceived fewer options than an ordinary person would, because of her “major depressive illness”. (When the case has been subsequently cited, the illness has been referred to as battered woman’s syndrome). There was no such evidence in relation to Mr Waipouri. As Dr Goodwin stated, Mr Waipouri’s paranoia might give rise to a belief that there was a threat against his life that might lead Mr Waipouri to “contain or eliminate it”. It does not necessarily
follow from that evidence that Mr Waipouri would consider there was only one way to achieve this objective, nor was that so in fact, given evidence of the ultimatum.
[51] In upholding the trial Judge’s refusal to let self-defence go to the jury, the
Court of Appeal in R v Wang said:10
As the Judge said in his ruling:
The only view of the evidence open is that the accused was in no immediate danger. I accept that imminence of danger is a question of fact and degree and not a requirement of law. And further that a pre-emptive strike, even with a knife, may in particular circumstances qualify for consideration as self-defence. … Here there is no suggestion that the victim had a weapon, nor had made any move to suggest the intended use of any object as such. The contention on behalf of the defence has to go the length of asserting that a jury could reasonably find that an accused under no immediate threat or danger, however elastic an interpretation is given to that concept, who had alternative courses open none of which she had tried or seemingly considered, was or at least might reasonably be justified in deliberately killing the other party with a knife. To accede to that proposition in these circumstances would I think be close to a return to the law of the jungle. Giving the jury every latitude as to taking the most favourable view of the accused’s honest even if mistaken view of the circumstances, no jury could properly regard such a reaction by the accused to be a reasonable one. It is one of those cases, no doubt relatively rare, where I believe it would be impossible for the jury to entertain a reasonable doubt on the point.
We entirely agree with his ruling and his reasons. ….
[52] The Court of Appeal went on to say:11
In our view what is reasonable under the second limb of s 48 and having regard to society’s concern for the sanctity of human life requires, where there has not been an assault but a threatened assault, that there must be immediacy of life-threatening violence to justify killing in self-defence or the defence of another.
[53] All of these comments are directly applicable here.
[54] In this case, Mr Waipouri did not see himself as under a real threat of imminent danger and no jury, taking the most favourable view of his honest, even if
10 R v Wang, above n 3, at 534-535.
11 R v Wang, above n 3, at 539.
mistaken, view of the circumstances, could possibly regard his reaction as a reasonable one. This is one of those rare cases where I consider it would be impossible for the jury to entertain a reasonable doubt that the defendant was acting in self-defence.
[55] I therefore ruled that the defence of self-defence could not be submitted to the jury.
------------------------------------------------------ Hinton J