R v Sadaraka Ca274/03

[2004] NZCA 339

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMLETION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 274/03

THE QUEEN

v

GODFRED JONASSEN SADARAKA

Hearing:         24 March 2004

Coram:McGrath J John Hansen J Nicholson J

Appearances: R M Lithgow for Appellant

E M Thomas for Crown Judgment:      27 May 2004

JUDGMENT OF THE COURT DELIVERED BY NICHOLSON J

Introduction

[1]                 The appellant was charged with murdering Kenneth Forbes at Opononi on or about 5 May 1993. At end of a six day jury trial he was convicted of murder and sentenced to life imprisonment in October 1994.

[2]                 His original appeal against conviction was dismissed ex parte on 9 February 1995 after legal aid was declined. This is a rehearing of that appeal.

R V GODFRED JONASSEN SADARAKA CA CA 274/03 [27 May 2004]

[3]                 The essence of the appellant’s submissions is that the trial Judge misdirected the jury on self-defence and compounded the effect of that misdirection by commenting about the difficulty of seeing how self-defence lay easily with provocation. Furthermore, that he unfairly set out the evidence available to support the respective Crown and defence cases and did not put the defence case fairly and correctly.

Trial Evidence

[4]                 The Crown evidence was that Kenneth Forbes lived alone on a rural property near Opononi, Northland. He grew and harvested a substantial amount of cannabis on his property. Michael McHannigan who also lived in the district was acquainted with Mr Forbes and knew of his commercial cannabis activity. Mr McHannigan also knew the appellant.

[5]                 At about 8.00 pm on Wednesday 5 May 1993 neighbours saw car lights go up Mr Forbes’ driveway and stop by his house.

[6]                 At 10.37 am on Thursday 6 May 1993 Police received a telephone call from Mr McHannigan and as a result Constable Neal met Mr McHannigan. Constable Neal then went to Mr Forbes’ house and found Mr Forbes’ body lying face up on the lounge floor with his head and shoulders on a chair. When Dr Johnson, the Pathologist, arrived that afternoon he saw that Mr Forbes’ body was naked except for underpants which were near his waist, pants which were bunched near his ankles and a sock on one foot. Mr Forbes’ wrists were tied together behind his back with electric cable which ran to where his ankles were also tied together with electric cable. Dr Johnson considered that most of the bindings had been put on either very close to death or after death. There were blood marks on the floor indicating that the body had been dragged to where it lay. There were bruises, abrasions and cuts on  the body, particularly on the trunk and head. There were cuts on the fingers and hands having the characteristics of defence wounds. There were two major cuts on the head which Dr Johnson considered were caused by a heavy knife type instrument. In Dr Johnson’s opinion Mr Forbes had been beaten many times and brutally over most parts of his trunk. This had caused a severe degree of internal

bruising and haemorrhaging. Dr Johnson considered that it was the severity of the beating and the injuries to the head that caused death.

[7]                 In Dr Johnson’s opinion, death was in the range 8 to 24 hours before 5.00 pm Thursday 6 May 1993.

[8]                 There was a dog on the property which had a cut to its head, the relevance of which will become plain later in this judgment. In the opinion of the examining ESR forensic scientist, Mr Forbes’ injuries were suffered outside the house. The appellant’s fingerprints were found on an external wall ranchslider and a stereo cabinet in the house.

[9]                 On 16 June 1993 Police executed a search warrant at the appellant’s house in Auckland and Detective Paki spoke to the appellant. He told the appellant he was investigating a murder in Opononi. The appellant said he had not been up that way but he knew a guy Michael from that area. He said that he had never heard the name Ken Forbes and that he did not recognise photographs of Mr Forbes or his house. He said that he did not travel to the Opononi area on Wednesday 5 May 1993 and could not remember where he was that night. Detective Paki then showed the appellant the fingerprint report about the appellant’s fingerprints being found at Mr Forbes’ home. When asked if he had any explanation for his fingerprints at that place, the appellant answered that he knew nothing about the murder enquiry. Later that day the appellant was arrested and charged with murder.

