R v Dixon
[2007] NZCA 398
•7 September 2007
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ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF NEW TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA201/05 [2007] NZCA 398
THE QUEEN
v
ANTONIE RONNIE DIXON
Hearing: 24 July 2007
Court: Chambers, Keane and MacKenzie JJ
Counsel: B J Hart, G J King, and A J Trenwith for Appellant
S J E Moore and E C Finlayson-Davis for Crown
Judgment: 7 September 2007 at 11 am
JUDGMENT OF THE COURT
A The appeal is allowed.
B All convictions are quashed.
CA new trial is ordered on all counts on which the appellant was convicted.
R V DIXON CA CA201/05 7 September 2007
DAn order is made that the reasons for judgment are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial. Publication in a law report or a law digest is, however, permitted.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
An 11 hour reign of terror [1] Issues on the appeal [14] Was the summing up correct in its treatment of the second limb
of the insanity defence? [19]
Was the summing up correct in how it dealt with intoxication? [38] Should manslaughter have been left to the jury? [51] Conclusion [54]
An 11 hour reign of terror
[1] Between 7 pm on 21 January 2003 and 6 o’clock the next morning, Tony Dixon, the appellant, unleashed a reign of terror, which left one person dead and a number of others severely injured and traumatised. There was and is no dispute the terrible events about to be summarised occurred. The question at trial was what led Mr Dixon to act as he did.
[2] The events began in the converted shed in which Mr Dixon was living at Pipiroa, a small farming settlement on the Hauraki Plains. Mr Dixon attacked his current partner, Renee Gunbie, and a former partner, Simonne Butler, who was visiting, with a samurai sword. The injuries to Ms Gunbie were dreadful: her right hand was completely severed and in addition she received a fracture to her skull, injuries on the side of her head, including the removal of scalp and hair, very deep gashes to her neck and shoulders, and a broken left arm. Ms Butler suffered a partially severed left arm, a virtually severed right arm, and deep gash wounds on her
left arm and right shoulder. Both women were within minutes of death at the time they were attended to by ambulance and emergency services.
[3] Following this attack, Mr Dixon and a friend, Roger Reekers, who had been present in the shed at the time of the attack, drove off at speed to Hamilton. Both men smoked methamphetamine, a class A controlled drug, as they travelled. They used Mr Reekers’s meth pipe, which Mr Dixon managed to break.
[4] After they reached Hamilton, Mr Reekers left Mr Dixon. Mr Dixon converted a car and began to drive north. At a service station in Manukau City, Mr Dixon bought a domestic light bulb, for the purpose of continuing to smoke methamphetamine following the breakage of the meth pipe. By this stage, Mr Dixon was armed with a .22 calibre machine gun.
[5] Mr Dixon then drove to Pakuranga. He parked his car near two others behind a service station. Mr Dixon began to gesture and mouth obscenities at the inhabitants of one of the cars. James Te Aute, who was in one of the parked cars, got out of his car and walked towards Mr Dixon’s car. He got close to it, but then must have seen something. He turned and ran. But as he did so, Mr Dixon emptied the ten shot magazine. All ten bullets hit Mr Te Aute’s back at short range. He died almost immediately.
[6] Mr Dixon then drove slowly away. One of Mr Te Aute’s friends, Steven Matthews, who had just witnessed Mr Te Aute’s killing, pursued Mr Dixon. Mr Dixon on several occasions leaned out of the window of his car and fired shots at his pursuer. One bullet struck the driver’s door pillar.
[7] By this time the police were determinedly trying to capture Mr Dixon. Mr Dixon approached a police cordon in Howick. Mr Dixon drove off, turned into a cul-de-sac, and concealed his car behind shrubbery growing on a traffic island. As the pursuing police car approached the traffic island, Mr Dixon drove out quickly and past the police car. As he did, Mr Dixon, gun in hand, lined the police car up with the firearm. It is not known whether the gun was discharged, but no shots were heard.
[8] A short time later, Senior Constable David Templeton encountered Mr Dixon driving slowly with the lights off. Senior Constable Templeton gave chase. As Mr Dixon drove into a roundabout, he fired shots at Senior Constable Templeton’s car. One bullet hit and penetrated the sill on the driver’s door.
[9] Mr Dixon then drove to East Tamaki. He drove into a property and confronted the owners with his gun. The female occupant managed to escape, but the male occupant, Ian Miller, was held as a hostage. For the next three hours or so, Mr Dixon took part in a number of conversations with a police negotiator, Detective Sergeant Wendy Spiller. Eventually, Mr Dixon was persuaded to release Mr Miller. At about 6 am, Mr Dixon surrendered to the police.
