R v Gardner

[2009] NZCA 113

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2007
[2009] NZCA 113

THE QUEEN

v

DARIN JOSEPH GARDNER

Hearing:3 March 2009

Court:Arnold, Ronald Young and Venning JJ

Counsel:B J Hart, G J King and H D M Lawry for Appellant

A F J Perkins and M D Downs for Crown

Judgment:2 April 2009 at 3 pm 

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

PARA NO

Introduction  [1]
Factual background   [3]
Basis of appeal  [12]

DISCUSSION  [13]

Conduct of trial  [13]
             Our evaluation  [30]
      Discharge of juror  [34]
             Our evaluation  [39]
      Defence of another  [43]
             Our evaluation  [44]
      Provocation  [48]
             Section 169(6) – killing someone other than the provoker by accident     [50]
             Onus and standard of proof  [69]
             Threshold set too high  [71]
             Evaluative assessment  [78]
             Corrections  [81]
      Sentence appeal  [83]
Decision  [87]

Introduction

[1]       Following a jury trial before Hugh Williams J the appellant was convicted of two counts of murder, two counts of injuring with intent to cause grievous bodily harm and two counts of injuring with intent to injure.  He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 18 years six months on the murder counts.  He was also sentenced to six years imprisonment on each of the injuring with intent to cause grievous bodily harm counts and to two years imprisonment on one of the injuring with intent to injure counts and 15 months imprisonment on the other.  All sentences are to be served concurrently. 

[2]       The appellant now appeals against his conviction and sentence on the murder counts. 

Factual background

[3]       The appellant and two friends, Anton De Graaff and James Rixon, were drinking at a bar in the Highland Park complex at Howick, Auckland, in the late evening of Saturday 7 October and the early morning of Sunday 8 October 2006.  The complex is adjacent to the Pakuranga Highway and there is a service station nearby.

[4]       About 1 am, Mr Rixon was ejected from the bar.  The appellant and Mr De Graaff stayed on, drinking and dancing.  They left the bar when it closed at 3 am.  As there were several other bars in the complex closing at the same time, there were numerous groups of people in the area outside the complex.

[5]       The appellant and Mr De Graaff met up again with Mr Rixon and the three of them began to walk off, past a service station.  They came across another group of three people, a woman and two men, who had been at another bar.  Mr De Graaff began to shout abuse at these people and then attacked one of the men, rendering him unconscious.  The appellant attacked the other man, causing him injury.  In addition, the appellant was seen kicking the unconscious man.  These attacks were the subject of the two injuring with intent to injure counts against the appellant.

[6]       Numerous other people in the vicinity saw the attacks on these two men.  Among them was a group of about 10 people who took offence at what they regarded as an unprovoked assault by the appellant’s group on the men.  They went towards the appellant and his two companions.  Footage from the security cameras at the service station showed Mr De Graaff confronting the pursuing group and challenging them to fight.  The pursuing group chased Mr De Graaff and the other two towards the highway and ultimately caught up with them there.

[7]       The appellant and Mr Rixon became separated from Mr De Graaff about this point.  The appellant ran to his car, which was parked nearby, and Mr Rixon ran off somewhere else. 

[8]       Mr De Graaff was still challenging the pursuing group to fight.  By this stage they were all on the highway. Mr De Graaff punched one of the members of the pursuing group, who fell to the ground, pulling Mr De Graaff with him.  The remaining members of the pursuing group began to punch and kick Mr De Graaff while he was on the ground. In his video interview the appellant said that by this stage Mr De Graaff and the group fighting with him were on a traffic island in the middle of the highway.

[9]       Other people in the vicinity moved onto the roadway, either to see what was going on or to attempt to intervene in some way.  By this time the appellant had started his car.  According to the evidence, he drove the car along the highway at the onlookers (and not at the group attacking Mr De Graaff) at around 50 – 60 kph.  Some people were able to jump out of the way, but three were not.  One, Mr Kane Wright, suffered injuries from which he died and two others suffered non-fatal fractures, cuts, bruises and abrasions.  These were the subject of one of the murder counts and the two wounding with intent to cause grievous bodily injury counts.

[10]     While this was occurring, the attack on Mr De Graaff was continuing on the traffic island.  It is clear from his video interview that the appellant was aware of this.  The appellant drove his car along the road for a further 100 metres or so, executed a 180 degree handbrake turn, and then drove back, on the wrong side of the road, at the people remaining on the road.  One of these was the young woman, Ms Melissa Viall, who had been with the two men initially attacked by the appellant and his companions.  She was on the road bending down to assist Kane Wright.  The appellant’s car, which was travelling at about the same speed as on the first occasion, struck her, killing her instantly.  This was the subject of the second count of murder.

[11]     The appellant then fled the scene, returning some time later with some friends to find Mr De Graaff.

Basis of appeal

[12]     We summarise the grounds of appeal as follows:

(a)The trial miscarried because, as a result of the layout of the courtroom and what occurred both outside and in the courtroom, the jury was intimidated.

(b)The trial miscarried as a result of the circumstances leading to the discharge of one of the jurors.

(c)The Judge dealt with the appellant’s principal defence – that he was defending Mr De Graaff (defence of another) – in his summing up in a way that undermined the defence.

