R v La Roche CA200/04
[2005] NZCA 362
•13 September 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA200/04
THE QUEEN
v
JOHN HAROLD LA ROCHE
Hearing: 27 July 2005
Court: Glazebrook, Chambers and O'Regan JJ Counsel: R M Lithgow for Appellant
M D Downs for Crown
Judgment: 13 September 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1] The legislation [6] The evidence [7] Background [7]
The stabbing [9] The aftermath of the stabbing [15] Evidence of murderous thoughts [22] Mr La Roche’s mental state [24]
R V LA ROCHE CA CA200/04 13 September 2005
Mr La Roche’s diary [25] Mr La Roche’s video statement [26] Mr La Roche’s affidavit [37] Submissions for Mr La Roche [39] Submissions for the Crown [46] Discussion [51] Result [61]
Introduction
[1] In December 1998, Mr La Roche was convicted of the murder of his ex de facto partner, Mrs Margaret Bennellick, after a jury trial in the High Court, Palmerston North Registry.
[2] This is a rehearing of his appeal, his first appeal having been dealt with on the papers in accordance with the procedure dealt with in R v Taito [2003] 3 NZLR
577.
[3] Mr La Roche’s trial was run on the basis of lack of murderous intent, although no evidence or witnesses were called on Mr La Roche’s behalf. The ground of appeal advanced is that the partial defence of provocation should have been left to the jury.
[4] The first issue for this appeal therefore is whether a credible narrative of causative provocation was present on the evidence. Collateral to this issue is the question of whether, in light of s 169(5) of the Crimes Act 1961, frustration stemming from “the process of the Court” can amount to provocation. A further issue raised by the Crown is whether Mr La Roche should be allowed to raise the issue of provocation for the first time on appeal.
[5] Mr La Roche’s current Notice of Appeal also advanced the ground that a change in Mr La Roche’s antidepressant medication close to the time of the murder affected his mental state to the extent that “insanity or provocation should have been advanced”. This ground was not advanced before us and thus we say no more about it.
The legislation
[6] The partial defence of provocation is contained in s 169 of the Crimes Act which provides as follows:
169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if—
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
(5) No one shall be held to give provocation to another by lawfully exercising any power conferred by law, or by doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person.
(6) This section shall apply in any case where the provocation was given by the person killed, and also in any case where the offender, under provocation given by one person, by accident or mistake killed another person.
(7) The fact that by virtue of this section one party to a homicide has not been or is not liable to be convicted of murder shall not affect the question whether the homicide amounted to murder in the case of any other party to it.
The evidence
Background
[7] Mr La Roche killed Mrs Bennellick in the waiting room of the Palmerston
North Family Court on 17 July 1998. Mr La Roche had had, until five or six years
prior to the killing, a de facto relationship with Mrs Bennellick of an intermittent kind. They had three children but Mr La Roche said, in his video interview with the police, that he suspected that one of them was not actually his child. Mr La Roche also said that he had not wanted to marry Mrs Bennellick because she had difficulty managing a household and money and that, once they had separated, each of them had married someone else.
[8] At the time of the stabbing, the children were in the custody of Mrs Bennellick but they were also under the supervision of the Children and Young Persons Service as wards of court. Mr La Roche had not had any access to his children for some years. Mr Bennellick, the former husband of the victim, gave evidence at trial about the incident that had resulted in Mr La Roche’s access to the children being stopped. He said that, over the 1992/1993 Christmas period, it had been arranged that the children would spend three weeks with Mr La Roche. The day before they were due to be returned, Mr La Roche rang up saying that the children would not be returned. The following day, Mr La Roche came round and broke into the bach where Mr and Mrs Bennellick were staying and punched Mrs Bennellick in the stomach. She was two months pregnant at the time. The children were found by the police and returned a couple of days later.
The stabbing
[9] On 17 July 1998, the day of the killing, there was a judicial conference to deal with the annual review of the wardship orders and the setting of a timetable to progress Mr La Roche’s application for a resumption of access. Mr La Roche and Mrs Bennellick were not part of that conference but both had come to Court. Before going to the Judge’s Chambers for the conference, Mr La Roche’s lawyer, Mr McGhie, had told him something about what was to happen that day. Mr La Roche was obviously upset and it appears he may have thought wrongly that his application for resumed access was to be heard that day. Mr McGhie said in evidence that Mr La Roche did not seem to take in what he had been told. He had been arguing with his son and was emotional and upset. Mr McGhie asked him to remain nearby in case he needed to talk to him again.
[10] After Mr McGhie had returned to the Judge’s Chambers, Mr La Roche said that he was going for a walk. He then walked to his son’s house nearby, took two knives and returned to the courthouse.
[11] Mr Aaron La Roche (Mr La Roche’s son from a previous marriage) remained in the waiting room speaking to one of his father’s friends, Mr Hui Zhao, who had come to Court to support Mr La Roche. Aaron gave the following evidence of what happened on Mr La Roche’s return:
So how long would you say that your father had been away for? 15 minutes give or take a few minutes.
And did you and Hui that’s your father’s friend, talk or chat to your father? When dad came back into the room there was something about, Hui said have you got two hats John? Because he saw dad with one hat on and one on the seat. I think dad acknowledged with a nod. Then I think he said don’t talk to me at the moment Hui.