[10] Mr Dixon faced 12 charges, four of them alternative charges. He pleaded not guilty. The principal defence run at trial was insanity. There was no real dispute as to what had happened: the focus at trial was on Mr Dixon’s state of mind during the
11 hour reign of terror. Subsidiary issues at trial related to state of mind (eg intent, knowledge of consequences), especially relating to the influence of methamphetamine intoxication on what everyone agreed was a disordered mind (though not necessarily an insane one). We should say at the outset the trial judge, Potter J, faced a formidable task in the running of this trial, as it gave rise to extremely complex evidence and equally complex issues of law. In particular, the trial threw up tricky problems as to the intricate interrelationship of insanity and intoxication.
[11] Following trial before Potter J and a jury, Mr Dixon was found guilty of murdering Mr Te Aute. He was found not guilty of attempting to murder Ms Gunbie, Ms Butler, Mr Matthews, and Senior Constable Templeton. In each case, however, he was found guilty of the alternative charges. These were, in the case of Ms Gunbie and Ms Butler, counts of wounding with intent to cause grievous bodily harm and, in the case of Mr Matthews and Senior Constable Templeton, counts of discharging a firearm at them with intent to do grievous bodily harm. In addition, Mr Dixon was found guilty of using a firearm against a law enforcement officer, aggravated burglary of Mr Miller’s home, and the kidnapping of Mr Miller.
[12] Potter J subsequently sentenced Mr Dixon to life imprisonment and ordered that he serve a minimum period of imprisonment (MPI) of 20 years.
[13] Mr Dixon now appeals against his conviction and sentence.
Issues on the appeal
[14] Mr Dixon, through his lawyers on the appeal, Messrs Hart, King, and Trenwith, challenged the convictions on three bases, all of which related to the judge’s summing up.
[15] The first issue is whether the summing up was correct in its treatment of the second limb of the insanity defence.
[16] Secondly, it was submitted the summing up was incorrect in how it dealt with intoxication.
[17] Thirdly, Mr Hart submitted manslaughter should have been left to the jury.
[18] If the appeal against conviction failed, then Mr Hart pursued an appeal against sentence. He submitted the MPI of 20 years was too long.
Was the summing up correct in its treatment of the second limb of the insanity defence?
[19] Section 23(2) of the Crimes Act 1961 provides as follows:
No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable –
(a) Of understanding the nature and quality of the act or omission;
or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
[20] Mr King, who argued this part of the appeal on Mr Dixon’s behalf, submitted that the judge’s summing up on the second limb – para (b) – was erroneous. The judge said on this second limb:
[94] Alternatively, and you will note that there is an “or” between the two alternatives in s 23(2)(b), was the disease of the mind of such an extent that the accused was incapable of knowing that what he did was morally wrong, having regard to the commonly accepted standards of right and wrong. In other words, the accused may be capable of understanding the physical nature and consequences of what he did, but incapable of understanding that other people would regard it as wrong for him to do so. If he was incapable of understanding that what he did was morally wrong having regard to the commonly accepted standards of right and wrong (and that is a matter for you), because of the disorder of rational thought following on from the disease of the mind, then he should be acquitted.
[95] The question is: Was Mr Dixon suffering from a disease of the mind which so disordered his powers of reason, that he was incapable of rationally making the distinctions which ordinary people make, between acts that are right and acts that are wrong? If through the disordered condition of his mind he could not reason about the matter of right and wrong with some degree of rationality and composure, you may conclude that he could not know that what he was doing was wrong. The relevant assessment is whether this accused, Mr Dixon, knew at the time he carried out the offending, that it was morally wrong to do so.
[96] I emphasise that the test is whether a person was incapable of understanding those things. “Incapable” is an absolute term. It means, not able to understand at all. [Emphasis in original]
[21] Mr King submitted the test the judge had directed the jury to apply was inconsistent with this court’s decisions in R v MacMillan [1966] NZLR 616, R v Smith (1995) 12 CRNZ 616 and R v Rotana (1995) 12 CRNZ 650. Under the test propounded in those cases, Mr King contended, the defence did not have to establish that the accused was incapable of knowing right from wrong but merely that, because of mental illness, he did not regard the act as wrong for him to do.
[22] Mr King further submitted the summing up was incorrect in ruling that Mr Dixon’s drug-induced intoxication was irrelevant to the issue raised by s 23(2)(b). We shall deal with that question in the next section of these reasons, where we deal with the topic of intoxication generally.