(d)The Judge made material errors in his summing up in relation to the partial defence of provocation.

(e)The Judge erred in imposing a MPI of 18 years six months.

Discussion

[13]     We will deal with each issue in turn.

Conduct of trial

[14]     Mr Hart argued this part of the case on behalf of the appellant.  He submitted that the layout of the court was such that the victims’ supporters could influence or intimidate the jury by making comments, both in court and outside as the jury entered and exited the courtroom.  The trial was held in Courtroom 15 in the High Court at Auckland.  That is a mid-sized courtroom with seating for about 40 observers in the public gallery.  On this occasion, the capacity of the gallery was increased to about 45 by temporary seating.  In addition, when entering and leaving the courtroom, the jury must walk through the seating area at the back of the court, and through the foyer outside the court.  Mr Hart said that the victims’ supporters made derogatory comments about the appellant and his family both in court and in the presence of the jury as they entered and exited the courtroom.  This, he said, placed undue pressure on the jury and led to an unfair trial.

[15]     Mr Hart submitted that it was the state’s duty to provide court facilities that were safe for participants and suitable for their purpose.  Given the depth of feeling that this incident had given rise to, Courtroom 15 was inadequate and fell short of the appropriate standard.

[16]     In support of these submissions, the appellant, members of his family and friends filed affidavits in which they drew attention to problems which they said had occurred during the course of the pre-depositions, bail, depositions and trial processes.  In particular they claimed that they had been abused and intimidated by members of the victims’ families, and by their supporters, throughout.  In their affidavits they made wide-ranging allegations about what occurred at each stage of the process, but particularly at trial.  They expressed views about the impact on the jury of what they said occurred at trial.  A number described one incident in particular, when Mrs Wright (mother of the deceased Kane Wright) left the courtroom and directed a remark at the accuseds’ supporters as she did so.  Ms Gloria Pennell, the appellant’s mother, also referred to an incident when Kane Wright’s brother, Dylan, abused her outside the doors of the courtroom.  In general, the appellant’s deponents alleged that the Judge had failed to exercise sufficient control over the victims’ supporters and had taken the case personally, so that he could not act impartially. 

[17]     As Mr Downs for the Crown said, much of this evidence was inadmissible hearsay and opinion evidence, and, apart from that, much was irrelevant to the issues on the appeal.

[18]     In his affidavit the appellant claimed that the victims’ supporters shouted obscenities and comments in the course of the trial and that the Judge made no attempt to stop these disturbances.  Rather, he deposed, the Judge indicated to defence counsel that they were expected to put up with it.

[19]     The appellant was cross-examined on his affidavit.  He confirmed that his complaint was that the behaviour of some members of the public might have adversely influenced the jury against his defence.  He denied that he had exaggerated the in-court incidents, although he accepted that some of the comments from those in the public gallery that he said were made might not have been loud enough to be heard by the Judge.  He said that he had made his trial counsel, Mr Gotlieb and Mr Krebs, aware of his concerns.

[20]     In addition, Mr Gotlieb filed an affidavit, as did Ms Northwood (counsel for Mr De Graaff).  Ms Northwood expressed the opinion that the courtroom was overcrowded with members of the families of the deceased.  She said that she saw hostility from them towards her client, and towards her and other defence counsel, and said that she was concerned for her personal safety.  She expressed the opinions that “jury members could have been influenced by the supporters and family of the deceased throughout the whole trial process” and that “the family and supporters of the deceased affected the trial”. 

[21]     In his affidavit Mr Gotlieb did not confirm some of the specific allegations that had been made about what had occurred during the trial, for example, that the Judge had said that the defence was expected to “put up with it” in response to one disturbance.  However, he did confirm others and said that throughout the trial he observed “hostility and anger shown towards the supporters and family of the accused by the family and friends of the deceased”.  He also set out his concerns about the size and configuration of the courtroom, and detailed the additional security measures put in place for the taking of the verdict.  He deposed that he had “some concern” for his own safety during the course of the trial.  He concluded by expressing the opinion that members of the jury “were very much influenced by the supporters and family of the deceased throughout the whole trial process”.   

[22]     Mr Gotlieb was cross-examined.  He accepted that many trials are tense affairs but said that this was the most dramatic trial that he had ever been involved in.  Mr Gotlieb said that he had raised his concerns about the small size of the courtroom with the registrar and assumed that she would pass them on to the Judge.  When pressed as to why he had not raised his concerns directly with the Judge, he said that he had made some comments to the Judge, but “was basically told well that’s the beast, we need to get on with it”.

[23]     Mr Gotlieb confirmed that he did not raise any concerns about what was occurring in the courtroom with the Judge. He explained this by saying that the emotions being shown were to some extent understandable and he could not see any solution to the problem.  In any event, he said, he and his junior were confident that manslaughter verdicts would be returned.  He said that extraordinary security measures were put in place for the summing up as well as for the taking of the verdicts.  As a consequence of this, and because the jury had to walk in and out through the public gallery and the foyer where people were milling about, he ultimately came to the view that the jury were “not going to give manslaughter, they’re going to be too scared”.