Your father said that? Yes
What did Hui say? He said are you a bit depressed John or something along those lines.
Your father’s response if any? I don’t think he responded verbally but he may have nodded his head.
What happened then, step by step? My father walked through the doorway towards the hearing rooms, into another waiting area. And there were a few people in that room, he walked towards Margaret who was basically in that room and raised his hand above his head and brought it down, it looked like he had hit Margaret with his fist.
And at that time, I started going through the doorway. And I think about that time I saw a knife drop to the ground, or it looked like a knife.
[12] Aaron then described a second attack on Mrs Bennellick by his father and seeing two bent knives on the floor. Mr Hui Zhao’s evidence was that he had been talking to Aaron when Mr La Roche came in, greeted him briefly and then went into another room. They heard a scream and went to see what had happened. He saw Mrs Bennellick on the floor covered in blood. He said Mr La Roche “was there rocking and rocking like a person when he was drunk. Rocking side by side.” Mr Zhao then left to go outside as he was so scared. He next saw Mr La Roche with a policeman, handcuffed. Mr La Roche said sorry to him several times.
[13] Another witness, who was at the court for another matter, was in the same room when Mrs Bennellick was first stabbed. She described that stabbing. The witness said that she had sent her son to get help and had asked Mr La Roche whether he was some sort of maniac. He replied “its what she’s done to my kids.” The witness then described sitting by Mrs Bennellick who was on the ground and Mr La Roche coming back to try and stab her again.
[14] Mr La Roche was interviewed on video by police shortly after the stabbing where he gave his version of events. That interview was introduced as evidence at trial and is described in more detail below.
The aftermath of the stabbing
[15] There were a number of witnesses to Mr La Roche’s demeanour after the stabbing. Ms Lacy, the children’s social worker, had been in the Judge’s chambers at the time of the killing. She described how the hearing had been interrupted by the Deputy Registrar. They had all rushed downstairs and she saw Mrs Bennellick with blood all over her chest and either dead or dying. She looked through the glass partition and Mr La Roche was standing there talking to somebody “and he looked really really calm”.
[16] Evidence was also given at trial by various members of the police who dealt with Mr La Roche after the stabbing. Constable Ross was called to the courthouse just after the stabbing. He and Constable Nicholson had entered the courthouse at the same time and they had seen a number of people sitting in a waiting room. He said:
And how did the accused appear to you, what was he doing what was his manner? As I walked through the waiting area, I looked to the people to my right, who were sitting in that area there (in the second bay of seats from the main entrance in waiting room 2?) Yes
I looked to my right, the defendant said to me you are looking for me I did it. I said what. Again he said you are looking for me I did it. He was in what appeared to be a very calm state, he was seated at the time.
How did you respond to what he said to you? I was unsure as to what he was telling me he had done. I said to Constable Nicholson grab that guy.
[17] Constable Nicholson’s evidence as to Mr La Roche’s manner and words while he was at the courthouse was as follows:
And how was he, how did he appear to us what was his manner? He was bent forward and he had placed his head into his hands. …
The accused looked up and said I done it I done it. …
As you were writing in your notebook did the accused say anything else to you? Yes he did.
What was that? He told me that he should have killed one of you guys. Who did you take him to mean by you guys? The police.
Did the accused say why he should have killed one of the police? No he didn’t. …
[18] Sergeant Taylor arrived at the courthouse after Constables Ross and
Nicholson. His evidence as to Mr La Roche’s demeanour was:
Could you tell the court how the accused appeared to you? He appeared somewhat distraught and I could see the whites of his eyes clearly. …
From that time on I obtained my handcuffs and secured the accused’s hands behind his back and at the time I applied the handcuffs, and at numerous times there from he said to me someone has to do something because she’s not looking after my kids properly. …
… the accused at that time asked me what my name was. I said that it was
Stuart Taylor. He asked me how long I had been in the police. And I said
10 years. He then said to me that he had to do something because she wasn’t looking after his kids properly, and he also said sometimes you guys have to
let people swear at you and not react. And at that point he had quite a lot of
mucus dripping off the end of his nose. I retrieved his hankerchief from his pocket and assisted him to blow his nose. …
[19] Detective Senior Sergeant Lyons came to the courthouse to escort Mr La Roche out of the building. While they were waiting to be transported to the police station, Mr La Roche said:
… you bastards, no-one would help me, you took my children, she took my children.
[20] Detective Lyons explained that he took Mr La Roche to a video interview room at the police station at about 1.05pm and Mr La Roche asked to speak to his lawyer. The interview was stopped so that this could be arranged. At about 1.50pm,
however, Detective Lyons returned to the interview room to inform Mr La Roche that Mrs Bennellick had died. Detective Lyons described Mr La Roche’s reaction in the following terms:
The accused broke down, was crying and he lay on the floor. After a short while he regained some composure and said, no-one tried to help her, no-one went to her to even try and help her. He asked me how she had died, I told him I did not know. He again said no-one helped her, I asked for help but no-one would.
[21] Constable Nicholson was detailed to sit with Mr La Roche in the video interview room while a lawyer was arranged. His evidence as to that was as follows:
And did you accompany Detective Lyons and the accused after you got to the police station? Yes I did.