[23] We turn therefore to consider Mr King’s first submission under this head. Did the judge give an incorrect focus to what the jury had to decide under s 23(2)(b)?
The leading authority under s 23(2)(b) is undoubtedly MacMillan. In that case, Turner J, for the court, observed that s 23(2) of the Crimes Act was intended to be a restatement of the law of insanity as it had first been expounded in M’Naghten’s case (1843) 10 Cl & Fin 200; 8 ER 718. The forerunner for subs (2)(b) was this part of that judgment (at 210; 722):
… to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind … that he did not know he was doing what was wrong. [Emphasis added by Turner J when citing that part of the judgment: MacMillan – at 621.]
[24] Turner J, having cited that rule from M’Naghten’s case, went on to observe at
621:
This was transformed in [s 43(2) of the Crimes Act 1908] to “… to such an extent as to render such person incapable … of knowing that such act or omission was wrong”. We do not think that any difference in meaning was intended, and that as this Court accepted in Murdoch v British Israel World Federation (NZ) Inc [[1942] NZLR 600; [1942] GLR 390] it was not intended by using the word “incapable” in s 43 of the 1908 Act to alter in any way the test proposed in M’Naghten’s case, viz, that by reason of a defect of reason arising from disease of the mind the accused did not know that he was doing what was wrong – see per Sir Michael Myers CJ (ibid, 629 lines 28-31; 401) where the learned Chief Justice expressly treats the two sets of words as equivalent one to the other; per Ostler J (ibid, 637 lines 32-
37; 406) where perhaps an even more express statement is to be found; per
Smith J (ibid, 648 lines 35-40; 413). [The emphasis is Turner J's.]
[25] Turner J then went on to consider the amendment to the insanity defence made by the 1961 Act. “Knowing that such act or omission was wrong” in s 43(2) of the 1908 Act was changed to “knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong”. This court expressed the “clear” view that this change was not intended to alter the law as it had been interpreted in Murdoch. The additional words were intended to make clear that the wrongness which an accused person must be incapable of perceiving was “a moral and not a legal wrongness”. There had been a debate on that topic, with the High Court of Australia going one way in Stapleton v R (1952) 86 CLR 358 and the English Court of Criminal Appeal the other in R v Windle [1952] 2 QB 826. These additional words were intended to make clear that the Stapleton approach was to be followed in this country.
[26] Turner J concluded at 622:
If it can be shown that the accused, by reason of disease of the mind, did not know that his act or omission was wrong, then he will be excused on the ground of insanity; if it is inquired whether “wrong” means legally or morally wrong, the Legislature replies that the moral standard is the proper one; and if the further inquiry is superadded “But what is meant by ‘morally wrong’?”, then the answer is, as proposed by Dixon J [in R v Porter (1933)
55 CLR 182], that the meaning to be given to that phrase is the meaning which is commonly accepted.
[27] The “practical effect of this decision” has been described in this way in
Simester and Brookbanks Principles of Criminal Law (3ed 2007) at [10.3.5]:
The practical effect of this decision has been to affirm that the statutory test for insanity in New Zealand is based on a subjective moral standard. This implies that an accused will not be criminally responsible for his acts if, as a result of mental disease, he believes he is morally justified in his behaviour even though he may have known that his acts were illegal and/or contrary to public standards of morality (i.e. that he would be condemned in the eyes of “right-thinking people”).
[28] The learned professors note that, in the second edition of F B Adams’s Criminal Law and Practice in New Zealand (1971), the author was critical of the judgment in MacMillan as being “directly contrary to the words of the Act”. (F B Adams’s criticism is not reflected in the current edition of that work: see Robertson (gen ed) Adams on Criminal Law (looseleaf ed) at [CA23.18].) It is undoubtedly the case that the interpretation of s 23(2)(b) given in MacMillan does not accord with the literal words of the section, but the courts never support literalism at the expense of purpose and intent. Professors Simester and Brookbanks go on to explain why this court’s interpretation of s 23(2)(b) is correct, even if, at first blush, it appears contrary to the literal words of the section (at [10.3.5]):
The reason why this approach may now be accepted is that it conforms both with the way in which exculpatory insanity has been understood historically, and that it reflects sound common sense. No person should be convicted of a crime whose mind is so disordered that he is unable to make the moral judgments which, in “sane” people, enable them to live socially integrated lives and to choose conduct which conforms with both moral and legal norms. It is that capacity which is so radically lacking in an “insane” person.