[24]     The Crown filed affidavits from Detective Senior Sergeant Lynch and from Detective Bull.  Detective Lynch was the officer in charge of the Police investigation into this offending.  He attended court throughout the trial, and was present outside the courtroom before and after each day’s proceedings.  He said that he had spent time with one of the victims’ families prior to the trial to explain the trial process and to ask them to avoid any conflict with the accused and their families.  He detailed the steps that were taken to keep the group supporting the accused away from those supporting the victims.

[25]     Detective Lynch confirmed the outburst involving Mrs Wright.  However, he said that apart from that there was nothing beyond low murmurings and sighs from both sides from time to time such as commonly occur in the course of a significant trial.  He said that no complaints were made to him about the behaviour of anyone attending the trial.  He expressed the opinion that nothing occurred in the courtroom (in terms of inappropriate behaviour) which required the intervention of the Judge.  He said that the events during the trial were “nothing out of the ordinary for a trial dealing with events of this magnitude”.  The only difference between this and other trials was the number of people present on the first day of trial, and for the taking of the verdicts.

[26]     He did not resile from this under cross-examination.  He described the  affidavits filed on behalf of the appellant as being “extreme exaggerations of what went on”.

[27]     Detective Bull was the officer in charge of witnesses at the appellant’s trial.  He said that the victims’ family members were emotional throughout the trial but in the circumstances were very restrained.  He agreed that the incident described by Ms Pennell involving Dylan Wright had occurred as she recounted it and said that defence counsel had raised the matter with him.  He said that Dylan Wright was calmed down by other family members, and that he had spoken to him about his actions.  He said that he was not approached again about further inappropriate behaviour. 

[28]     Nothing new emerged from Detective Bull’s cross-examination.

[29]     Finally, we have the benefit of a full report from the trial Judge as to what occurred at trial.  Having read the affidavits the Judge reported:

[30]     It is acknowledged that there were minor disturbances from members of the public during the trial and when persons present entered and left the courtroom on occasions but:

a)they were, in the overall context, moderate and low in volume and content and certainly not meriting the description given by the deponents of the actions of the family and supporters of the deceased;

b)there were also similar disturbances during the trial emanating from the family and supporters of the accused;

c)none of the disturbances were such as to affect the continuity of the trial and nor did any of the jurors appear concerned or affected by what took place.  There were no complaints or comments from the jury on this topic throughout the trial;

[31]     A number of the deponents aver that members of the families of the deceased were abusive to the accused in the courtroom.  If so, that was never noticed by the trial Judge or Court staff or, it would appear, by the jury.  Certainly no complaint or criticism was made to the staff or the trial Judge by any juror on that aspect of the matter.

[30]     In addition, the Judge said that no complaints were made about any conduct occurring outside the courtroom.

Our evaluation

[31]     In relation to the size and layout of the courtroom, it may not be ideal that jurors have to enter and leave the courtroom through a public entrance, given the public interest that some cases attract.  But that is the layout of most courts in New Zealand.  In the present case, the Police were clearly attuned to the need to ensure that nothing inappropriate occurred in the court precincts, and took steps to manage the risks.  The size and layout of the courtroom can only be of significance if it led to some prejudice to the integrity of the trial process.  We do not consider that there was any such prejudice in the present case.

[32]     Criminal trials are human processes, and often involve distressing and shocking events.  Inevitably, trials such as the present stir powerful emotions and evoke strong reactions, particularly from those connected with the victims of the offending.  It is not possible, as Mr Gotlieb rightly recognised, to eliminate all manifestations of such feelings from the courtroom.  The best that officials and judges can do is to attempt to manage members of the public in such a way that such emotions and reactions do not materially affect the trial process. 

[33]     Judges must, of course, be careful to preserve the integrity of the court process, and to ensure that the interests of the accused, jurors, witnesses, counsel and others involved are not prejudiced by the behaviour of members of the public.  But the fact that emotions run high at a particular point in a trial, or an intemperate remark is made in the heat of the moment, does not mean that prejudice has necessarily occurred.

[34]     We are satisfied that the police did make effective efforts to manage these issues in relation to the appellant’s trial and accept the Judge’s assessment that, to the extent that there was any such behaviour, it was nothing out of the ordinary.  Hugh Williams J is a very experienced Judge, who would undoubtedly have intervened had he seen any need to do so.  He gave the jury the standard instructions, both at the outset of the trial and in his summing up, that they should decide the case only on the basis of the evidence presented and should not be moved by feelings of sympathy or prejudice.  Defence counsel did not indicate to the Judge that they had concerns about the integrity of the court process as a result of events in or immediately outside the court, although clearly they felt that the courtroom was too small.  No juror complained to the Judge that he or she felt intimidated or under pressure to reach a particular verdict.  In these circumstances, we do not accept that the trial has miscarried on this account.

Discharge of juror

[35]     Mr Lawry argued this aspect of the case.  Shortly before the defence was about to address the jury, the Judge was told that a person had been heard saying to a member of the jury “Hang them, hang them”.  The Judge asked the jury whether any of them had heard such a comment.  One of the jurors advised that she had.  The Judge interviewed her in the absence of the remainder of the jury. 

[36]     The juror advised that she had talked about “random stuff”, nothing to do with the case, with a young woman who was involved in some way with a case in an adjoining courtroom.  The juror said that the young woman knew she was part of the jury in the present case but did not know anything about it.  She said: “I don’t know what she has against the law system or anything but that’s all she’s been telling me is ‘Hang them, hang them’ and I said ‘No, you can’t do that’”.  In response to the Judge’s question about how often the young woman had said this, the juror replied “She tells me that most of the time”.  The juror said that she was not a person who had been sitting in court.

