R v DAVIES HC Ham CRI-2007-019-8269

[2008] NZHC 1649

This case has been anonymized

ORDER PROHIBITING PUBLICATION OF ANY PARTICULARS LIKELY TO LEAD TO THE IDENTIFICATION OF ANY WITNESSES WHOSE NAME IS IN INITIALS IN THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2007-019-8269

THE QUEEN

v

D

Hearing:         20-23 October 2008

Appearances: Mr R G Douch and Ms J O'Sullivan for Crown

Mr P Mabey QC and Mr Dixon for Accused

Judgment:      22 October 2008 at 4.50 pm

Reasons:        23 October 2008

REASONS FOR RULING OF LANG J [on availability of defence of provocation]

This judgment was delivered by me on 23 October 2008 at 4.50 pm, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date…………

Solicitors:
Crown Solicitor, Hamilton
Counsel:

Mr P Mabey QC, Tauranga

R V D HC HAM CRI-2007-019-8269  22 October 2008

[1]      Mr D   faces a charge of murdering his stepfather, Allan Wallace D 

(“the deceased”).

[2]      At the conclusion of the Crown case I ruled that there was at that stage an insufficient evidential basis to justify the defence of provocation being left to the jury.   Mr D   then elected not to call or give evidence.   As a result, my interim ruling became final and it is necessary for me to set out my reasons for it.

Background

[3]      The charge that Mr D   faces is the last in a long line of tragic occurrences for himself and members of his family.   For the most part the blame for these can be laid squarely with the deceased.   He physically abused Mr D   throughout his childhood and into his teenage years.   He also sexually abused Mr D  ’ half- sisters when they were young.     The only person who was prepared to make complaint, however, was Mr D  ’ older sister J.   She went to the police and the deceased faced criminal charges as a result of what she told them.

[4]      On 10 and 11 September 2007 the deceased underwent trial by jury in the District Court at Hamilton on five charges of doing indecent acts on J between 1979 and 1982.    At the conclusion of the trial the jury found him guilty on all charges, and he was remanded on bail for sentencing in October 2007.

[5]      Mr D   and his fiancée had been living in Australia for some months prior to the trial.   They had travelled to New Zealand, however, in order to lend support to J throughout the trial process.    Shortly after the trial ended Mr D   learned for the first time that the deceased had also sexually abused another half-sister, C.

[6]      A third half-sister, L, was also living in Australia at the time of the trial.   She travelled to New Zealand on or about 26 September 2007 and stayed for a few days with friends in Hamilton.

[7]      The events that have given rise to the present charge began on the evening of

Thursday 27 September 2007.    Mr D   started that evening by socialising with

his fiancée and J at J’s house in Raglan.   Later, at about 12.30pm, he and his fiancée travelled into Hamilton by taxi.    There, after withdrawing some cash from a cash machine at 1.12am, they met up with L at the address at which she was staying.   Mr D   had been drinking prior to his arrival at L’s address and continued to drink alcohol whilst he was there.

[8]      During the course of this visit Mr D   and L went outside, where they spoke in private.    They spoke about their childhood and, in particular, about the physical abuse that the deceased had inflicted on Mr D   and about the abuse of J and C.   In addition, Mr D   either learned, or had it confirmed by L, that L had also been the subject of sexual abuse at the hands of the deceased.

[9]       L said that Mr D   became emotional and sad during this discussion.   At some stage during the discussion he also invited L to travel to Ngaruawahia with him there and then to confront the deceased about what he had done, but she declined to do so.

[10]     At about 3.40am Mr D   and his fiancée returned to Raglan by taxi. When they arrived in Raglan, however, Mr D   did not get out.   Instead, he asked the taxi driver to take him back to Hamilton.   Later in the journey he told the driver that he wanted to go to Ngaruawahia.     He did not tell the driver the address in Ngaruawahia to which he wanted to be taken until after they arrived in Ngaruawahia.

[11]     At various stages during the three taxi journeys Mr D   had been talking to the taxi driver, Ms Tauranga, in an  angry and upset manner  about what the deceased had done to his sisters.   He had also told the taxi driver that he “would like to kill the bastard” for what he had done and that the deceased should not be allowed to “walk around free”.

[12]     When they arrived in Ngaruawahia at about 5am, Mr D   asked the taxi driver to drop him off in the driveway of a house in Struve Street.    That was the address at which the deceased was then living.   After knocking on the door but not being able to get the deceased to speak to him, he eventually climbed through an

open window.   He then walked through the house until he found the deceased lying under a blanket on a couch in the living room.