[10]             On 18 June 1993 the appellant phoned Detective Inspector Shalfoon from prison and asked him to come and see him. Detective Inspector Shalfoon was not involved in the Forbes’ homicide investigation. However, the appellant had contacted him in February 1993 and offered him information about an unrelated matter. The appellant said that he was in a position to supply information about a large shipment of heroin that was destined for Sydney from Bangkok and would be going through Auckland. He also said that it would be necessary for him to go to Australia. He asked Detective Inspector Shalfoon to get him entry into Australia and provide him with airfares, accommodation costs and daily expenses. Detective Inspector Shalfoon made no commitment and when the appellant contacted him

again in March 1993 told him that he could not meet his requirements and the relationship had ended then.

[11]             When Detective Inspector Shalfoon went to the prison on 18 June 1993, the appellant made a written statement, which was produced as an exhibit at the trial. In it the appellant said that he knew Michael McHannigan who had made it known to him that he had a friend up north who had many contacts with drug dealers from Auckland and the northern area. The appellant said that in April he tested the water for demands for cocaine in Auckland and was then told that any big buyers usually go to McHannigan’s friend’s place up north. The appellant said that it wasn’t until just prior to 5 May that he decided that he would introduce himself to Mr McHannigan’s friend up north and it was arranged that the appellant would drive up there.

[12]             The appellant said that he drove north and met Michael McHannigan. He then drove to Mr Forbes’ house with Mr McHannigan, leaving him at the gate.  When Mr Forbes came to the front door the appellant offered his hand for a handshake. Mr Forbes ignored this and pointed a rifle at appellant’s stomach saying: “I don’t do business with black bastards.”

[13]             The appellant said that Mr Forbes then prodded him with the point of the rifle into his stomach forcing him to retreat towards the end of the porch. Fearing that a bullet would be fired at any second the appellant grabbed hold of the rifle to move it away from his stomach. As a result of this action they fell down together off the porch and this gave the appellant the opportunity to wrench the rifle away from his stomach and Mr Forbes’ clutch. They exchanged punches. The appellant said that echoes of Mr Forbes’ words “black bastard” were still ringing in his ears. “It made me fight harder”. Somehow he managed to grab hold of what felt like a machete which was on the ground. The appellant said that after what he thought was a couple of minutes he assumed the upper hand. He ‘grabbed’ Forbes into the house away from the rifle.

[14]             The appellant said he went to the kitchen to wash his hands and saw Forbes heading to the porch where the rifle had landed. He got TV cord and tied Forbes’

hands behind his back and dragged him further into the house away from the porch. While he was washing his hands he heard some noises and saw Forbes looking towards the stairs. He thought that Forbes must have another rifle or firearms and decided to tie up his feet to prevent him from getting up. He then dragged him away from the stairs to another part of the house. He went up the stairs and saw cannabis drying. He then inspected parts of the house and found bags loaded with processed cannabis. He said to Forbes that the drug squad would be staggered at the large amount of cannabis in his house. Forbes replied: “Don’t take all of it.”

[15]             The appellant said he took two bags weighing about two and a half pounds. He walked back to Forbes and kicked him in the stomach saying: “This is for calling me a black bastard.”

[16]             He said he took the two bags of cannabis intending to hand them to Detective Inspector Shalfoon when he arrived in Auckland as evidence. He also picked up the rifle. He went to Michael McHannigan’s house and told him that Forbes had not wished to talk business with him and that he had tied him up to prevent him from pursuing him in a vehicle. He gave the rifle to Michael McHannigan telling him that Mr Forbes had confronted him with it. He said that he took the machete with him and threw it away in the country but he did not know where.

[17]             The appellant said that next day he rang Michael McHannigan from Auckland. McHannigan told him that he had discovered Mr Forbes’ body in the house and reported it to the Police. The appellant said that he expressed his concern and said that he and Forbes had fought and that Forbes was alive when the appellant left his house. The appellant said that he told Mr McHannigan if Mr Forbes was dead: “It was not intentional but accidental.”

[18]             At the conclusion of his written statement the appellant said that he had got rid of the clothing and shoes that he was wearing on the night.