[29] We have no doubt that MacMillan represents the law in New Zealand. We note that it has subsequently been followed by this court in Smith and Rotana. What it makes clear is that the question under subs (2)(b) is simply “Did the accused,
because of the disease of his mind, not know that what he was doing was morally wrong?” The focus is on the accused’s state of mind and whether he appreciated that what he was doing was wrong.
[30] With that background, we now turn to consider Potter J’s summing up at [94]-[96]. By this stage of the summing up, Her Honour had already addressed the jury on the concept of “disease of the mind”. The jury would have had to conclude that Mr Dixon was probably suffering from “a disease of the mind” before they considered her instructions at [94]-[96].
[31] What the judge said in the last sentence of [95] was correct. That sentence was correctly focused on the issue, namely whether Mr Dixon knew, at the time he carried out his offending, it was morally wrong to do so. But the majority of us consider that that simple instruction was in conflict with the flavour of the instruction viewed overall. The overall thrust of the direction was that the jury were to make an assessment of the capacity of Mr Dixon’s brain to rationalise what was morally right and wrong. This focus on “capacity” was indeed emphasised by the judge at [96]. She there directed that this limb of the defence could be established only if the jury were satisfied that the state of Mr Dixon’s brain was such that he was totally incapable of understanding what was right and what was wrong.
[32] In the majority’s view, this part of the summing up did not conform with the interpretation of s 23(2)(b) given in MacMillan. The jury should have been simply asked whether the defence had established, on the balance of probabilities, that Mr Dixon, because of his disease of the mind, did not know that what he was doing was morally wrong. This is a comparatively simple inquiry, but simplicity in this area is highly desirable. As Dixon J said in his classic direction in Porter, “I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about. … We are not dealing with right or wrong in the abstract. The question is whether [the accused] was able to appreciate the wrongness of the particular act he was doing at the particular time.” What is to be avoided is any suggestion that, under this limb of the insanity defence, the jurors’ task is to perform a neurological or psychiatric
assessment of the accused’s brain or its workings, with a view to establishing its
capacity.
[33] One of our number does not agree that the overall thrust of the direction was wrong. In his view, the direction in [94], although structured according to the words of the section, did not conform with the interpretation in MacMillan. But the correct issue was made clear to the jury in [95], and was reiterated when the judge discussed the psychiatric evidence, especially at [104] and [107], where she summarised their opinions on whether “he knew [his acts] were wrong” and whether “Mr Dixon did not know that what he did was wrong”. In the view of the minority, the summing up made clear to the jury the correct test on this issue.
[34] Potter J had given the jury an elements sheet. We applaud that: elements sheets or question trails are of significant benefit to juries in cases such as this, with multiple charges and difficult issues arising from the defences being run. When it came to insanity, however, all the judge did was reproduce s 23 of the Crimes Act. With respect, that was not helpful, as a literal reading of the section leads one to error. This court’s interpretation of s 23(2)(b) in MacMillan is not the literal interpretation; it is an interpretation based on historical context, and in particular on an understanding of M’Naghten’s case and decisions based on it. Jurors would be, of course, quite unaware of that context and those subtleties. To give the jury the unvarnished section would be unfortunately likely to lead them into error as to the correct focus of their inquiry. It would have been preferable had the judge posed the question in the simple terms we have expressed above, namely:
Did Mr Dixon, because of the disease of his mind, not know that what he was doing was morally wrong?
[35] We have some sympathy with the judge with respect to her error on this issue. It appears she modelled this section of her summing up, at least in part, on the summing up in R v Lipsey-McCarthy CA237/04 28 October 2004. (We know this case was referred to Potter J before she summed up, because Mr Moore, who appeared for the Crown both at trial and before us, told us he had referred her to it.)
At [19] of this court’s decision, part of the trial judge’s summing up was set out. This court then said at [20]:
The argument was that the direction did not take account of degrees of capability, but we think such argument is misconceived. It confuses the standard of probability required to establish the defence and the standard of incapability which is one of the elements of the defence. Incapability is an absolute, not a relative concept.
[36] It will be immediately apparent that the argument the court was addressing in Lipsey-McCarthy was different from Mr King’s argument to us. We agree that the argument presented in Lipsey-McCarthy was misconceived. What this court did not deal with in Lipsey-McCarthy, however, was the argument presented to us, based on MacMillan and the cases following it. Indeed, those cases were not cited to the court, just as they were not cited to Potter J.