[13]     Mr D   then confronted the deceased and asked him why he had sexually abused his sisters.     Almost immediately thereafter Mr D   began physically assaulting the deceased.   He later told the police that he struck numerous blows to the head of the deceased using his fists.     He estimated that he had struck the deceased between 20 and 40 times.   When he eventually stopped, he realised that his stepfather was dead.   He then set fire to the house by lighting cardboard cartons and (according to the Crown case) adding an accelerant in the form of mineral turpentine or petrol.   After the box was alight he left the address.

[14]    Mr D   then wandered around Ngaruawahia for several hours before eventually making contact with his fiancée’s father.    He arranged for his fiancée’s father to pick him up on the outskirts of Ngaruawahia and to purchase new clothing for him.   He then disposed of the clothing that he had been wearing at the time that he assaulted the deceased.

[15]     Mr D   later learned that his father had been found dead and that the house had burned down.   He sought legal advice and eventually came into contact with the police, in the presence of his counsel, on the evening of 28 September 2008.

[16]     Mr D   initially declined to make a statement to the police, but after speaking further with his counsel he elected to undergo a videotaped interview at the Tauranga Central Police Station on 2 October 2007.   The interview was conducted in the presence of Mr D  ’ counsel, Mr Mabey QC.    During the course of the interview Mr D   admitted most of the facts that I have just outlined.

The alleged provocation

[17]     Counsel for Mr D   contended that the sexual and physical abuse that the deceased committed on his children, coupled with the events that occurred on the night of 28 September 2007, amounted to acts of provocation by the deceased.   He submitted that there was also evidence from which the jury could conclude that Mr

D   had lost the power of self-control as a result of that provocation, and that the provocation would have been sufficient to cause a loss of self-control by a person having the power of self-control of an ordinary person.    As a result, he submitted that a credible or plausible narrative existed for the defence of provocation, and that I should leave that defence to be considered by the jury.

[18]     Counsel outlined the factual basis for his submission in the following way:

(a)       The accused was subject to years of violence at the hands of his stepfather up to the time he left home at age 15.

(b)      His sisters were subject to sexual abuse by the accused’s stepfather. (c)     Prior  to  the  trial  in  September  2007  the  accused  was  aware  in

general terms that his sister [J] had been sexually abused.   Prior to

the trial he became aware of all of the details  when  shown her depositions statement.

(d)He subsequently became aware of the sexual abuse of his sisters [C] and [L].    He refers to the knowledge of [C’s] abuse in his video interview.    Specifically he refers to his knowledge of the abuse of [L] obtained a few hours before the homicide.

(e)       The cumulative effect of the violence to himself, the subsequent knowledge of the sexual abuse and the final revelation of [L] is, it is submitted, provocation.

(f)       The fact that the acts of sexual abuse against the accused’s sisters are historic does not lessen the effect of provocation.    It is clear from the evidence of [LD] that the accused has struggled to cope with his own treatment, was clearly upset at what had happened to [J] and was obviously distressed at the cumulative and additional knowledge of the abuse to [L].    It is not the timing of the acts that is important

– it is the time when the accused obtained the knowledge of those acts.

(g)       His response was to confront his stepfather to address his past and

‘move on’ – per [L].    He went to Ngaruawahia a few hours after [L’s] revelation and did confront his stepfather.     He entered the house and saw him for the first time in some weeks.   He did so with the additional knowledge of [l’s] revelation.

(h)It was clear from [L’s] evidence that the deceased’s denials over the years  were  troubling  to  the  accused.      That  was  the  subject  of specific discussion between them earlier that morning.   She refused to confront her stepfather because he would continue to deny.

(i)        On entering the room and confronting his stepfather with the abuse of his sisters – for the first time the deceased acknowledged what he had done.   It was at that point that the accused says that he ‘lost it’.

(j)        There is evidence that on at least one prior occasion (early 2007) the accused  spoke  to  the  deceased  concerning  the  abuse  of  [J], requesting an apology which was refused.    There was no violent response on that occasion.

(k)       However circumstances were different on the 28th  September 2007 as the accused now had [L’s] disclosures which were cumulative upon his prior knowledge and the family background including the violence that he suffered.

(l)        The acknowledgement by the deceased of his offending, taken out of context,   would   not   necessarily   excuse   the   violent   response. However in the context of the background of family relationships, violence to the accused and accumulating knowledge of what had occurred to his sisters – the sight of his father, and then his father’s acknowledgement, is a sufficient trigger.

The law

[19]     The  law  in  this  area  is  now  well  established.      The  partial  defence  of provocation is contained in s 169 of the Crimes Act 1961 which provides as follows:

169     Provocation

(1)Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.

(2)      Anything done or said may be provocation if—

(a)       In the circumstances of the case it was sufficient to deprive a person  having  the  power  of  self-control  of  an  ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

(b)It  did  in  fact deprive  the  offender of the  power  of  self- control and thereby induced him to commit the act of homicide.