Where did you go to? We went into the video interviewing room. I understand you removed the accused’s handcuffs? Yes
What did you do then when you got to the video room? I remained with the accused while Detective Senior Sergeant Lyons organised lawyers and doctors etc.
Did you ask the accused any questions while you were in the interview room with him? No I didn’t.
Did he make any comments? Yes …
I understand that the accused made a number of comments and that you wrote those down, Could you tell the Court one by one what those comments were?
The first comment made was nobody tried to protect her, nobody tried to protect her. He then said a Mrs Wakelin of Wanganui, she’ll need to know about this, she’s a friend of mine.
At 1.27 pm? I can’t believe I did that.
And to make this easy just continue on. There’s one I’m going to stop you? At 1.30pm he said when people want to talk to you let them talk to you. It’s your job don’t be offended at what they say.
Family Court has to stop being so secretive. They should be held accountable for what happens. I used to have a lot of respect of the police until about 5 years ago. I never hit a woman before. I never hit a man before. My psychiatrist is Dr Mahova. He is at Wanganui Pyschiatric Hospital. My GP’s name is Dr Procash. He is in Wanganui as well. The doctors did their best for me but it is not their job. Nobody hit me OK. Nobody grabbed me. I thought they would. At 1.38pm clothing was removed from the accused for examination purposes and possible exhibits.
At 1.45pm he said I hope she doesn’t die she was bleeding a lot. At 2pm I
recorded what clothing had been removed. …
Did you say anything else to you while you were in the room? At 2.03pm he said it wasn’t even her fault, who else can you attack. And 2.08pm he said they just let her lie down and bleed, they should have turned her over. I could have done that. She just laid there not moving. At 2.09pm he said the kids will be safe now, no-one will hurt them, they will be so happy, my family will get them now. Just stop there please. What did he say at
2.18pm, if anything? At 2.18pm if one police officer talked to me properly none of this would have happend, now its done. …
Evidence of murderous thoughts
[22] The Crown case at trial was that the killing was not impulsive but that Mr La Roche had long considered the possibility of killing Ms Bennellick. At trial, the Crown put in evidence numerous excerpts from Mr La Roche’s diary in the year leading up to the murder in which he expressed a desire to kill Mrs Bennellick. We set out a summary of the excerpts relied on at [25] below.
[23] There was other evidence given at trial of Mr La Roche’s state of mind before the killing. One witness, who had had a relationship with Mr La Roche for about 20 months before the killing, said that Mr La Roche was very nervous about the July Family Court hearing as he very much wanted to be able to see his children whom he idolised. She said that he was angry that he was not able to see his children and blamed Mrs Bennellick for that state of affairs. He had said that if the Family Court hearing did not go his way then “something could happen”. He did not say what. He did say, however, that, if Mrs Bennellick was out of the way, he might get custody of his children. He did not give any indication as to how she might be put out of the way but he told her that he wanted the truth to come out, even if he had to kill someone to make that happen. She did not take his comments seriously.
Mr La Roche’s mental state
[24] Dr Brinded is a psychiatrist who examined Mr La Roche on 25 November
1998. His conclusion was that Mr La Roche was not suffering from major
depression at the time of the stabbing. At trial, he gave evidence of what he had been told by Mr La Roche in the following terms:
Well he described at some length the distress that not seeing his children had caused him and overall described that during the intervening four years since
1994 that many of the things that he normally did in life had ceased, that he
felt he could no longer work as a nurse, and that his sole purpose in life had been to try to reverse the Family Court view that he should not see his children. He described at some length that basically his thoughts were constantly about his children during those 4 years. …
My own view of Mr La Roche’s mental state prior to the victim’s death and that view was shared by Mr La Roche in our interview was that there were no clear signs or symptons that suggested that he was suffering from major depression at the time. …
And to what extent was he able to give you at least in your mind a clear account of what had occurred, what detail was he able to give you? He was tearful and distressed during giving his account but that did not prevent him from giving what I believed a very clear and detailed account of the alleged offending.
Is it in contrast to the way he presented to you to the way he presented in the video interview? Probably the two main areas of contrast would be first his answers to me were probably a little more focussed and to the point than during the police interview. Although in my interview with me he was more distressed that in the police interview.
Mr La Roche’s diary
[25] Over a period of years Mr La Roche had kept personal diaries setting out his thoughts and feelings on a wide range of issues. Passages from the diary were read out by one of the police witnesses at trial and were relied upon by the Crown in the trial as showing the considered nature of the killing. The relevant passages were as follows:
(a) Monday 16 December 1996 “Haven’t felt able to write for a while.
A little depressed again. Homicidal thoughts returning.”
(b)Sometime after 24 October 1997 “Ideas of stabbing myself again or killing the small man. Can’t name him.”
(c) 2 December 1997 “Just walked into Ohakune. Passed within feet of
Diane Workman standing outside the supermarket. As I walked past
she said “why don’t you drop dead”. Sitting there with her was her mother selling raffle tickets or something I thought afterwards, I could have bought a knife and finished them both. Their children would have been freed of their evil influence and the resulting publicity could only bring out the truth eventually.”
(d)2 December 1997 “I know that I should kill your mother but I haven’t got the guts. My kids are gutless because I’m gutless.”