[19]             The appellant gave evidence at the trial. He said that his family had lands in the Cook Islands and that in 1992 he was seeking finance for its tourist development. Michael McHannigan told him that he knew of people in Northland who might be

interested in the development proposals and that on the afternoon of Wednesday 5 May he drove north and met Michael McHannigan. They then drove to Mr Forbes’ place. McHannigan stayed at the gate as he did not want to be present during the appellant’s meeting with Mr Forbes. The appellant said that when he got to Mr Forbes’ house he got out of the car, said his name and extended his right hand in a gesture of greetings. Mr Forbes made a movement and produced a firearm and ordered him not to move. He said:

“I was frightened and he let loose with a string of colourful words … called me a black bastard.”

[20]             The appellant said that Mr Forbes closed the distance between them with the point of the rifle aimed at his stomach. He grabbed hold of the barrel of the rifle. They struggled on the deck and he managed to wrench the rifle out of Mr Forbes’ hand. They fell into the garden and while they were struggling there he felt  a metallic object and:

“... just instinct that made me grab hold of it as a form of defence and during the struggle at close range I hit him a couple of times ...”

[21]             The appellant said that while they were fighting one of the dogs bit him in the legs. He attempted to poke it away with the metallic object, which was a machete and hit the dog. The appellant said that he could not recall the fight in detail:

“... just bits and pieces. All happened very fast.”

[22]He said that there was close-quarter combat which lasted for:

“... I would imagine several minutes I can’t say it’s vague ...”

[23]             The appellant said he told Mr Forbes that they should stop fighting but noticed that Mr Forbes was looking towards the end of the deck where the rifle had landed, showed signs of wanting to continue on with the fight. They fell through the sliding door. He again said to him that the fight was over and told him to be  sensible. Mr Forbes was still struggling so he grabbed a red and black cord and tied the back of his hands and dragged him to a bedroom. They were both bleeding. He then went to the kitchen and was washing his hands when he heard a noise from the bedroom area. He then dragged Mr Forbes into the lounge. He thought he may have

tied up his feet with a pair of old socks. When asked about the red and black cord which was found around Mr Forbes’ ankles the appellant said he was sure he did not tie up his feet with that, only tied his wrists with the red and black cord. The appellant was asked and answered:

“Q.      During the whole of this episode would you have been quite excited?

A.Very excited.

Q.Naturally the confrontation such that the adrenaline in both of you flowing pretty heavily?

A.       Yes correct.

Q.       Can you recall everything that happened in detail?

A.       Some most of it were vague.”

[24]             The appellant said that he then went out to the deck, picked up the rifle and put it in the back seat of his car.  Then  for a brief period he had a few words with  Mr Forbes, who was conscious. He then picked Mr McHannigan up at the gate and went to his place where he gave Mr McHannigan the rifle and washed up. He then drove back to Auckland. The appellant said that he had lied to Detective Sergeant Paki and Detective Inspector Shalfoon. He said that he was merely attempting to impress Mr Shalfoon. The appellant said that as the result of seeing the Police photographs of Mr Forbes’ body he was shocked and amazed and realised that someone else was involved.

[25]             In cross-examination the appellant said that he did not strike as many blows as the photographs showed. He was asked and answered:

Q.You told Mr Shalfoon that you didn’t pick up the machete until you   had assumed the upper hand, was that the truth when you told him that?

A.       Yes, that is correct.

Q.By the time you had the machete in your hand did you have, in effect, control of Forbes?

A.       Actually, we both had our hands on the machete.

Q.       Is this something just come to you is it?

A.       No.

Q.

A.

Q.

We are hearing for the first time. Just the little details I missed out.

Had you assumed the upper hand in relation to Mr Forbes?

A.

Yes I did, yes.

Q.

Was it after that you grabbed hold of the machete?

A.

It was before that.

Q.

If your story about the rifle is true, you basically get it off him straight away, isn’t that so?

A.

Not as simple as what you just described.

Q.

According to you he puts the rifle, in effect, on your stomach?

A.

Correct.

Q.

And you grab it and wrench it away from him?

A.

Wasn’t as simple as that.

Q.

In fairness, you told Shalfoon the two of your fell down, that gave you the opportunity to wrench the rifle away from your stomach and his clutch?

A.

Yes.

Q.

Wasn’t that all at the very beginning?

A.

Yes it was.

Q.

According to you there is a few punches?

A.

Quite a few punches.

Q.

And you assumed the upper hand?

A.

Yes.

Q.

