R v Morrell HC Tauranga T011599

[2001] NZHC 597

IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY T011599

THE QUEEN

v

VINCENT ALLAN MORRELL

Hearing: 29 June 2001

Counsel: G C Hollister-Jones and B Thomas for Crown (by telephone)
R O Gowing and G R Tomlinson for Accused (by telephone)

Judgment: 3 July 2001

JUDGMENT OF ANDERSON J

Solicitors:
Ronayne Hollister-Jones Lellman (Tauranga) for Crown
Gowing & Co (Whakatane) for Accused

[1] The accused is to be tried for murder in the High Court at Rotorua on 23 July 2001.

[2] Following an indication of objection by the accused to certain evidence which the Crown had intended to lead, the Crown has applied for rulings as to admissibility pursuant to s 344A of the Crimes Act 1961.

[3] One of the matters of evidence objected to was photograph 135, which is a photograph of a tattoo on the accused’s back which reads “Psychokiller”. The Crown is not insistent on the production of this photograph. In the circumstances of the case it can have no probative value but is very prejudicial and I rule it inadmissible.

[4] The defence objects also to the complete booklet of post-mortem photographs. These photographs are gruesome in a manner typical of post-mortem photographs in the course of the pathology. The probative value according to the Crown is the indication of the force used by the accused when he struck the deceased several times with a knife. Any prejudice must lie in the emotional response such photographs might provoke from lay people unused to seeing such material.

[5] It is difficult to see how the emotional response could unfairly prejudice the accused, although some personal upset on the part of jurors might be expected. In my view the photographs are generally admissible but the Crown may wish to consider whether the matters sought to be proven can be established by less visually unattractive photographs. This will be a matter for discussion in any event in the light of an expected brief of evidence by the pathologist.

[6] The main point of objection by the defence is to a good deal of the evidence of an associate of the accused called Corey Ngamoki. At the beginning of the brief Mr Ngamoki indicates that he met the accused in Waikeria Prison and although the accused was transferred for a short time to another prison he and Mr Ngamoki became friends. He testifies as follows:-

“At about the end of March 2000 the defendant got a job in the prison farm making dog rolls. He had to kill the sheep, skin them and turn them into dog rolls. He would come back each day a bit different. It seemed to be affecting him badly.

He sometimes used a pencil to show me how he used and held a knife.”

[7] Mr Ngamoki says that at one stage he saw the accused kill a sheep by cutting its throat and ripping its head off. Later in his brief Mr Ngamoki says that the accused told him he wanted to get something used for killing sheep in order to do his first murder and he talked about lots of different ways to kill someone. He says the way the accused said he liked best was to slit the throat with a knife from ear to ear. Evidence of this type appears throughout the brief and in common with the objected to portions is highlighted thereon.

[8] Another challenged part of the brief relates to aggressive reactions to other car drivers when he and Mr Ngamoki were driving around.

[9] The evidence objected to must be considered in the context of the events proximately to the homicide. On the evening of 27 May the accused and Mr Ngamoki were sleeping off the effects of a cannabis cigarette in a car at Taneatua. A short time previously the accused had found and appropriated a knife in a shed at the property where the car was. Mr Ngamoki says that the accused also had a normal butchers knife for hunting and that this was in the car. Mr Ngamoki was woken up by the sound of someone yelling at the accused. He saw the accused and the other person facing each other with grips on each others collars. According to Mr Ngamoki the accused threw the other person to the side and said “I’m gonna to fucken kill you cunt”. He then saw the other person fall back with the accused’s arms swinging and punching into him a number of times. The accused repeated “I’m gonna fucken kill you”. He says that he leaned forward and saw the other person trying to get the accused off him and trying to protect himself, but the accused was on top of him and he just saw arms going.

[10] It was in the course of this incident that the accused stabbed the deceased many times. The Crown submits that considerable force was used to penetrate the heart and other parts of the deceased’s body indicated by both the number of wounds and the depth of them within the body. It is expected that the accused will formally admit, for the purposes of s 369 of the Crimes Act 1961, that he stabbed the deceased using a white handled filleting knife, Exhibit 17, and that the wounds resulting from the stabbing of the deceased killed him. Mr Gowing indicated that he was instructed to put self defence in issue.

[11] The Crown submits that the evidence objected to in the brief of Mr Ngamoki, as indicated by the highlighted sections, is relevant to the accused’s state of mind in preceding weeks and his ability with a knife, to the extent that these bear on a general intention to kill. The evidence relating to slaughtering sheep indicates experience and ability with a knife. The evidence of demeanour in the three weeks prior to the killing is said by the Crown to indicate a general irascibility. In this respect reliance is placed by the Crown on the use made by the prosecution in R v Scott Watson, in connection with the Marlborough Sounds trial, as indicative of a particular interest in young women about the time the young couple disappeared. The relevance of such proximate disposition in that case is much more obvious than in the present case.

[12] In my judgment all that is sufficiently relevant and probative to be admissible amongst the impugned portions of Mr Ngamoki’s brief is that evidence tending to show familiarity with the use and effect of butchering knives. The reasonableness of the force used in circumstances where the accused is expected to put self defence in issue makes relevant the accused’s familiarity with the use and effects of a weapon such as that in issue. It is unnecessary to advert to imprisonment for this purpose.

[13] I do not consider it sufficiently relevant and probative that in the weeks leading up to the homicide the accused was of a generally aggressive nature, although if the accused were to give evidence which put in issue his disposition then earlier events may possibly be appropriate for cross-examination.

[14] The fact that the accused appears to have taken some sadistic pleasure in the way in which sheep were killed is of no real relevance in the circumstances of the case. Nor is his talk about killing people, when the Crown case indicates no lengthy premeditation. If this had been a case of stalking a victim the matter might have been different, but the crucial events about the time of the killing occupy a small timeframe.

[15] I therefore rule that all of the highlighted parts of Mr Ngamoki’s brief to which objection has been taken are inadmissible except that the Crown may lead evidence that:-

[a] As at May 2000 Mr Ngamoki and the accused had known each other for about a year.

[b] Mr Ngamoki knew that at about the end of March 2000 the accused had a job which involved the slaughtering of sheep for pet food and that the slaughtering was done with a knife.

[16] The disputed evidence the subject of the s 344A application is admissible to the extent of the post-mortem photographs and that portion of Mr Ngamoki’s brief, as challenged, referred to immediately above.