(e) Sometime after 6 December 1997 “I was with Therza in her car on Saturday. Passed Margaret and [C] and [D] [Mr La Roche’s children] in the roadway. They didn’t see me. I circled the block a couple of times. You’re so thin and unhappy. What can I do? I must leave Ohakune again or kill your mother. I must abandon you [C]. You must find your real father now. I will write to CYPS and tell them that I don’t want you back now.”
(f) Boxing Day 1997 “Still homicidal.”
(g) 24 March 1998 “No one will talk to me so I have to talk to strangers.
I told her how the Family Court was victimising me and you. And how no one will help because it is the Family Court. I said the only way I could get justice for us was to get it out of the Family Court. The easiest way being to kill Margaret. Then all the lies would be exposed. People speak well of you when you are dead or on trial.”
(h)2 April 1998 “Confronted Aaron about a few things today. He says he may be going to ChCh instead. Says he will try to see you kids this Easter. I told him I often feel like killing him because he doesn’t do enough to help.”
(i) Monday 22 June 1998 “Still having thoughts of killing, when awake at night.”
(j) Tuesday 23 June 1998 “Dilemma about what to do mainly about
17 July. If they give the kids back to Margaret, I ought to kill her to be sure they will be safe at last. But who will take them? Who will look after them? There’s nobody I can trust. And anyway I will be in jail. Nobody will care about my opinion. And the kids will be embarrassed.”
(k)Monday 29 June 1998 “Phoned McGhie today. He says he hears that Margaret is going to Wgtn to reconcile with Warren [Bennellick]. Apparently she already has you kids back. I should go and kill her now but I am becoming too selfish and comfortable.”
(l) Tuesday, 7 July 1998 7.30 pm “Went to Therza’s. Alright until one of her friends arrived and Therza wanted me to be sociable. I left without her knowing and walked back to the hospital. In depressed state thinking of knives and ropes again.”
Mr La Roche’s video statement
[26] Mr La Roche was interviewed on video in the presence of his lawyer shortly after the killing at about 4.00 pm. We set out the critical extracts from the transcript of that interview below. In those extracts, the interviewing detective is identified by the initials DL, Mr La Roche by the initials JL and his lawyer by the initials OW.
[27] Mr La Roche explained that some four years ago he had tried to get custody of his children. He had been going to raise them with his new wife but he had sent her to Australia a few weeks before the custody case and she did not come back for the hearing. He did not get custody of the children. He said on this subject:
Well it’s, it’s, it’s wrong to say that I had a custody battle with Margaret, I didn’t actually have a custody battle with Margaret as such, I had a custody battle with the Family Court. Because Margaret was never my adversary really, my adversary was the Family Court. They could have so easily sort of told Margaret and me to sort of reconcile, and we would have, Margaret would have, she always wanted to be married to me. You know she was always angry with me because I didn’t legally marry her. So I, I think that’s
one of the main reasons that she persevered in, in, in making this go so long was because she was angry because I didn’t marry her.
[28] Mr La Roche also explained that Mrs Bennellick’s eldest son had abused Mr La Roche’s daughter when she was 12 and then again about two years before, even though the son had been sent to Australia and was not supposed to have any contact with the other children. Mr La Roche said that he had found out about this abuse because he had been in court on another matter at the same time as the son.
[29] Turning to the day of the killing, Mr La Roche said that he had arrived at Court at 11.15am. His eldest son Aaron and Mr Zhao were to meet him there but, when he arrived, only Mrs Bennellick was present. He described their encounter thus:
DLQuarter past 11. When you arrived at the Court John, was Margaret already there?
JL Nobody was there. DL No one was there?
JL No one was there for a long time.
DL Ok, and just to get it right, where was the hearing to be held in the
Courthouse?
JL I don’t know, somewhere there, I don’t know. I had no idea. DL When you went into the Court, where did you go and wait?
JL There’s a waiting room there, there’s just the one main waiting room.
DL That’s downstairs is it?
JL Yeah, I was the only person there for quite a long time and then Bruce ANDREWS walked through I, I didn’t speak to him because, I’m pretty angry with Bruce ANDREWS.
DL He is the lawyer?
JL He’s supposed to be representing my children. He walked through and then Margaret walked into the room, which was a surprise to both of us I suppose, well it was certainly a surprise to me. And she sat down about 10 feet away from me and I said hello Margaret and she said hello John and then we didn’t, we didn’t speak, it was a bit embarrassing and then ah I think it was Bruce Andrews came in and took her away.
DL Was Margaret with anyone else John, or was she by herself?
JL No Margaret was alone, you see nobody supports Margaret either, ah nobody was supporting me and no one was supporting Margaret. That’s what so sad about it, you know.
[30] Mr La Roche explained that his son had then arrived and that his lawyer had arrived shortly after his son. He said:
DL After Margaret left with Bruce ANDREWS, what happened next?
JL My son arrived. I think he arrived a few minutes after 12.00 I was a bit angry about that, I think, I thought he should have arrived earlier you know.
DL What was his name John, or what is his name?
JL Aaron, Aaron LA ROCHE. And I had an argument with him on, I was really quite abusive to him because I, I always felt as though there was so much more that he could have done to help, so I was quite abusive to him.
DL He’s not a son to Margaret at all is he?
JL No he’s, he’s a son to my first wife, both my older son’s are son’s to my first wife. …
DL He arrived and what happened after that?
