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R v Frost

R v Frost

Case [2008] NZCA 406 6 October 2008

Self-Serving Statements

Standard and Onus of Proof

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA272/2008
[2008] NZCA 406
THE QUEEN
v
DUNCAN CONRAD MURRAY FROST
Hearing:17 September 2008

Court:Robertson, Wild and Cooper JJ
Counsel:S W Hughes QC and K M Marriner for Appellant

A Markham for Crown

Judgment:6 October 2008 at 4 pm

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION IS DISMISSED.
B        THE APPEAL AGAINST SENTENCE IS ALSO DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]       The appellant was tried for the murder of Angela Deane at New Plymouth on 1 February 2007. His defence was provocation. The jury found him guilty of murder. Heath J considered the appellant had murdered Ms Deane with a high level of brutality and callousness. Accordingly, when sentencing him to life imprisonment, the Judge directed that the appellant was to serve a minimum of 17 years in prison.
[2]       Mr Frost appeals against both his conviction and sentence. He challenges his conviction on two grounds:
(a)The Judge erred in ruling inadmissible parts of the evidence of Dr Tapsell. Dr Tapsell is a forensic psychiatrist called by the defence to give evidence that the appellant suffered from a psychiatric condition that the defence contended was a special characteristic for the purposes of the provocation defence.
(b)The Judge misdirected the jury that the Crown must exclude “the reasonable possibility” that the appellant was provoked into killing Ms Deane. The Judge was required to direct the jury that the prosecution must prove, beyond reasonable doubt, that this was an unprovoked killing.

[3] The basis for the sentence appeal is that this was not a murder engaging s 104(e) Sentencing Act 2002. The correct sentence is life imprisonment with the minimum of ten years’ imprisonment specified by s 103(2).
The conviction appeal
Misdirection on standard and onus of proof

[4]       We dispose immediately of the second ground of appeal, because it lacks any merit.
[5]       “To exclude the reasonable possibility” and “to prove beyond reasonable doubt” are equally acceptable formulations of the criminal standard of proof. R v Wanhalla [2007] 2 NZLR 573 (CA) endorses the former at [50]-[51] and [116].
[6]       Heath J gave a clear direction that the onus of excluding provocation was on the Crown, in fact he gave that direction several times, for example at [47] and [67] of his summing up. The Judge’s jury questionnaire was equally clear:
The Crown must exclude the reasonable possibility that provocation exists. If provocation is not excluded your verdict will be not guilty of murder but guilty of manslaughter.
…
NB:At all stages of the provocation inquiry it is for the Crown to exclude the reasonable possibility that the accused killed in response to provocation from Ms Deane.

There is no problem with the means of expression employed by Heath J.
Wrongful exclusion of part of Dr Tapsell’s evidence
[7] Dr Tapsell’s proposed statement of evidence covered a number of topics and included sections headed:
· Events leading up to the death of Ms Deane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Frost

Details

AGLC: R v Frost [2008] NZCA 406
Case: [2008] NZCA 406
Decision Date: 6 October 2008

CaseChat Overview and Summary

Duncan Conrad Murray Frost appeals against his conviction and sentence for the murder of Angela Deane. Frost's defence was based on provocation, but the jury found him guilty of murder. The trial judge imposed a life sentence with a minimum term of 17 years. Frost contests both his conviction and sentence, arguing that the trial judge erred in excluding certain evidence from Dr Tapsell, a forensic psychiatrist called by the defence, and that the trial judge misdirected the jury regarding the standard of proof for provocation. Frost also argues that his sentence is excessive as his murder did not engage section 104(e) of the Sentencing Act 2002.

The appeal against conviction fails on both grounds. The Court found that the trial judge's direction to the jury on the standard and onus of proof was not in error. The Court further held that the exclusion of certain parts of Dr Tapsell's evidence was proper under section 21 of the Evidence Act 2006, as it is inadmissible for an accused who does not give evidence to offer their own hearsay statement through another witness. The Court also rejected the argument that the exclusion of this evidence breached Frost's right to a fair trial under section 25 of the New Zealand Bill of Rights Act 1990.

Regarding the appeal against sentence, the Court found that the trial judge was correct in imposing a sentence under section 104(e) of the Sentencing Act 2002, considering the brutality and callousness of Frost's actions. The Court held that the trial judge's assessment of the murder as brutal and callous was supported by the evidence, and Frost's subsequent conduct following the murder did not mitigate the severity of his actions.

The appeal against conviction and sentence is dismissed.

Orders