R v Patangata

[2019] NZHC 226

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-019-001105

[2019] NZHC 226

THE QUEEN

v

TENESHIAH PUHINAHINA PATANGATA

Hearing:

11 – 20 February 2019

Counsel:

L Dunn for Crown

MJ Dyhrberg QC and BJ Hunt for Defendant

Judgment:

21 February 2019

JUDGMENT OF DOWNS J

(Reasons for Ruling (No 2))

This judgment was delivered by me on Thursday, 21 February 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. MJ Dyhrberg QC, Auckland. BJ Hunt, Wellington.

R v PATANGATA [2019] NZHC 226 [21 February 2019]

[1]    Yesterday, Ms Patangata was found not guilty of murder, but guilty of manslaughter. During trial, I heard argument about the availability of two defences, including self-defence. It is elementary a Judge must leave a defence (to a jury) if a credible narrative exists to support it.

[2]    I was satisfied Ms Patangata’s Police interview raised a narrative of self-defence. This conclusion should not be misunderstood as one the defence was likely to succeed. Obviously, it did not.

[3]    Ms Patangata was interviewed by the Police the same day as the alleged killing of her partner, Mr Peter Savage. Mr Savage died from a single stab wound to his neck, inflicted by a knife. He and Ms Patangata were at a party, with family and friends, on New Year’s Day 2018.

[4]    Ms Patangata denied killing Mr Savage, and said she did not know how he had died. However, Ms Patangata also told Police she and Mr Savage were fighting immediately before he died. Ms Patangata said things began with an argument about her children (to whom Mr Savage was a step-father), which escalated to a fight when she slapped Mr Savage to the face.   Ms Patangata said they then hit each other;     Mr Savage kicked her twice to the legs; and choked her. Ms Patangata said he did so with one hand.   Ms Patangata then said the fight continued to the area in which     Mr Savage fell, fatally injured (with a knife wound to his neck). Ms Patangata described herself as right next to Mr Savage when he fell. No one else saw what happened, albeit many others were nearby.

[5]    Ms Patangata was asked how she felt when Mr Savage choked her. She said she was scared. Ms Patangata earlier described herself as “angry”.

[6]    Unsurprisingly, the jury rejected Ms Patangata’s assertion she did not  kill  Mr Savage. But, it would have been open to the jury to consider Ms Patangata did so in response to Mr Savage’s use of force against her, including his earlier grip of her throat. Ms Patangata’s apparent anger, and the fact she was the initial assailant, did not necessarily exclude the possibility of self-defence, albeit these were also factors

the jury could consider (and presumably did) in determining whether Ms Patangata was truly defending herself.1

[7]    Ms Patangata’s use of lethal force with a weapon against an unarmed assailant were significant impediments to her force being reasonable. So too alternative lesser courses  of  action  (for  example,  calling  for  help  from  those  present,  whom   Ms Patangata described as “good people”). The test is, of course, objective. However, reasonableness must be assessed according to the circumstances as the defendant believed them to be. Antecedent pressure to Ms Patangata’s airways (from Mr Savage) was a matter bearing in this mix. So too her earlier consumption of alcohol. The issue was not whether Ms Patangata correctly believed something; rather what she did.

[8]    Ms Dunn submitted Ms Patangata did not say to the Police she was defending herself. True. However, the narrative above raised the reasonable possibility that is what she was doing. A defendant in a criminal case need not plead a defence.

[9]    Ms Dunn also invited attention, again correctly, to what Ms Patangata said to the Police about earlier fights between her and Mr Savage. Ms Patangata said she and Mr Savage frequently argued, and occasionally fought each other. Ms Patangata described these as “fights” (not as attacks by Mr Savage on her). Ms Patangata said these typically ended when one of the parties walked away and cooled down.

[10]   This aspect was undoubtedly relevant to reasonableness of force. It was open to the jury to conclude Ms Patangata did not regard these fights as serious, and hence had no reason to believe Mr Savage was trying to hurt her on 1 January. But, the key phrase is “open ... to conclude”. The jury could also consider Mr Savage’s interference with her airways—which Ms Patangata said frightened her—relevant to reasonableness of force. In other words, self-defence was precarious at best, especially in relation to reasonableness of force, but still available. Care must be taken not to remove an issue from the jury that ought be left to them.

1     Simon France (ed) Adams on Criminal Law — Offences and Defences (online looseleaf ed, Thomson Reuters) at [CA48.06].”

[11]   That left one issue. Ms Dunn contended Ms Dyhrberg QC should not be permitted to close on the basis Ms Patangata might have unwittingly stabbed with a knife, meaning administered a blow with a knife to Mr Savage’s neck, without appreciating she was holding a knife (that is, manslaughter). I disagreed.

[12]   Ms Patangata expressed apparent surprise to those at the scene and to Police about how Mr Savage had died. And, Ms Patangata displayed immediate and obvious distress at his death. But awkwardly, Ms Patangata also appeared to accept to Police she had been hitting Mr Savage immediately before he fell to the ground. She said she had nothing in her hands at the time. The tension between these aspects left room for the proposition Ms Patangata used a knife on her partner without appreciating she was holding one. Again, this was not to commend the defence as strong; it was simply to note its availability.

[13]   A final observation. It is all but certain the manslaughter verdict reflects absence of proof of murderous intent rather than the thesis at [11], which was not advanced as a primary defence, or with any vigour. But, that is a matter on which I shall hear argument at sentencing. Ms Patangata is to be sentenced on 27 March at

2.15 pm.

……………………………..

Downs J