R v Hallett
[2013] NZHC 1077
•14 May 2013
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2011-063-005475 [2013] NZHC 1077
THE QUEEN
v
MENZIES REGINALD JOHN HALLETT
Hearing: 22-24, 26 and 29-30 April 2013
Counsel: A F Pilditch and A J Gordon for the Crown
P G Mabey QC for the Accused
Judgment: 30 April 2013
Reasons: 14 May 2013
REASONS JUDGMENT OF DUFFY J
[Re Availability of Partial Defence of Provocation]
This judgment was delivered by Justice Duffy on 14 May 2013 at 2.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: P G Mabey QC P O Box 13199 Tauranga 13199 (DX HP40075) for the
Accused
Solicitors: Gordon Pilditch P O Box 740 Rotorua 3040 for the Crown
R v HALLETT HC ROT CRI-2011-063-005475 [30 April 2013]
[1] The accused, Menzies Hallett, was on trial for the murder of Rodney Tahu. After the close of the Crown’s case, the defence elected not to call evidence. I then heard argument from counsel regarding whether or not there was a proper foundation for the partial defence of provocation to be put to the jury. This partial defence, which would have been available to Mr Hallett in 1979, remained available to him, despite its repeal in December 2009.
[2] I found that provocation should not be put to the jury. Counsel agreed that the reasons for the finding could be provided later. I now do so.
Facts
[3] The Crown’s evidence of the circumstances surrounding Mr Tahu’s death can be found primarily in the evidence of Mrs Sharpe. She is the former wife of Mr Hallett, and he gave her an account of the shooting of Mr Tahu approximately five hours after it occurred. Shortly thereafter she related this account to the Police. There is also evidence from other witnesses, who were close to the scene of the shooting, which is consistent with parts of Mrs Sharpe’s evidence, thus showing that she could only have learned of the events she describes from someone who was present when Mr Tahu was shot. Furthermore, her evidence of how Mr Tahu came to die was largely unchallenged by Mr Hallett.
[4] Mr Tahu worked as a service station attendant at a service station in Turangi. The station usually closed at 1.00 am. At approximately 1.03 am on 16 August 1979, Mr Tahu had closed up, set the burglar alarm and was in his motor vehicle preparing to leave the station when Mr Hallett arrived. His vehicle had developed a knock in the engine and so he wanted to purchase oil for it.
[5] Mr Hallett was angry and upset, as a result of a dispute with his former wife over the custody arrangements of their teenage daughters. He was driving south either to see Mrs Hallett, or his elder daughter, who had said she wanted to live with her mother. He was not in a good frame of mind; he had consumed a fair amount of alcohol; and he had a loaded hand-gun in his possession. He had already fired it twice earlier in the evening.
[6] When Mr Hallett realised the station was closed, he asked Mr Tahu to open it up in order to sell Mr Hallett some engine oil. Mr Tahu refused to do so. Mr Hallett called Mr Tahu, who was Maori, a “black bastard”. Mr Tahu took two steps towards Mr Hallett. He drew his hand-gun and fired, missing Mr Tahu. Mr Tahu turned and ran away from Mr Hallett. Mr Hallett followed Mr Tahu and from a range of about one metre, he fired another shot, which hit Mr Tahu in the shoulder. Mr Tahu fell down and at about that time called out “help, help”. Mr Hallett went up to Mr Tahu and shot him in the head while he was lying on the ground. Mr Hallett then left the service station in his motor vehicle.
Legislation
[7] Section 169 of the Crimes Act 1961 (now repealed) provided:
169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if—
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self- control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
(5) No one shall be held to give provocation to another by ... or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
(6) This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under
provocation given by one person, by accident or mistake killed another person.
…
[8] Under s 169(3), before the factual question of whether an accused had been provoked could be put to a jury, the Court had to decide first if there was any evidence of provocation. Section 169(6) made it clear that the provocation either had to come from the person killed, or the provocation from one person had to cause the accused to accidentally or mistakenly kill another person.
Discussion
[9] There is no evidence to suggest that Mr Tahu was killed as a result of a mistake or accident arising from another person’s provocation. Counsel were agreed that when the Court came to assess whether there was any evidence of provocation to go to the jury, the focus of the assessment was on Mr Tahu’s conduct, and that Mr Hallett’s state of mind as a result of the dispute with his daughter and former wife are irrelevant to the assessment under s 169(3).
[10] Counsel were also agreed that when it came to assessing the characteristics of Mr Hallett, the assessment was to be made on the basis of the characteristics of an ordinary New Zealander, and that there was no evidence to identify him as having some peculiar or special characteristic that was to be taken into account as part of the assessment.
[11] In Hieatt v The Queen [2011] NZCA 637, the Court of Appeal approved the approach taken by Priestley J in the High Court on the question of the test to be applied under s 169(3). In the High Court, Priestley J put the test this way:
[14] So bundling these matters together I need to scrutinise, in assessing the s 169(3) question of law, whether there is a plausible narrative reasonably capable of leading the jury to find it a reasonable possibility that the accused Mr Hieatt, as a result of words or actions emanating from the deceased which were sufficient to deprive the ordinary New Zealander of the power of self-control, was in fact deprived of his power of self-control and thereby induced to murder the deceased.
[15] I have deliberately omitted reference to the characteristics of the accused because no such special characteristics were advanced, and I am satisfied that no such characteristics arise from the evidence.
I considered the approach taken by Priestley J was directly applicable here, and so I
followed it.
[12] The first question was to determine whether the actions or words that emanated from Mr Tahu on the night of the incident were sufficient to deprive an ordinary New Zealander of the power of self-control to the point where he or she would have fired shots from a hand-gun at Mr Tahu: one wounding him on the shoulder; the other being a fatal shot to the head. If the answer to that question was unfavourable for Mr Hallett, I did not need to go further.
[13] I found it impossible to imagine any ordinary New Zealander who was met with the circumstances confronting Mr Hallett, acting in the way that the Crown’s evidence portrayed. Consequently, I was satisfied that there was no evidence whatsoever of provocation and, therefore, in terms of s 169(3), I was satisfied that the partial defence of provocation should not be put to the jury.
[14] The Crown’s case was that the shot to Mr Tahu’s head was fired last. I considered whether a change in the order of the wounding shots might affect my assessment. However, I considered that even if it was open to see the fatal shot to the head as being the first shot and the shot to the shoulder the second shot, that could have no effect on the outcome of my assessment under s 169(3). In my view, faced with the conduct of Mr Tahu that night, no ordinary New Zealander would resort to firing shots in the vicinity of Mr Tahu, let alone at him.
Duffy J
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