(3)      Whether there is any evidence of provocation is a question of law.

(4)Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.

(5)No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.

(6)This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.

…

[20]     It is now clear that provocation must emanate from the person killed, subject only to the exceptions for accident or mistake contained in s 169(6): R v McGregor [1962] NZLR 1069 at 1080. This principle was recently confirmed by the Court of Appeal in R v Turaki [2005] 3 NZLR 329 at 346 and R v La Roche CA 200/04, 13

September 2005 at [51]. It was also referred to with apparent approval by the

Supreme Court in R v Timoti [2006] 1 NZLR 323 at 332.

[21]     Before the partial defence of provocation may be left to the jury, the evidence must disclose a plausible narrative of causative provocation that is capable of leading a jury to find that it is reasonably possible that both limbs of s 169(2) have been satisfied: La Roche at [51].

Decision

[22]     It is common ground that the deceased played no part in any of the events that occurred on the evening of 27 September 2007.    He was not involved in any way up until the point at which Mr D   arrived at the address in Struve Street at about 5am on 28 September 2007.    The discussion between Mr D   and L that occurred earlier in the evening cannot, therefore, form any part of any narrative relevant to the defence of provocation.

[23]     Similarly, I do not consider that the actual abuse that occurred more than 20 years ago could amount to provocation for the purposes of s169.  Although the abuse was  undoubtedly  perpetrated  by  the  deceased,  it  cannot  be  said  to  have  been causative of any loss of self-control by Mr D  .   Any loss of self-control was not caused by the acts of the deceased, but rather by Mr D   becoming aware of the abuse.   And Mr D   did not become aware of those acts from the deceased. Instead, he was made aware of them by his sisters.

[24]     If the submission for Mr D   is correct, provocation would be available as a defence in circumstances where the provocative words or conduct occurred many years ago and the victim has not contributed in any way to the actual incident that has led to the loss of self-control by the accused.  I do not consider that that can be correct.  There must be a proximate and causative relationship between the conduct relied upon and the events that have led to the death of the deceased.

[25]     If provocation is to be available in the present case, therefore, it must arise as a result of the events that occurred once Mr D   arrived at the address in Struve Street and began speaking to the deceased.   The only evidence of what occurred at that time is to be found in the videotaped interview that Detective Russell Crawford conducted with Mr D   on 2 October 2007.

[26]     During that interview Mr D   explained his reasons for going to the house as follows:

RC      …   And where did you go to once you left Raglan?

JD       Oh   we   drove   down   the   back   roads   from   Whatawhata   to

Ngaruawahia.

RC      And why did you go to Ngaruawahia?

JD       To, I just wanted to go and talk to my step, ah I wanted to talk to Dad and see what, ah get, try and get some understanding of.    It wasn’t the first time I’ve probably tried to talk to him drunk but there was just that much of a build up of how he, I found out he molested the last of, my sister so I just wanted to talk to him and ask him why.

…

[27]     Mr D   then said that after arriving at the address he knocked on the door. When the deceased opened a curtain, Mr D   asked him whether he wanted a cigarette.   He said that the deceased just looked at him for a few seconds and then shut the curtain.    Mr D   said that he then sat down on the step for a period, during which he knocked on the door on several further occasions.    The deceased did not answer any of those knocks.   This must have been at around 5.20 to 5.30am, because the deceased sent text messages at 5.25am and 5.30am telling his sister and an associate that Jamie was outside his house.

[28]      Mr D   then said:

JD       No reply.    Um, I noticed it was just starting to get light and I was saying oh, I think I would have called out to him again Dad can I just talk with you please and then I just happened to notice a window open right next to me.

RC      This is beside the front door?

JD       Yeap, yeap.    So I hopped through the window and I was in one room and I just walked to the door in that room.   I don’t know if it was a glass door.    I can’t remember if it was a glass door.    That room was pretty dark.    I just seen light through the door so I just walked to the door and opened the door up and Dad was lying on the, on a couch there with a blanket over him.   He was awake and he was looking at me.    I remember just walking over and saying I’ve still got, I’ve still got my diabetes and he said oh that’s no good and I, and I said to him I’ve come to talk to you Dad why, bout, bout my sisters.    Why, why did yah, why did yah (cries), why did yah molest her, why did you fuck my sisters (cries).    Why?    Why did you fuck my sisters (long pause and crying)?   And he said I’m sorry I don’t know.   I said why?

RC      Jamie, sorry Jamie.