JL Well, we argued and then Mark McGEE [sic] arrived. DL He’s your solicitor from Ohakune?
JL Yeah I, I, I, I didn’t know whether he was going to arrive or not I didn’t know anything really. He um, it’s not his fault he was contacting my address in Wanganui and I’d left my address in Wanganui a couple of days before. Um, and ah, Mark and Aaron they wanted to talk there with me but ah, I thought Aaron might you know, he might talk more freely if it was just him and Mark there. So I went outside and ah, and Mark said something about it being about 20 minutes or something before something happens.
[31] Mr La Roche described walking to his son’s home, collecting two knives, walking back to the courthouse and hiding one knife under a table. He described the sequence of events in the following way:
JL So I walked back to my other son’s house which is about two blocks away. I remember I took a tablet, I took the wrong tablet I suppose.
DL What sort of tablet did you take and why?
JL I, I’m on antibiotics and I took an antibiotic tablet, I should have taken Adavan, I just wasn’t thinking straight. Adavan is a kind of a sedative but last time at the custody case I took too many sedatives. Oh so then, then I got the knives, I went and got the knives. I went and got the knives and I went back. And I walked back in there and Mark wasn’t there, there was just my son and my Chinese friends sitting there and ah, my Chinese friends tried to talk to me but I was.
Then I went into one of the side rooms and, I had the two knives, I threw one under a table, I was worried that someone would take a knife off me you see and I wanted to have the knife and I wanted to have something you know cause I can’t fight, I don’t, I can’t punch people and I wanted to have a knife.
[32] He then described how he killed Mrs Bennellick:
JL So I had a knife and Margaret was just through the glass door. She was just sitting there looking at me. So I went in there and stabbed her. Everybody just milled around and, and no one seemed to do anything, no one did anything, everybody just, stood around and I went out again, I just went out again and I couldn’t understand why they let me go out again.
And I went back into the room and got the other knife, cause I thought I’d just hurt her, and then I thought well if I’ve just hurt her that’s just gonna, that’s just gonna make it worst. Cause if I’ve just hurt, she’s still going to go off with the kids. And she’ll just carry on damaging these kids you know letting people hurt my kids. And I’ll be in there for hurting her, so I went and got the other knife and I went back and I stabbed her again, I couldn’t believe they just let me do it. Nobody, nobody tried to stop me. Even after I stabbed her the second time, no one tried to stop me, no one grabbed me or nothing.
I went out in the other room and I told this boy, I told this teenage boy to hold me, you know to grab me to sit on me or do something. And he just abused me or something and ah, I lay down on the floor and nobody did anything. And then this Policeman arrived and he didn’t seem to know what to do, I had to tell him that I’d just, I just stabbed, and then they put the handcuffs on me and it was alright.
DL How many times did you stab her John?
JL I can’t remember, it was at least twice. I’m not sure about the first time, I think the first time might have been just once. But the second time I think, I, I think I stabbed several times because it was on her back, she, she must have been lying on front or something, I can’t remember. I’m not sure if she was standing up or not, I can’t remember now. I remember at some stage seeing her lying down. Oh there was such a lot of blood, but that might have been afterwards.
But the second time when I stabbed her in the back, I think I stabbed her several times because the knife wasn’t going in and I remember, the knife was bent, so I might have stabbed her several times but I
don’t think the knife went into her at all. It must have been on the shoulder blade.
DL Did she say anything to you?
JL I think probably the first stabbing, the first stab did the damage but, probably me stabbing her the second time, that probably sort of made it worse and it, I guess that prevented people from helping her as well. I suppose they were afraid of me. No she didn’t say anything to me.
DL Did you say anything to her?
JL No the only thing we ever said to each other was “Hi Margaret and
Hi John,” and that was before.
[33] When asked why he had gone to his son’s house to pick up the knives he said:
DL Why did you pick the knives up and take them back to the
Courthouse?
JL I was afraid that she would get away with my children again and I’d never see them again. I’m afraid, I’m afraid she’d take them to Wellington, I don’t want them to go to Wellington, Ohakune was bad enough. I thought at least in Ohakune people knew my kids and that, you know people, people would protect my kids if they were in trouble in Ohakune cause they would know them, they weren’t just people in the street. If she had them in Wellington they’d just be on the street and they’d just be.
DL How old are the children?
JL My daughter is 14, she was the one I was worried about. She’s not a very bright girl, she’s sort of easily influenced. Social Workers in their report, they said that she was vulnerable to sexual abuse. I felt as though that was a kind of a veiled accusation against me but, but I think it was true, I think she, she’s um, she’s the kind of girl that needed a lot of physical attention you know. I mean she stopped getting it from me because I was cut out of her life, I guess she had the tendency to just go to any other male, you know.
OW Why were you cut out of her life?
JL Well Judge INGLIS did that, he’ll have to answer that. OW Why do you think?
JL I don’t really understand I can’t, I don’t understand, I don’t know why really.
DLSo was Judge INGLIS in your opinion, that caused your problems, your worries, by his decision in regards to the Family Court custody, it that, that what you’re saying?
JL His decision seemed to be the only thing that had any weight you know I went to people afterwards for help and they just said well Judge INGLIS has made his decision and they just sort of backed off, so.