[37]     While that was occurring, the registrar advised that one of the other jurors had also said that he had heard the woman make the same remark.

[38]     The Judge indicated to counsel that although he considered the juror would be able to discharge her duties conscientiously, he thought he should discharge her, given the stage the trial had reached and from an abundance of caution.   He asked counsel for their views.  There was no objection.  The Judge accordingly discharged the juror.  He advised the jury that he was satisfied that the juror would, if asked, say that she could fulfil her duties conscientiously.  But he was concerned with the appearance of justice, and so in an “excess of caution” had decided to excuse her.

[39]     Mr Lawry submitted that in order to discharge the juror the Judge must have decided that she was incapable of performing her duty: s 374(3)(a) of the Crimes Act 1961.  Mr Lawry submitted that the Judge was obliged to make further inquiries of the juror whom he discharged and of the juror who indicated to the registrar that he had overheard the remark.  Depending on the outcome of those enquiries, the Judge should have discharged either neither or both, because no distinction could be drawn between them.  In the alternative, the Judge should have discharged the jury as a whole.

Our evaluation

[40]     In his report, Hugh Williams J said that it had been necessary for him to speak to the discharged juror on two or three occasions prior to her being discharged.  The Judge considered that, although committed and intelligent, the juror seemed to take what he described as “an individual approach” to the discharge of her duties.  On inquiry on those earlier occasions, the Judge considered that she was able to comply with her duties conscientiously. 

[41]     In relation to the incident leading to the discharge, the Judge reported that the juror had struck up an acquaintance with a young woman who was the partner of a person on trial in an adjacent courtroom.  He said this young woman had apparently made remarks critical of the justice system.  The Judge then reported:

[46]     Although as a matter of law the association and the remarks did not appear, of themselves, to warrant discharging the juror, the trial Judge, after investigating the matter and consulting counsel, decided that the cumulative effect of the earlier incidents, the juror’s association with somebody linked to a defendant in another court, and the adverse comments overall made by that person were cumulatively such as warranted taking the decision to discharge her.

[42]     Accordingly, it was not the incident in itself that led the Judge to discharge the juror but rather the cumulative effect of several incidents.  This immediately distinguishes this juror’s position from that of the male juror who overheard the young woman’s remark.  Given this cumulative effect, we consider that the Judge was entitled to conclude that the juror should be discharged on the ground that she was not capable of performing her duty.  We think it relevant in this context, although not of course decisive, that before discharging the juror the Judge consulted counsel and none raised any objection to what he proposed. 

[43]     In the circumstances, we see no need for the Judge to have conducted further inquiries of the jury.  He reminded them in his summing up that they were to decide the case only on the basis of the evidence before them and were not to be influenced by sympathy or prejudice: at [1] and [7] – [8].

Defence of another

[44]     It was submitted that the Judge addressed the jury on the partial defence of provocation before dealing with the availability of the “defence of another” defence under s 48 of the Crimes Act. This was said to be illogical because if accepted, defence of another would have provided a complete defence to all offences, whereas provocation was available only as a partial defence to murder.  It was submitted that this may have undermined the defence case in respect of both defences, although how it might have done so was not spelled out.  It was also submitted that the complexity of the directions on provocation meant that the jury was less open to the “defence of another” defence.

Our evaluation

[45] While the Judge could logically have dealt with defence of another before provocation, we think it likely that the Crown’s explanation for the order he chose is right. That explanation was that, when he turned to the specific charges in his instructions, the Judge began with the murder counts. In that context, he dealt with provocation, being the defence unique to those counts. Later in his instructions, the Judge addressed defence of another, making it clear that that defence applied to all charges. Despite dealing with the defences in that order, the Judge did tell the jury that they were free to address the defences in any order they chose: at [33].

[46]     We consider that there is no possibility that the jury might have been left in confusion as to the position, or that the defences were in some way undermined as a result of the order in which the Judge dealt with them.  In addition to his oral instructions, the Judge distributed a 22 page handout to the jury summarising the ingredients of the offences charged (by way of providing explanation and identifying questions to be answered) and outlining the requirements of the defences of provocation and defence of another (following the same format).  The “defence of another” section occupied five pages, and no complaint is made about the substance of what is contained there (or about what the Judge said on this topic in his oral instructions).

[47]     Quite apart from this, it is difficult to see how “defence of another” could have succeeded in this case.  Section 48 of the Crimes Act requires that the force used be reasonable in the circumstances as the offender believed them to be.  While the “circumstances” element is to be assessed subjectively, what is “reasonable” is to be assessed objectively: R v Wang [1990] 2 NZLR 529 at 534 (CA). It is difficult to see how the appellant’s response to the threat that he perceived Mr De Graaff to be facing could be characterised as “reasonable”. Further, as we discuss in more detail in the context of provocation (at [65] – [69] below), the appellant faced the difficulty that rather than attempting to defend Mr De Graaff against his assailants, he was attempting to create a distraction by driving at others.

[48]     We reject this ground of appeal.