Forbes doesn’t lay a finger on you after that isn’t that so?

A.

There were signs he wanted to continue on.

Q.

In effect you tie his hands up so he can’t do anything more?

A.

That is right.

Q.

You’ve already used the machete haven’t you?

A.

Yes.

Q.

Were you torturing him to find out where cannabis hidden?

A.       No Mr Smith.

Q.       How many blows with the machete you say you delivered?

A.       Several times.

Q.       What does that mean 20?

A.       Not that amount.

Q.       So you can recollect the number can you?

A.       Perhaps 4 – 5 times.

Q.Are you quite sure you took the machete with you when you left the property?

A.       Yes.

Q.Look at photograph 21 that  booklet, (showing major scalp  wound)   why would it be necessary in self-defence to hit a person in that way with a machete Mr Sadaraka?

A.       To make sure that he doesn’t die.

Q.       Did you say to make sure that he doesn’t die?

A.       To make sure he doesn’t receive any serious injury.

Q.Do you not regard hitting a person on the top of the head with a machete such as with such force driven inwards as a serious matter?

A.       I was fighting for my life.

Q.How do you fight for your life with a man whose hands are tied behind his back?

A.       I think you’ve got it wrong.

Q.Do you accept that if a man has his hands tied behind his back no room for a claim of self-defence?

A.       The reason I tied up Mr Forbes’ hands was to quieten him down.

[26]The Police did not find a rifle or a machete at Mr Forbes’ property.

[27]             The appellant called a  witness  who  deposed  that  about  a  week  before  Mr Forbes’ death he had seen a rifle in Mr Forbes’ house.

[28]             A neighbour testified that a week before Mr Forbes’ death he heard a loud argument and three shots fired rapidly in the vicinity of Mr Forbes’ house.

Provocation

[29]             At the conclusion of the evidence counsel made submissions about whether provocation should go to the jury.

[30]             Mr Whiting, leading counsel for the appellant, said that his instructions were not to address the jury on provocation as an alternative but to emphasise that Mr Forbes did not die through the actions of the appellant and if those actions were a significant and contributing cause of death, then the appellant was acting in self- defence. Mr Smith for the Crown submitted that the Judge should not put provocation because, even giving the best complexion to the evidence in favour of the appellant, there was just insufficient evidence of provocation to go to the jury.

[31]             Referring to the Court of Appeal decision in R v Tavete [1988] 1 NZLR 428, the Judge said that because both counsel did not wish provocation put, that was no reason for his refusing to do so, if evidence existed. He said that it was his duty to put it if there was evidence reasonably capable of leading the jury to find that it was reasonably possible both aspects of the provocation test were satisfied. He said that it was a very finely balanced case and his inclination was not to allow provocation to go to the jury, particularly when neither counsel wished it. However, having considered the evidence he felt obliged to make reference to provocation in his summing up and he did so.

Appeal submissions

[32]             Mr Lithgow’s primary submission for the appellant was that the Judge’s basic direction on self-defence that:

A person acting under self-defence must act purely out of defence and not for motives of punishment, vengeance, anger etc (emphasis added)

was wrong in law. He submitted that the Judge made the effect of that misdirection worse by immediately following it with the comment:

You may find it difficult, though it is in law possible, to see how self- defence lies easily with provocation which is on the basis that a person has lost control and is so provoked into killing somebody else.

[33]             Mr Lithgow further submitted that in quoting lengthy parts of the cross- examination of the appellant on the aspect of self-defence and not balancing this by quoting from the appellant’s evidence in chief, the Judge did not give a balanced summing-up and that he did not put the defence case fairly or correctly.

[34]             For the respondent, Mr Thomas responsibly accepted that on the basis of the recent judgment of this Court in R v Howard (2003) 20 CRNZ 319, the Judge’s “must act purely out of defence” direction was incorrect. However, he submitted  that the Judge’s direction on self-defence needed to be regarded as a whole and in the circumstances of this case the misdirection did not result in a substantial miscarriage of justice. He submitted that there was little scope for the jury to have considered, if the appellant was acting in self-defence, whether his motives also included punishment, vengeance, anger or anything unrelated to self-defence. He submitted that if the jury thought there was a reasonable possibility of the appellant’s evidence being true, then he was only acting in self-defence.