JD       (inaudible) I just lost it and just started punching him.   I just, I don’t know what happened, I just lost it and just started punching him. He leaned forward off the couch and onto the carpet and I heard him say Jamie and I just kept punching him, punching him saying you fucking, I was just (crying) (mumbles).    I just kept punching him (crying – long pause).   He was just lying.

RC      Sorry Jamie I can’t hear you.

JD       He was just lying down on his back and I just kept punching him. RC        Where were you punching him?

JD       (inaudible) Just in the, in the, in the head, in the face.   I just lost it, I just lost it.    I was just punching him.    I don’t know how many times, it was heaps.   And then I just freaked out.   I was just, freaked out and ah freaked out and stopped and stood over him and thought what the fuck have I done, what have I done (cries).   I just grabbed him and said Dad, then I fucken just waited for a few minutes and I thought fuck, fucken he’s dead, he’s fucken dead (cries).    At that stage I had blood.

…

RC      What were you thinking while you were punching him?

JD       While I was punching him, I was just saying you fucked my little sisters, you fucked them, why (cries)?    Why?    I’ve told you that anyway.

…

RCWhen ah, are you, just going back sorry, just going back to the, while you were inside the house with Allan, beside punching him, is there anything else that you did to him?

JD       No definitely not.

RC      How many times do you think that you punched him? JD   Probably 20-40 times or something.

RC      20-50? JD         Yeah

RC      And what were you saying to him while you were doing that?

JD       I told you, I said you’re fucking my sis, little sisters, you’re fucking my sisters.

RCThe reason why I ask you um whether you done anything else to Allan is that um, the Pathologist has found um, in the during the post-mortem, he’s got severe, oh he’s got a number of broken ribs on either side and his sternum has been crushed.   Can you tell me how he, he would have received those injuries?

JD       Oh probably just from punching him like, when I, I just lost it okay, I just lost it and just started punching him and punching him.     I probably,  probably  was  missing  some.      I  don’t,  I  could  have punched him more times.    I just kept punching him and punching him.   (pause)   I just kept punching him.

[29]     It is noteworthy that Mr D   did not say that the words or conduct of the deceased caused him to lose control.   He says only that he does not know what happened and that he just “lost it”.

[30]        Moreover, it appears that the deceased only uttered two sentences before Mr D   began assaulting him.   In the first he commiserated with Mr D   after Mr D   told him that he still had diabetes.     The deceased responded to that information by saying “Oh that’s no good”.     Then, when Mr D   asked his stepfather why he had abused his siblings, his stepfather said “I’m sorry I don’t know”.

[31]     I do not consider that either of those responses could realistically be viewed as providing a credible or plausible narrative for a defence based on provocation notwithstanding the context in which they were given.     The responses that the

deceased gave were entirely conciliatory in nature.   They are not, in my view, capable of amounting to provocative conduct for the purposes of s169 of the Act.   I do not consider, either, that they could be sufficient to cause a person having the power of self-control of an ordinary person of that power of self-control.

[32]     In some respects the argument for Mr D   is similar to that advanced for the appellant in La Roche.   In that case the appellant had killed his wife, from whom he was separated.  He submitted that his frustration had built up as a result of intense worry about the welfare of his children.     This increased as a result of repeated setbacks at the hand of the Family Court, which had given his wife custody of the children of the marriage.   The appellant believed that one of his children had been sexually abused and at least one of them had been physically abused.     He also believed that his wife was not able to protect the children from physical and sexual abuse and from the other risks of childhood.

[33]     Although counsel for the appellant accepted that provocation must emanate from the victim, he submitted that she had been a party to the ongoing saga in that she was a party to the proceedings in the Family Court and was the ultimate beneficiary of those proceedings.   Counsel for the appellant therefore submitted that the victim had been a party to the process by which the appellant was excluded from the care and protection of their children.

[34]    The Court of Appeal rejected the submission that this could amount to provocation.   It said at [58] that there was no suggestion of any improper conduct by the victim in the Family Court proceedings and that the exercise of a legal right to have custody and access issues determined by the courts could not amount to provocative conduct.   Importantly, the Court also said at [55]:

We  now  move  to  the  first  and  second  criteria  –  that  provocation  must emanate from the victim or be provocation to which the victim is a party and that it be sufficient to deprive an ordinary person of the power of self- control.     In this case there  was  no  evidence of any provocation  at  all emanating from Mrs Bennellick in any proximity to the attack.    Indeed, it appears that the only thing she did on the day of the attack was respond to Mr La Roche’s greeting.   …

[35]     It seems to me that the same situation arises in the present case.   The defence can not point to any provocative words or conduct emanating from the deceased in any proximity to the assaults by Mr D  .

Result

[36]     For these reasons I do not consider that there was a sufficient evidential basis for the partial defence of provocation to be left to the jury.

Lang J