[37] Our answer to the first issue is, therefore, that the summing up was not correct in its treatment of the second limb of the insanity defence.
Was the summing up correct in how it dealt with intoxication?
[38] The second principal issue on the appeal was whether the judge correctly dealt with intoxication. She dealt with it first after she had discussed the elements of the various charges and before she dealt with insanity. She was explicit in her summing up: “The only relevance [of intoxication] is as to intent.” Even there, it was a factor only if the jury considered it reasonably possible that Mr Dixon “was so intoxicated by methamphetamine use that he did not form any intent at all”.
[39] Somewhat inconsistently with that direction, however, the judge reverted to the topic of intoxication when discussing “disease of the mind”, the first step of the insanity defence. She at that point told the jury that a disease of the mind “must be more than a transitory mental condition or state caused by the effects of drugs”. That is quite correct. She then went on to say:
A disease of the mind may occur when the drugs taken aggravate or elevate a pre-existing mental illness. But more is required than temporary effects on the accused’s mental processes of methamphetamine used or taken. The important thing is whether, at the time of the offence, there was a
derangement or disorder of the ability to understand, to reason and to think rationally.
If you, the jury, were to accept that there was a latent mental illness which was triggered into existence by the accused’s use of methamphetamine, or that there was a pre-existing illness which was exacerbated, aggravated, by the use of methamphetamine, then you may go on to decide whether the accused was in fact suffering from a disease of the mind at the relevant time.
[40] Again, there is nothing wrong with that direction, which is consistent with Attorney-General for Northern Ireland v Gallagher [1963] AC 349 (HL) and (arguably) Lipsey-McCarthy at [11]-[14]. See too Simester and Brookbanks at [10.3.3(2)] and Brookbanks (ed) Psychiatry and the Law (2007) at [6.4.4].
[41] But those two areas – intent and disease of the mind – were the only areas on which the judge directed intoxication could have a bearing.
[42] Mr Trenwith, who argued this aspect of the appeal, submitted the judge was wrong to limit intoxication’s influence to those two areas. For a start, he submitted intoxication could also be relevant to whether or not, under s 23(2)(b), Mr Dixon knew that what he was doing was morally wrong. Mr Moore submitted it did not matter that the judge did not refer to intoxication at that stage, because, he said, “the effects of the appellant’s drug-taking would already have been taken into account by the jury” when considering whether he had a disease of the mind. With respect, we do not think that is right. This was a different issue with a different focus. The focus at the first step was on the potential effect of drug-taking on a pre-existing mental illness Mr Dixon may have had; the focus under subs (2)(b) was or should have been on the effect intoxication may have had on whether Mr Dixon knew what he was doing was morally wrong.
[43] Intoxication can also be relevant to questions of specific intent (eg on the charges of wounding with intent, whether Mr Dixon’s intent was to cause really serious harm), knowledge of consequences of one’s actions, and recklessness. Mr Trenwith referred to cases such as R v Kamipeli [1975] 2 NZLR 610 at 616 (CA), R v Tihi [1990] 1 NZLR 540 at 544 (CA), R v Hagen CA162/02 4 December 2002 at [38], R v Purcell CA42/05 20 June 2005 at [15]-[19], R v Storer CA368/05 2 May
2006 at [15]-[27], and R v Tukaki CA360/05 14 June 2006 at [19]-[31]. In all these
cases, trial judge errors with respect to intoxication directions led to the quashing of convictions and orders for new trials.
[44] Mr Moore submitted that, if the judge was in error, it was merely an omission and unimportant. That was because, he said, it was “unlikely that the jury, when considering the charge [of murder], considered the appellant’s intoxication when assessing his intention to cause bodily injury but not when assessing his knowledge as to the likelihood of death”. We cannot be sure Mr Moore’s speculation in that regard is well-founded. There are two reasons for our uncertainty. First, the judge was explicit that intoxication was relevant only to intent. Secondly, her discussion on the topics of knowledge of consequences of one’s actions and recklessness was extremely brief, a topic to which we shall revert shortly.
[45] Intoxication could potentially have been particularly relevant to the murder charge. The Crown relied on both s 167(a) and s 167(b). The latter provides that culpable homicide is murder “if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not”. Intoxication can be relevant to all three parts of that inquiry. It is by no means fanciful that the jury did find Mr Dixon guilty under s 167(b), as opposed to s 167(a). We say that in light of the fact the jury found him not guilty on all four attempted murder charges. Mr Moore, for the Crown, agreed that must have been because the jury were not satisfied he had the specific intent required for an attempted murder charge. (Attempted murder, unlike murder, requires a specific intent to kill.)