DECISION

[35]             In Howard this Court allowed an appeal and ordered a retrial of a count of injuring with intent to injure on the grounds that the Judge misdirected the jury on the law of self-defence and in summing-up the respective cases did not make the appropriate links between the evidence and the law.

[36]In directing the jury in the Howard case, the Judge said:

If you are satisfied beyond reasonable doubt that she did not believe that she was in that sort of danger, you need not go any further. If that is the view that you come to, the Crown will have satisfied you that self-defence is not a reasonable possibility. Bear in mind when you consider this, and it is  implicit in the concept of self-defence, that the Accused acted to meet what she believed to be an existing threat. That is what she has got to do, acted to meet what she believed to be an existing threat. The law does not protect a person from the consequences of acting out of revenge, or retribution, or spite, or anger. If you are satisfied that the Accused believed that the threat had passed, but was acting in retaliation or something of that nature, that is not self-defence. If however you think it is at least a reasonable possibility that she did believe that she was in danger of bodily harm and that she intended to act in self-defence against that danger, then you go onto the third step. The third step is this. Was the force she used reasonable given what  she believed was happening at the time. (Emphasis added).

[37]             In considering that direction, this Court cited the words of s48 of the Crimes Act 1961 as amended in 1981 and said:

It is implicit in the whole concept … that self defence is concerned with meeting future possibilities. It cannot solely take the form of retaliation for past grievances. But it may well be the case that someone who is angry or spiteful may also fear a future assault. Any such additional mindset would not prevent the accused from availing herself of the defence. (para 25)

….

We are of the opinion that the misdirection involved in the second point – the reference to “spite or anger” – when taken with the misdirections involved in the final paragraphs of the summing up (paras [5] and  [6] above), does amount to a miscarriage of justice. The jury may well have been seriously misled in its understanding of self defence. (para 27)

[38]             In the present case, as in the Howard case, the Judge went on to direct to the effect that if the accused believed that the threat had passed, but continued to inflict the blows that would not be self-defence. He said:

The question you may find pertinent, it is entirely a matter for you, is that did he still continue to inflict the blows once he admitted he had the upper hand. You must look at the circumstances as the accused believed them to be. You have to look at this subjectively as to what he thought about the circumstances; as I say you have his evidence and you must consider whether that raises reasonable doubt. Did he at the time he was inflicting the machete blows, did he think he was still in danger having wrenched the rifle away from the deceased. You may think that once the danger is over, one is not acting in self-defence.

[39]             However, because of the Judge’s earlier direction that a person acting under self-defence must act purely out of defence and not for motives of punishment, vengeance, anger etc, the jury could and may have considered that if the appellant had, in addition to an intention to defend himself, an additional motive of punishment or vengeance or anger or a combination of these, then such an additional mindset prevented the appellant from availing himself of the justification of self- defence.

[40]             As stated, Mr Thomas argued that the direction on self-defence needed to be regarded as a whole and that there was little scope for the jury to have considered, if the appellant was acting in self-defence, whether his motives also included punishment, vengeance, anger or anything unrelated to self-defence. However there

was the evidence that the appellant told Detective Inspector Shalfoon that after he wrenched  the  rifle  away  and  when  punches  were  exchanged,  the  echoes  of  Mr Forbes’ words “black bastard” were still ringing in his ears and that made him fight harder. Also, in his evidence the appellant referred to Mr Forbes calling him “a black bastard” while pointing the rifle at him before he grabbed it. He deposed that the rest of the episode was very vague and during the whole of it he was very excited and adrenaline was flowing heavily. He testified that after he tied Mr Forbes and took two bags of cannabis, he kicked him in the stomach saying that that was for calling him a black bastard. Therefore, there was evidence from which the jury  could have considered that Mr Forbes’ “black bastard” taunt affected the appellant from the time he started using force on Mr Forbes until he stopped. Because of such an additional mindset the jury could have thought that because of the Judge’s direction that a person acting under self-defence must act purely out of defence, the appellant was prevented from availing himself of self-defence justification.