Provocation

[49]     Mr King presented the argument for the appellant on this issue.  He identified eight separate heads of complaint.  One was based on the fact that the Judge had directed on the partial defence of provocation before directing on “defence of another”.  We have already addressed this.  As to the remainder, several are interrelated, so that they can conveniently be grouped under four headings:

(a)       Confusion about the onus and standard of proof.

(b)Threshold set too high.

(c)Wrong approach to the evaluative assessment.

(d)Correction of mistakes created confusion.

[50]     Before we consider these issues, however, we should address what we consider to be the critical point on this aspect of the case, namely the application of the accident limb of s 169(6).

Section 169(6) – killing someone other than the provoker by accident

[51]     Section 169(6) provides:

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

(Emphasis added.)

[52]     On the completion of the Crown case (on 21 September 2007), the appellant’s counsel advised, for the first time, that the appellant intended to rely on provocation.  The Judge issued a minute, in which he said:

[3]       … There would appear to be no evidential basis for an argument that Ms Melissa Viall or Mr Kane Wright, the two persons killed, did or said anything to [the appellant] which could amount to provocation.

[4]       It may, however, be the case that [the appellant] and counsel are relying on two possible glosses on that situation.  If so, the position needs to be clarified before the trial re-commences because of its possible effect on the conduct of the balance of the trial including final addresses and the summing-up.

[5]       The first possibility may be that [the appellant] wishes to argue that, under provocation given by one or more of those in the area – not [the victims] or their accompanying groups – he killed Ms Viall and Mr Wright by accident or mistake.  That possibility has not so far been raised by counsel, but if [the appellant] intends to seek to rely on that approach, the Court and other counsel need to be advised.

[6]       The other possibility may be that [the appellant] will seek to argue that Ms Viall and Mr Wright were parties to the provocative conduct and present when the provocation was given (R v Turaki [2005] 3 NZLR 329, 351 para [76]) but again, if this is the approach on which [the appellant] intends to rely, the Court and other counsel should be made aware of that.

[53]     The Judge then directed a chambers hearing with counsel and the appellant on 24 September 2007. 

[54] There appears to be no minute of the chambers hearing, and we have not been able to obtain copies of counsel’s closing addresses as they were not recorded. However, it seems plain from the material before us that the appellant’s counsel advised the Judge that it was the first possibility that was being raised, rather than the second (ie, the possibility identified in [5] rather than that in [6] at [52] above).

[55]     This is clear from the Judge’s written handout to the jury.  The Judge reproduced s 169(1), (2) and (6) and then said:

In this case [the appellant’s] defence does not contend that either of the deceased was killed under provocation by “mistake”: in opening, Mr Gotlieb said that it was the “defence case that the death of Mr Wright was the result of [the appellant] acting in the defence of his friend, Anton De Graaff, and that the death of Ms Viall was accidental” but he suggested that both deaths were accidentally caused while [the appellant] was under provocation.

Provocation may be “anything done or said”.  In most cases that relates to things done or said by the deceased or by persons with whom they are so closely associated that they are identified with those persons.

That is not the case here.  It is not suggested that there is evidence that Mr Wright or Ms Viall or either of their groups of associates did or said anything that might amount to provocation to [the appellant].

Here, it is said that the actions of other persons in the carpark, during the passage through the Caltex forecourt and on the Pakuranga Highway, together with the words they uttered, amounted to provocation.

[56]     The Judge then identified a number of points for the jury to consider and said:

Finally, if all those steps have been determined in [the appellant’s] favour, it is for you to decide whether, acting under provocation by the group, he killed, first, Mr Wright and, secondly, Ms Viall, by accident.

In his summary the Judge again talked of provocation from “the group on the highway other than the groups with which Mr Wright and Ms Viall were associated” and whether the victims were killed by accident.

[57] The Judge reiterated this approach in his oral instructions to the jury. He explained to the jury that he had included s 169(6) in the handout “because of the circumstances of this case”: at [44]. He then stated the defence theory of the case in similar, albeit not identical, terms to the written handout: see [47] – [48] and [57] –[58] for the relevant passages. The Judge identified the evidence concerning the various groups involved: at [96].

[58]     During the course of their deliberations, the jury asked several questions in relation to provocation.  For present purposes the following is important:

With regards to provocation, should we consider that [the appellant] was acting under provocation if in intending to hit “the provocative group”, he accidentally hit and killed Mr Wright, and consequently Ms Viall (the definition suggested by Mr Perkins)?  OR does he not have to be intending to hit “the provocative group”?  Can he simply be provoked and then, in this state, hit and killed Mr Wright and Ms Viall by accident?

[59]     In the course of his answer the Judge said:

[2]       To answer that, the first stage is that before you even get to consider provocation you must be satisfied that the Prosecution has proved that one or other or both of the limbs for murder.  So you must have reached a view that the one version of elements of murder or the other or both have been proved.  And I say at the foot of page 7 [of your handout] and the top of page 8.

[3]       So, if you have got to that point, under section 169 subsection (6) provocation in this case was by the group, the Botany group, and accordingly what I think is the answer to the nub of your question is that what the Prosecution must show is that under the provocation from that group and therefore with the elements of ‘murder’ satisfied, he must have intended to kill or be reckless etc, as regards one or more of the provocative group that, by accident, killed firstly Mr Wright and, secondly, Ms Viall.  I think that is the essence of what you are trying to say.