[46] There are a number of ways in which the jury’s verdicts can be rationalised. One possibility – and it is only a possibility – is this. The jury found him not guilty on the four attempted murder charges because, while they did not think him insane, they did not think he could form an intent to kill as a consequence of his intoxication, especially in conjunction with the severe personality disorder, namely psychopathy, under which all experts agreed Mr Dixon laboured. The jury were, however, able to find him guilty of murder under s 167(b), which did not require an intent to kill. The jury had been told intoxication was relevant only to intent; they might well have reasoned, therefore, that intoxication was irrelevant to the question
whether he knew the bodily injury he caused to Mr Te Aute was likely to cause his death and was irrelevant to the question whether Mr Dixon was reckless whether death ensued or not. Ignoring intoxication, they could be satisfied on those elements. If that was the jury’s reasoning, it was based on a false premise as to the irrelevance of intoxication to issues of knowledge of likelihood and recklessness.
[47] We observe in passing that the judge’s explanation of the elements of murder was extremely spare. Her sole explanation was as follows:
I then move to Count 5. We have moved on now from the events at Pipiroa to the events at Dunrobin Place. The Crown charges the murder of James Te Aute. The Crown must prove that the accused killed James Te Aute, and that he did so by an unlawful act. Shooting is an unlawful act, it is an assault in our law. And that the accused either intended to kill James Te Aute or intended to cause him bodily injury which the accused knew was likely to cause death and was reckless (which simply means uncaring) whether death ensued or not. So those are the essential elements of the crime of murder – Count 5 – that he killed James Te Aute, that he did so by an unlawful act, and either that he intended or meant to kill him, or that he meant to cause him bodily injury and was uncaring whether death followed although he knew that it was likely to do so.
[48] We consider the jury required more explanation, in particular with respect to the s 167(b) route to murder. Specifically, the jury needed assistance on how intoxication could have a bearing on the elements of s 167(b), either on its own or in conjunction with Mr Dixon’s underlying mental disorder.
[49] Helping the jury as to the legal effects of intoxication is a very important task of the trial judge. Mr Kamipeli and Mr Tukaki show why. Each was convicted of murder at his first trial where intoxication was inadequately explained; each was acquitted on murder but convicted on manslaughter at his retrial.
[50] Mr Trenwith’s submission on this topic was well made. The summing up was in error in restricting the relevance of intoxication to intent.
Should manslaughter have been left to the jury?
[51] The third ground of appeal related to whether manslaughter should have been left to the jury. This aspect was argued by Mr Hart for the appellant. Mr Hart, who
was lead trial counsel, accepted he had not asked the judge to leave manslaughter. That is not fatal, however, as it is the judge’s duty to leave the issue of manslaughter in appropriate cases, whether the defence have relied on it or not: Kwaku Mensah v R [1946] AC 83 at 92 (PC) and R v Hamilton [1985] 2 NZLR 245 at 251 (CA).
[52] We agree with Mr Hart’s submission that manslaughter should have been left. This case was not necessarily restricted to either a finding of murder or a finding of insanity. Manslaughter was possible, especially if the jury considered intoxication, whether on its own or in combination with Mr Dixon’s severe personality disorder, rendered him incapable of assessing the consequences of his actions. It was possible that the jury might not find Mr Dixon had formed an intent to kill; after all, as we have observed, they were not satisfied he had an intent to kill Ms Gunbie, Ms Butler, Mr Matthews, and Senior Constable Templeton. It was also possible they would not be satisfied on all elements under s 167(b).
[53] Mr Hart submitted the failure to leave manslaughter to the jury was such a fundamental error that, on this ground alone, the appeal against conviction for murder should be allowed. He submitted this was a position adopted by the final courts of appeal in England and Wales, Canada, the United States, and Australia. He cited R v Coutts [2006] 1 WLR 2154 at [27], [61] and [91] (HL), R v Jackson [1993]
4 SCR 573, Keeble v United States (1973) 412 US 205 at 212-213, and Gillard v R (2003) 219 CLR 1 at [133]. We do not need to determine whether that proposition is correct, as we are quite satisfied that the combination of errors to which we have referred means the convictions must be quashed.
Conclusion
[54] We are satisfied that the summing up did contain the errors complained of. Taken together, there is a real risk that a miscarriage of justice was caused. All convictions must be quashed. There will be a new trial on those charges on which Mr Dixon was convicted.
Solicitors:
Crown Law Office, Wellington
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