[41]             Although the Judge read much more of the accused’s cross-examination than his evidence in chief, he did this fairly and appropriately in our view for the purpose of reminding the jury of the pertinent evidence on the issue of whether the appellant used the machete before or after he had the upper hand. Having considered  the whole of the summing up we consider that the Judge fairly set out the evidence available to support the respective Crown and defence cases and put both cases fairly and correctly.

[42]             However we are of the view that the misdirection that a person acting under self-defence must act purely out of defence was so simple and clear that it may have seriously misled the jury in its understanding of self-defence and caused it to reject self-defence. It therefore may have deprived the appellant of his right to a fair trial and the chance of acquittal.

[43]             The final question, under the proviso to s385(1), is whether the Court is satisfied that no substantial miscarriage of justice has actually occurred as a result of the misdirection on self-defence. If this Court were to conclude that the irregularity in process may have influenced the verdict, and deprived the accused of a chance of acquittal, it could not be satisfied that no substantial miscarriage of justice has

occurred. Here the deficiency in the summing up goes to one aspect of the way that the defence case was put. The issue under the proviso is whether in the circumstances of the trial the irregularity has not prejudiced the appellant because, as it was put in R v McI [1998] 1 NZLR 696,712: this Court is “sure that the jury would without doubt have convicted had the matter…giving rise to the initial miscarriage of justice not been present”. Only if that is the case can it be said that there is no substantial miscarriage resulting from the misdirection on self defence.

[44]             There was strong evidence, called by the Crown, that the appellant had inflicted substantial injury on Mr Forbes. He had been beaten multiply and brutally over most parts of his trunk and had two hack marks on his head from a machete. The severity of the beating and the injuries to the head caused death. As shown by  its verdict (on this point unaffected by the misdirection) the jury rejected the defence challenge that the appellant’s blows were not a substantial and operative cause of death.

[45]             In this context the defence of self defence faced a number of problems at the trial. The appellant’s recollection of his fight with the deceased was vague – he said he recalled “bits and pieces”. In his conversation with Detective Inspector Shalfoon he had said that he had not picked up the machete in the course of the fight until he had assumed the upper hand and during cross-examination he said that, in this respect, he had told the detective the truth. Almost immediately thereafter, however, he changed his position, telling the Crown prosecutor that he had grabbed hold of the machete before getting the upper hand in the fight. At this point he had got the gun off the appellant who no longer had a weapon.

[46]             There was no significant independent evidence supporting a belief by the appellant that he was in immediate danger. He himself could only point to the deceased possibly contemplating an attempt to reclaim the gun.

[47]             In these circumstances the appellant’s credibility was an issue for the jury, in particular concerning his late assertion that he grabbed the machete before he had got the upper hand in the fight. Nevertheless the question of his credibility was a jury issue. There were problems in any event for the defence in relation to the extent of

the force used. When asked why it was necessary to hit the deceased with a machete in the way he did, four or five times, the appellant’s response was “to make sure he doesn’t receive any serious injury. When pressed he added “I was fighting for my life!” The appellant did not tell the police of suffering any injuries himself during  the altercation. Overall the Crown had a strong case that the force used by the appellant in the circumstances was excessive.

[48]             The question however is whether the Court is sure the jury would have undoubtedly convicted the appellant had the Judge not made the error he did concerning the impermissibility of having other motives concurrent with self- defence as the justification for his actions. After considerable thought we have concluded that this high standard has not been made out by the Crown. The accused did not have the benefit of due process and we cannot exclude the possibility that the jury may have decided that, on the appellant’s evidence at trial, his defence of self- defence had not been negatived. The question is not of course whether in the Court’s opinion he was guilty of the murder of Mr Forbes but whether, absent the irregularity, the Court is of the certain view that the jury would have convicted him.

[49]             In a case in which the appellant’s credibility ultimately was the key consideration we accordingly find ourselves unable to conclude that the jury would undoubtedly have convicted. It follows that we cannot exclude the possibility that a substantial miscarriage of justice has occurred and are unable to apply the proviso to s385(1) of the Crimes Act 1961.

[50]             In all the circumstances, and having regard to the seriousness of the alleged offence, and the prospect that there may be a conviction in the event of a retrial, we consider that, despite the delay, the interests of justice require that we direct a new trial.

[51]             We accordingly allow the appeal, quash the conviction and direct that there be a new trial.

Solicitors

Crown Law Office, Wellington