[4]       The elements of ‘murder’ must be satisfied, he must have been provoked by the provocative group, in the state of being provoked by the group and thus with the elements of ‘murder’ being satisfied he must have intended to murder one of the group but by accident killed Mr Wright and Ms Viall.  Does that cover it? …

[60]     Later, the following day, the jury asked a further question.  It was as follows:

Does [the appellant] have to specifically aim at the provocative group and by accident hit someone who isn’t part of the provocative group for it to be provocation?  Or does he just have to be reacting to the provocation and hit someone who isn’t part of the provocative group?

[61]     The Judge commenced his answer by reminding the jury that there was no onus on the accused to demonstrate anything.  Rather, the onus was on the prosecution to exclude provocation.  The Judge went on to say:

[8]       Provocation again is anything done or said by the group which was sufficient to produce such a reaction in [the appellant] that he lost the power of self control.  And whilst he had lost the power of self control and whilst he was intending to kill someone from the provocative group or intending to cause grievous bodily harm to someone from the provocative group, by mistake (see paras [17] and [18]) he killed by accident Kane Wright and/or he killed by accident Melissa Viall.

[9]       You could put it like this.  When driving his car on each of the passes – and remember you have to look at them separately – you have to say the Prosecution has proved that he was intending to murder (within one or other of those definitions) but that, because of the words or actions of the provocative group he lost his power to control his own actions and, by mistake, instead of murdering one of the provocative group, he murdered Kane Wright or he murdered Melissa Viall.

[62]     Before the jury retired on this occasion, Mr Perkins for the Crown drew the Judge’s attention to the fact that he had used the word “mistake”, rather than “accident”.  The Judge agreed that he meant “accident”.

[63]     As can be seen, the Judge dealt with the defence of provocation throughout on the basis that the accident limb of s 169(6) was at issue (as opposed to a contention that the deceased were part of the provoking group, as in R v Turaki [2005] 3 NZLR 329 (CA), especially at [76] – [80]). There is no indication that the appellant’s trial counsel suggested at any stage that the Judge had misunderstood the defence position.

[64]     In his submissions in reply, Mr King suggested that there was a basis in the appellant’s video interview for the Turaki approach (i.e., that the appellant regarded all the people on the road as part of, or associated with, the attacking group).  However, as we have said, trial counsel expressly disavowed that approach, presumably on the basis of their assessment of what the evidence would support.  They did not seek to correct the Judge when he noted that there was no evidence that that the deceased or either of their groups of associates were involved in the provocation and put the defence to the jury on the s 169(6) “accident” basis.  Both of the appellant’s trial counsel are very experienced criminal lawyers, and there has been no suggestion that they acted contrary to instructions or incompetently in this respect.

[65]     Focussing then on the accident limb of s 169(6), Mr King’s submission was that, if the jury accepted that the group attacking Mr De Graaff had provoked the appellant into losing self-control, the deaths of the deceased could properly be classified as killings “by accident or mistake” within the meaning of s 169(6).  He said that the focus in provocation cases had moved from attribution of fault to the mental state of the accused.  If, as a result of provocation, the accused has no power of self-control, any death caused by the accused while in that state must be provoked.  Mr King relied on R v Timoti [2006] 1 NZLR 323 (SC) for this submission.

[66]     In our view, the Supreme Court’s decision in Timoti does not go that far.  The Court explained the purpose of s 169(6) in the following terms:

[19]     It is important to note that whenever provocation is invoked the act of homicide … must have been induced by the provocation.  In an accident or mistake case that retaliatory act is aimed at, or at least thought to be aimed at, the person giving the provocation, but actually causes the death of some other person in circumstances amounting to murder.  It is the dissonance between the target or intended target of the act of homicide and the ultimate victim with which s 169(6) is concerned.

and later (at [26]):

The concepts of accident and mistake were introduced into s 169(6) for the … purpose of dealing with cases where someone other than the person giving provocation was killed.  While the provoker is the target of the offender’s actions, another person suffers the consequences.

(Emphasis added.)

[67]     The difficulty for the appellant in the present case is that he did not accidentally kill the deceased while attempting to kill one of the provoking group (i.e., the group assaulting Mr De Graaff).  Rather, in his video interview the appellant acknowledged that he was attempting to avoid the people who were assaulting Mr De Graaff (presumably because of the obvious risk that running into that group would have posed to Mr De Graaff).  The appellant was aware that the provoking group was off to one side on an island in the middle of the road.  Rather than hitting that group, the appellant was trying, as he put it, to “cause a distraction” so as to get the attackers away from Mr De Graaff.

[68]     In the result, then, we consider that the defence of provocation must inevitably have failed.  The appellant drove through the people on the road knowing that they were not part of the provoking group.  The factual narrative did not support the accident limb of s 169(6).  It follows that we reject the approach to s 169(6) that Mr King advanced.

[69]     This conclusion is sufficient to deal with this aspect of the case.  As the factual narrative did not support the application of the accident limb of s 169(6), there was no miscarriage of justice in the jury’s rejection of the partial defence.  This remains the position even if there is substance to other criticisms of the Judge’s instructions in respect of provocation: see R v Matenga [2009] NZSC 18. For the sake of completeness, we will briefly address those other points.