[34] He was then asked again why he had taken the knives back to the court. He answered:
DLSo I go back to the question John is why did you take the knives back to the Court?
JL I wanted to kill Margaret. So there you go. DL You right?
OW What were you going to achieve by killing her then John? JL Oh the children would have been safer you see.
DL Sorry the?
JL The children would have been safe. DL Who with?
JL With my family, you see I’ve got a lot of family here in Palmerston.
I figured was Margaret was dead the children would go to my family and then they’d be safe.
DL When did you decide to do this?
JL Well I often thought of going up to Ohakune and killing Margaret up there. …
DL Over what period of time?
JL Oh well whenever I couldn’t find any other solution, whenever anybody said they wouldn’t help. Which was just about all the time.
DL So it’s been going on for months, years?
JL Oh I knew I wouldn’t do it, I knew, I knew what I figured what would happen would be I’d go up to Ohakune, I thought I’d probably walk up there or something. Or hitch hike or something and then I’d just go to Margaret’s place and I’d knock on the door, and she’d answer the door and then she’d slam the door on me. Then I’d just, I’d just be embarrassed and then the Police would be called and I’d be charged with Non-Molestation for going to her house. So I didn’t want to hurt Margaret while the kids were there.
[35] The interview then returned to the topic of his son and his lawyer. Mr La Roche said that he had been angry with his son, Aaron, because he had not
done enough for him. He had wanted both his older sons to go to court and say that he was not a bad person. He also explained a bit more about what he had been told by his lawyer. He said:
OWWere you told anything about what was going to happen between you and your kids today, by Mark McGEE?
JL Ah he told me that ah, I think he told me there was no question that I’d, be just of told that I could see the kids and he said it would be a matter of time, he said you, he said it’s been so long since you’ve seen the kids that the Courts probably going to insist that you get to know them again. And oh, I couldn’t stand the idea of that.
DLYou say you couldn’t stand the idea of ah, of what, not seeing your kids again, or?
JL Well seeing the kids, see, I’m pretty sure my kids have been starved, as soon as I see the kids and I see them starved. I probably, I probably go fucken ape again.
DL Again, you’ve done it before?
JL Oh I’ve never hurt anybody before. And then I figured then that the Court would use that as an excuse for stopping me from seeing the kids entirely and you know I’d probably threaten Margaret or something if I thought she wasn’t feeding them. And soon as a made a threat that would be the fucken end of it, I’d go to jail and Margaret would still be wandering around letting people abuse my kids.
[36] Mr La Roche was asked about his attitude to the Family Court system at the end of the interview. He said:
OWWhat did you think people were doing from the Family Court system to you? …
JL Oh I just thought they were sort of hoping I would go away. Go away and die or something. I don’t think anybody particularly sort of you know, wanted to do me any harm, it’s just they didn’t care. I think Bruce ANDREWS, he’s the counsel for the children, I think he wanted to do me harm, he had reason to do me harm. Because I complained to the law society about the fact that he hadn’t achieved enough. You know this was going on for years. I wrote to the law society and complained about him and then I wrote to the Minister of Justice and complained about him and so I suppose he, he just decided to get vicious.
DLHave you ev, ever had any physical altercation with Margaret before today? Have you ever stuck her?
JL Never.
DL Ever threatened her? JL Never.
DL Why did you attack Margaret today then, if you were going to get the custody of your, or access to your children?
JL Because I wasn’t going to get access. They were talking about leaving it for another year before I got to see the kids, another year. You can’t leave a 14 year old girl loose in the fucken streets of Wellington for a year. She didn’t have anyone to protect her. Well did she?
Mr La Roche’s affidavit
[37] In Mr La Roche’s affidavit dated 27 June 2005, he says that his trial counsel had told him before his trial that provocation was not a possible defence and that the only defence was insanity. When the psychiatric reports received did not support that defence, he advised his counsel that he wished to plead guilty but then he decided to defend the charge.
[38] In his affidavit, Mr La Roche gives his version of how he saw his defence and his view of the events on the day of the killing. He says:
6.Mr Behrens put my defence as a lack of intention to kill Margaret Bennellick. To my mind that was obviously hopeless as I did intend to kill her, although I vehemently deny I had planned to do so.
7.I saw my defence, in layman’s terms, as being mitigation. That is that I had been driven into a corner as far as my role in protecting my children went. The children had been physically and sexually abused in her care and individuals convicted of that.
8. On the day of the killing I went to the Palmerston North Courthouse.
I was not required to be there and nor was Margaret Bennellick. I did not expect to see her there as I thought she was in Ohakune. I expected to be told the result of the case in the waiting room. And I was. My lawyer told me that it would be twelve months before I would even see my children.
9.I had intended to kill myself and had made plans to do so. However my lawyer told me to come back to the Court house later so I did. I returned with knives to try to kill Margaret although I expected to be stopped from doing so and to thereby make a scene.
10.I know in myself that I did intend to kill her but only after my lawyer told me what he did. To me that meant that the children
would be moved from Ohakune to live in Wellington City and in my view they would be unsupervised and at risk.
11.To me it was just the last straw in being unable to see my children or to protect them.
12.I wanted the jury to understand that I had never been a violent man and that I had just run out of options in protecting my children. I had never attacked Margeret before and would not have done so if something safe had been done, or even planned to be done, for the children.