Onus and standard of proof

[70]      Mr King submitted that the jury was left with a confusing picture as to the onus and standard of proof as a result of the Judge’s directions, with the result that the jury might have been led to believe that there was an onus on the defence to prove provocation.  He referred to several passages in the summing up which, he submitted, might have led the jury to misunderstand the position as to the burden.

[71]     We reject this ground.  (In fairness to Mr King, we record that he acknowledged that this ground could not succeed on a stand-alone basis but was another feature of what he described as a confusing picture overall.)  We do so because the Judge stated on numerous occasions that the Crown had to negative provocation.  This is made clear in the written handout, in the Judge’s oral instructions and in the Judge’s answers to the jury’s questions.  We see no prospect that the jury might have misunderstood where the burden lay.

Threshold set too high

[72]     Mr King submitted that the Judge wrongly drew a distinction between the concept of “loss of self control” and the concept of “loss of the power of self control”.  As a consequence, the threshold which the Judge said had to be met was too high.  In particular, the Judge implied that a state akin to automatism was necessary.

[73]     In the written handout, the Judge said the following:

It is a matter for you, but it may be helpful for you to start by inquiring whether what the defence argues were provocative acts or conduct did in fact provoke [the appellant] into killing [the victims].  To follow the language of subs (2)(b) and to reverse the order of the subsection, the question is, first, whether as a matter of fact the Prosecution had proved beyond reasonable doubt that [the appellant] did not lose his power of self-control in killing either or both of the deceased.   Because there was an interval of time, albeit brief, between [the appellant’s] two runs through the crowd, you need to consider separately whether it had been proved that Mr Gardner did not lose the power of self-control in relation, [to the victims].

In this regard, you must bear in mind the section speaks of an accused being deprived not just of self-control but of the power of self-control.  A person is not deprived of the power of self-control simply because he or she is angry or incensed or disgusted by what has occurred or wants to retaliate or anything similar.  Loss of the power of self-control entails a good deal more.  It entails considering whether [the appellant] was in a temporary state where his power of self-control was absent.  Provocation can only apply where self-control has been lost and the homicide has been committed in what other cases call “hot blood”, or while an accused is “still in the throes of passion”, or whilst an accused is not, for the moment, master of his or her own mind.  In more colloquial terms, “temporarily off his head” may convey the idea.  The point is that the provocation must have led to [the appellant] temporarily losing the mental power to control his actions.

If on your view of the facts the Prosecution has shown beyond reasonable doubt that, what you find was the provocation, it did not result in Mr Gardner losing the power of self-control as just described in relation to either or both deceased, then the defence is excluded and you need consider provocation no further.

(Emphasis in original.)

The Judge repeated this in his oral instructions to the jury: at [52] – [54]. 

[74]     During their deliberations the jury asked the following question:

Could you please give us more guidance on “the loss of power of self-control”?  Can a person still reason if they have “lost the power of self-control”?

The Judge gave the following response:

[12]     I do not think I can go much further in helping you than to refer you back to the handout, particularly on page 9 and in particular the second major paragraph where I made clear to you that what is required is not just loss of self-control but loss of power of self-control.  And perhaps to encapsulate it as comprehensively as I can, in the last sentence in that paragraph, I say the point is that the provocation must have led [the appellant] to temporarily lose the mental power to control his actions, and you may have made a note – I elaborated on that when I was summing up to you – he must have lost the capacity, he must have lost the ability, he must have lost the mental power to be able to control what he was doing.

[13]     Now of course he was continuing to do things, he was continuing to act, he was continuing to drive the car.  But provocation is encapsulated on the basis that he was unable to control his actions, there was no mind directing what he was doing.  He lost that power.

[14]     I hope that is of some assistance to you.  Does it seem to help?  If not, please retire to the jury room, re-formulate your question and I will do what I can to help you.  But remember on the second question, loss of the power of self-control is much more than loss of self-control.  There has to be, because of the provocation, there has to be no mind still able to direct him in doing what he was doing.  And remember, always, it is for the Prosecution to disprove provocation.  So they have to show there was no loss of the power of self-control.

[75]     It seems that in distinguishing between “loss of self-control” and “loss of the power of self-control” in the way that he did the Judge was attempting to emphasise that simply because a person became angry that did not mean that he or she was provoked.  However, we agree with Mr King that there is a material risk that the jury misunderstood what was required. 

[76]     First, the cases use the terms “loss of self-control” and “loss of the power of self-control” interchangeably: see, for example, R v McGregor [1962] NZLR 1069 (CA), especially at 1078 – 9. Clearly, if a person has lost self-control, the partial defence of provocation is available. Contrary to what the Judge said, loss of the power of self-control is not “much more than loss of self-control”.

[77]     Second, we acknowledge that the Judge was attempting to assist the jury by expressing in a variety of ways what it means to lose the power of self-control.  But as the Supreme Court said in R v Rajamani [2008] 1 NZLR 723 at [16], this is a potentially hazardous exercise. We accept Mr King’s submission that there is a risk that the jury might have considered that a state akin to automatism was required. For example, we are concerned at the juxtaposition in [13] of the extract quoted at [74] above of the observation that the appellant was continuing to act and drive the car with the requirement that there was no mind directing what the appellant was doing. That may have led the jury to the view that because he was driving and was aware of what he was doing, the appellant could not have been provoked. Mr Perkins said that the Crown had accepted in its closing address that the fact that the appellant was driving did not mean that provocation was not available. But the jury clearly had some difficulty with this given its question, and we consider that the Judge should have made it clear in the answer that the fact that the appellant was driving did not rule out the possibility of provocation. We consider that the jury may have had the impression that a state akin to automatism was required: see R v Richens (1994) 98 Cr App R 43 (CA, Crim Div), at 49.

[78] However, as we said at [69] above, this has not produced a miscarriage of justice in this case.

Evaluative assessment

[79]     Mr King submitted that Hugh Williams J had inappropriately “personalised” what the Supreme Court described in Timoti at [33] as the “evaluative question”, that is, whether the provocation was sufficient to deprive an ordinary person having the accused characteristics, if relevant, of the power of self control. He submitted that the Judge did so by inviting the jury to make an assessment from their viewpoint. He was referring to the following passage in the Judge’s oral instructions to the jury:

[56]     However, if you conclude that the prosecution has not reached that situation or there is a reasonable possibility that it was the provocation which caused [the appellant] to kill first Kane Wright and secondly Melissa Viall then the third question you need to decide in terms of subsection (2)(a) is whether in the circumstances of this case the provocation by the group was sufficient to deprive a person having the power of self-control of an ordinary person of that power.  That is to be considered from the viewpoint of the ordinary New Zealander, you folk if you like.  The question is whether the provocation by the group was sufficient to deprive an ordinary New Zealander in those situations of the power of self-control as that phrase is defined.  Again, if you find the prosecution has proved beyond reasonable doubt that the ordinary New Zealander in [the appellant’s] position would not have been deprived of the power of self-control by the provocation from the group, the defence will have been excluded.

(Emphasis added.)

[80]     Mr King submitted that the use of the italicised words created a risk that the jurors would ask themselves the question “Would I have killed in these circumstances?” (to which the answer would inevitably be “No”) rather than approaching the test on an objective basis.  But the jury handout and the summing up were appropriately framed in terms of the ordinary New Zealander, with the exception of the single reference to “you folk if you like”.  The Judge did not dwell on this expression or attempt to build on it in the summing up in some way.  Consequently, we see no risk that the jury might have been deflected from its proper task at this point.

[81]     Mr King also submitted that the Judge had erred in the way he instructed the jury as to the standard of proof in relation to the evaluative assessment. He said that the Judge should have directed the jury that the evaluative assessment should be resolved in the appellant’s favour if there existed nothing more than a reasonable possibility that an ordinary New Zealander could have been deprived of self-control in the circumstances that the appellant found himself in. Again, we see no force in this point, given the Judge’s instructions as a whole. 

Corrections

[82] Mr King submitted that a confusing picture emerged as to provocation as a result of the fact that the Judge had to make several corrections to his directions (see, for example, [62] above). While he accepted that this could not have resulted in a miscarriage of justice, Mr King said that it “added to an already unhappy situation”.

[83]     We agree with Mr King that the corrections did not produce a miscarriage of justice. 

Sentence appeal

[84]     The appellant accepted that the Judge was entitled to find that s 104 of the Sentencing Act 2004 required that the appellant be sentenced to life imprisonment with a MPI of 17 years.  His complaint was with the 18 years six months MPI which the Judge imposed. 

[85]     The appellant said that, while the Judge was entitled to start at a figure of 18 years six months, he was obliged to reduce it to recognise the circumstances of the deaths.  Even though the jury had rejected provocation and defence of another, the events giving rise to the offending had elements of both defences to them.  This, the appellant submitted, should have been taken into account on sentencing: Taueki [2005] 3 NZLR 372 at [32] (CA); R v Moengaroa [2007] NZCA 425 at [17] and R v Maikuku [2008] NZCA 552 at [13].

[86]      The cases cited deal with charges of injuring or wounding with intent to cause grievous bodily harm, to which provocation is not a defence.  Here the defences of provocation and defence of another were rejected by the jury.  The features identified by the Judge in his sentencing notes when fixing the 18 years six month period were:

(a)The use of the car to inflict the deaths. The Judge viewed this as involving the use of a “lethal weapon”: at [120].

(b)The fact that two persons were killed and two seriously injured, and that the victims’ family and friends had suffered deeply as a consequence: at [121].

(c)The murders occurred in the context of other serious offending: at [122].

(d)The fact that by the time of the second pass the appellant was aware of the damage he had done on the first pass: at [123].

(e)The appellant’s awareness that only a small number of people were involved on the assault on Mr De Graaff – most were “innocent bystanders” – and absence of remorse at the time: at [125].

[87]     In R v Cui CA333/05 28 September 2006 at [113] – [117] this Court reviewed MPIs imposed in double homicide cases.  In the cases discussed, MPIs of 20 or more years were imposed.  In Cui itself (also a double homicide case), the Court described the Judge as having been “if anything, … lenient” in imposing a MPI of 19 years: at [120]. The sentence imposed by Hugh Williams J in this case was clearly one that was available to him.

Decision

[88]     Accordingly, the appeal against conviction and sentence is dismissed.

Solicitors:

Crown Law Office, Wellington