13.As it turned out, as I understand it now, CYPTS was taking care and protection proceedings at the time. But I did not know that.
Submissions for Mr La Roche
[39] Mr Lithgow, for Mr La Roche, submitted that a credible narrative of provocation was present on the evidence. The credible narrative was submitted to come from Mr La Roche’s build-up of frustration as a result of intense worry for the welfare of his children and repeated setbacks at the hands of the Family Court who had given the victim custody of the children. Mr Lithgow said that Mr La Roche believed that one of his children had been sexually abused and at least one physically abused. He also believed that Mrs Bennellick was not able to protect the children from physical and sexual abuse and from the other general risks of childhood.
[40] Mr Lithgow submitted that there was a clear foundation for Mr La Roche’s concerns. His daughter had been sexually abused by Mrs Bennellick’s oldest son who had been charged and pleaded guilty to that offending. A short-term boyfriend of Mrs Bennellick had reportedly physically abused the younger children. Further, the children were in the process of moving to Wellington as Mr and Mrs Bennellick had reconciled. Mr La Roche considered the children would be at risk in Wellington because of inadequate supervision by their mother, although it was conceded that Mr La Roche had no reason to (and did not) have any concern about Mr Bennellick.
[41] In Mr Lithgow’s submission, Mr La Roche had come to believe that only he could protect the children but that the Court processes, instituted by his ex de facto partner and of which she was the beneficiary in terms of care of the children, stopped him fulfilling that role. On the day of the killing Mr La Roche had been told that he
would not have any role with the children for at least another year. In Mr Lithgow’s submission, to be excluded from the care of children one believes need your care must be capable of amounting to provocation.
[42] Mr Lithgow submitted that while, no doubt for policy reasons, a Family Court Judge’s exercise of power is excluded from being provocative conduct under s 169(5), other participants in the process are not similarly protected. He submitted that the very existence of s 169(5) indicates that such a scenario could be provocation.
[43] Mr Lithgow accepted that provocation must emanate from the victim but, in his submission, this must be assessed in light of the extension to that principle traversed in this Court’s decision in R v Turaki CA405/04 23 June 2005. In his submission, Mrs Bennellick was a party to the on-going saga. She was literally a party to the proceedings. She was not the decision maker but she was the beneficiary of the decisions in that she had custody of the children. In ordinary parlance, Mr Lithgow submitted that Mrs Bennellick was a party to the process by which Mr La Roche was excluded from the care and protection of their children.
[44] As to whether Mr La Roche was provoked and thereby lost the power of self-control, Mr Lithgow accepted that this is the most difficult aspect of the case but, in his submission, it is one that, in the end, is a factual determination. Mr Lithgow pointed out that Mr La Roche was upset and crying when told that Mrs Bennellick had died – see at [20] above. He accepted that there was evidence that could be taken as showing pre-meditation. He submitted, however, that the evidence presented by the Crown of written expressions of homicidal feelings towards Mrs Bennellick may be analysed as Mr La Roche’s way of working the feelings “out of his system”. On this view, the diary is not evidence of planning, but evidence of self-control, subsequently lost when frustration finally overwhelmed Mr La Roche in the Family Court waiting room.
[45] The underlying theme of Mr Lithgow’s submissions was that these questions, based on a particular view of the evidence, are ones that only a jury can decide and that therefore the issue of provocation should have been left to the jury.
Submissions for the Crown
[46] Mr Downs, for the Crown, submitted that the evidence does not support the existence of a credible narrative of provocation. In his submission, what is contended for on behalf of Mr La Roche risks stretching the concept of provocation beyond recognition into one of diminished responsibility.
[47] Mr Downs submitted that the record, far from demonstrating a credible narrative of causative provocation, in fact demonstrates that, on the contrary, the murder was considered and seemingly committed in cold-blood, as evidenced by the numerous diary entries and Mr La Roche’s attitude in the video interview. While evidence of provocation need not have as its genesis evidence from an accused, Mr Downs pointed out that Mr La Roche has never said that he lost self-control, or that he was provoked by Mrs Bennellick. He submitted further that the evidence does not support provocation occurring through a “slow-burning fuse” as in R v Taaka [1982] 2 NZLR 198.
[48] In any event, in Mr Downs’ submission, there is no evidence of any provocative conduct at all on the part of Mrs Bennellick and certainly nothing in any proximity to the killing. To the extent that Mr Lithgow attempted to rely on Mrs Bennellick’s participation in the Family Court process as provocative conduct, Mr Downs submitted these actions are covered by s 169(5). In his submission, Mr La Roche must isolate self-constituting provocation on the part of Mrs Bennellick to ground any narrative and he is unable to do this.
[49] Mr Downs also submitted that Mr La Roche should not be allowed to raise the issue of provocation on appeal, it not having been relied on at trial. The gist of this submission was that, where an accused has the benefit of counsel, then, in the absence of special circumstances, such as radical error on the part of counsel, an appellant should not be permitted to rely on a defence raised for the first time on appeal. Mr Downs submitted that, in this regard, R v Tavete [1988] 1 NZLR 428 should be revisited.
[50] He submitted that the issue in this case is not whether provocation raised as a defence should have been withdrawn from the jury’s consideration. It was never raised by Mr La Roche. The question is whether, when a defence is disavowed with the benefit of counsel and with tactical aim, an appellant should be able to raise it for the first time on appeal so as to pursue a fresh defence at a retrial. It was acknowledged that that question is collateral if no credible narrative of provocation is found to exist, but Mr Downs submitted that this case may be thought to highlight the undesirability of the absence of such a procedural bar, albeit one that is sufficiently flexible to allow room for cases involving a miscarriage.
Discussion
[51] Before leaving the partial defence of provocation to the jury there must be a plausible narrative of causative provocation which is reasonably capable of leading a jury to find it reasonably possible that both limbs of s 169(2) were satisfied. In this regard, there must be a plausible narrative of:
(a) provocation emanating from the victim or to which the victim was a party (leaving aside mistake as there is no suggestion of any mistake in this case);
(b)sufficient to deprive an ordinary person of the power of self-control (leaving aside the question of special characteristics as it is accepted that Mr La Roche did not have any such characteristics at the relevant time); and
(c) that did in fact deprive Mr La Roche of the power of self-control and thereby induce him to commit homicide.
[52] Taking the last point first, we note that Mr La Roche did not assert in any of his statements just after the stabbing or even in his later interview with Dr Brinded that he had lost the power of self-control at the time of killing Mrs Bennellick. Indeed, he does not even assert that now in his latest affidavit. While, as Mr Downs conceded, evidence of the loss of the power of self-control does not need to emanate
from an accused, in our view, the lack of such evidence is fatal in this case because Mr La Roche’s statements (both at the time and now) indicated that he was, in fact, acting with cold deliberation, and there was no other evidence supporting the contention that he had lost his power of self-control.
[53] We note the strong evidence pointing to Mr La Roche’s murderous thoughts for a lengthy period before the killing. More importantly, we point to the evidence of deliberation just before the stabbing. This involved not only walking back to Aaron’s house to collect the knives but also the fact that two knives were taken and one carefully hidden to ensure that it was available for him to use should the other knife be taken from him – see at [31] above. Mr La Roche remained enough in command of himself, after the first stabbing, to go to pick up the second knife and return for a further attack – see at [32] above. He was also able to hold some sort of conversation with Mr Zhao before the stabbing – see at [12] above. Further, after the killing Mr La Roche was able in his video interview to explain his motives and actions and these were congruent with the material in his diary. There is therefore, in our view, no evidential foundation at all for the suggestion that Mr La Roche may have lost his power of self-control.
[54] In coming to this conclusion we have not ignored the evidence that suggested Mr La Roche was upset after the stabbing – see for example at [12] and [20] above. In our view, that evidence was countered by other evidence that he was calm after the stabbing - see at [15] and [16] above. In any event, the evidence went no further than showing that Mr La Roche may have been upset when he realised that Mrs Bennellick had died. It does not provide a sufficient foundation to allow a jury to conclude it to be reasonably possible Mr La Roche had lost his power of self-control at the time of the killing. Any such conclusion would be pure conjecture and this does not suffice – see eg R v Matoka [1987] 1 NZLR 340 at 344.
[55] We now move to the first and second criteria - that provocation must emanate from the victim or be provocation to which the victim is a party and that it be sufficient to deprive an ordinary person of the power of self-control. In this case there was no evidence of any provocation at all emanating from Mrs Bennellick in
any proximity to the attack. Indeed, it appears that the only thing she did on the day of the attack was respond to Mr La Roche’s greeting – see at [29] above.
[56] Mr Lithgow suggested that Mrs Bennellick taking the children to Wellington was seen by Mr La Roche as provocation. There is an evidential foundation for the proposition that, at the time of the killing, this was of concern to him because the children would be unsupervised in a large city. We doubt an ordinary New Zealander would expect a person having the power of self-control of an ordinary person to lose their power of self-control at the thought of their children moving to a city but, as there is no evidence that Mr La Roche did lose the power of self-control, we do not need to discuss this further.
[57] Mr Lithgow also pointed, as possible provocation, to Mrs Bennellick allegedly allowing the sexual abuse and physical abuse of the children by her son and former partner. These incidents were, however, well removed in time from the attack and thus cannot, in our view, provide a foundation for provocation at the time of the stabbing. Certainly they would not meet the second criterion.
[58] Mr Lithgow pointed finally to the Family Court proceedings themselves as providing a basis for provocation. We do not consider that merely exercising her legal rights to have custody and access issues determined by the courts can amount to provocative conduct on the part of Mrs Bennellick. There is no suggestion of any improper conduct by her in those proceedings. It is inconceivable that a person with the power of self-control of an ordinary person would lose the power of self-control in such circumstances.
[59] In any event, in our view, Mr Lithgow’s argument that the exercise of a court’s powers is not provocation, but that the “court process” in general can be, is not sound. The effect of s 169(5) is to protect those who validly exercise powers conferred by law. This aim would be defeated if the court process may indirectly be used to ground provocation.
[60] Given our conclusion that there is no credible narrative of provocation, we do not need to deal with the Crown’s contention that Mr La Roche should not be allowed to raise provocation on appeal for the first time.
Result
[61] Mr La Roche has failed to raise a plausible narrative of provocation with regard to either limb of s 169(2). Accordingly, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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