R v Sila

[2009] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/2008
[2009] NZCA 233

THE QUEEN

v

LIPENE SILA

Hearing:20 April 2009

Court:O'Regan, Hugh Williams and MacKenzie JJ

Counsel:P H B Hall and K H Cook for Appellant

B M Stanaway and A M Toohey for Crown

Judgment:5 June 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Table of Contents

Para No

Introduction  [1]
Grounds of appeal  [2]
Principal issues on appeal  [5]
Factual background  [6]
Ruling on self-defence and provocation  [15]
Should self-defence have been left to the jury?  [17]
      Ruling No 8  [20]
      When should self-defence be put to a jury?  [28]
      (a) Circumstances as Mr Sila believed them to be  [32]
      (b) In those circumstances, was Mr Sila acting in self-defence?       [40]
      (c) Was the force used reasonable in the perceived circumstances?  [41]
Should provocation have been left to the jury?  [51]
      Ruling No 8  [53]
      The argument put forward on appeal  [55]
      Our analysis  [64]
Evidence as to Mr Sila’s boxing experience  [66]
Jury deliberation  [69]
Sentence appeal  [76]

Result  [88][88]

Introduction

[1]        After a jury trial at the High Court in Christchurch, Mr Sila was convicted on two counts of murder and eight counts of causing grievous bodily harm with intent to cause grievous bodily harm.  The trial Judge, Fogarty J, sentenced him to life imprisonment, with a minimum period of imprisonment of 17 years for the murder charges and lesser concurrent terms for the other charges.  Mr Sila appeals against both conviction and sentence.

Grounds of appeal

[2]Mr Sila bases his appeal against conviction on three grounds:

(a)The trial Judge erred in fact and law by refusing to allow the defence of self-defence and the partial defence of provocation to be left to the jury;

(b)The trial Judge erred by permitting the Crown to lead evidence about Mr Sila’s boxing experience;

(c)The trial Judge implicitly encouraged or condoned a compromise verdict by allowing the jury to continue to deliberate after they indicated they had reached an impasse.

[3]        Other grounds mentioned in the notice of appeal were abandoned.

[4]        The sentence appeal is pursued on the basis that the minimum period of imprisonment was manifestly excessive.

Principal issues on appeal

[5]        The principal issues on appeal are whether the Judge ought to have allowed self-defence and/or provocation to be left to the jury.  We will deal with the two defences separately. 

Factual background

[6]        Before doing so, it is necessary to traverse the factual background.  We endeavour to do so in neutral terms, but it is right to record that there were over 40 eyewitness accounts given at trial, which differed from each other in a number of respects.  We will return to those conflicts later.

[7]        On 5 May 2007 a party was held at 95 Edgeware Road in the Christchurch suburb of St Albans.  At approximately 10.30 pm, Mr Sila drove his brother, Ben Sila, and two friends, Junior Tai and Faagase Faauiga, to the party in his girlfriend’s red Honda Integra.  Mr Sila and his companions had consumed alcohol prior to driving to the party.  The apparent purpose of their presence was the desire of Ben Sila to start fights.  By the time they arrived, the party had become out of control, with over 800 young people on the property and spilling out onto the surrounding road and footpath.  There was no dispute that a large number of people were actually on the road.

[8]        Mr Sila originally parked the car in Bishop Street, where his passengers alighted and headed towards the party.  Mr Sila then moved the car closer to the party by driving north up Bishop Street and turning left into Edgeware Road.  He parked the car on Edgeware Road close to the Manchester Street intersection, just a few houses away from the party on the opposite side of the street.  Mr Sila, who it appears did not know anyone at the party, remained in the parked car. 

[9]        A short time later a fight broke out at the Manchester Street and Edgeware Road intersection.  There was evidence to suggest the fight was provoked by Ben Sila.  Mr Sila saw his brother being pursued down Edgeware Road by another partygoer, Joseph Muir.  At this point Mr Sila got out of the car and joined the fight, which involved two Crown witnesses, Ben and Ian Hitchcock.  There is conflicting evidence as to whether Mr Sila assaulted anyone.  At some point during the fight, Mr Sila was hit on the back of his head with a bottle (it was unclear if this had been thrown or used as a bludgeon), causing significant bleeding.  The fight then ended and Mr Sila began to walk back to the car with a singlet held to his head.

[10]      Mr Muir, who had not been able to catch Ben Sila, was returning back down Edgeware Road towards the party and recognised Mr Sila.  Mr Muir shoulder-charged Mr Sila at the driver’s side door of the Honda, causing Mr Sila to fall over.  Once Mr Sila had regained his feet, Mr Muir punched Mr Sila, possibly more than once.  One of Mr Sila’s companions, Mr Faauiga, intervened and attacked Mr Muir. 

[11]      There is some dispute as to the details of what happened next.  In broad terms, it is accepted that at some point Mr Sila became involved in the fight between Mr Muir and Mr Faauiga.  There was conflicting evidence as to whether Mr Sila punched Mr Muir or restrained him from hitting Mr Faauiga.  After this, Mr Sila got into the driver’s seat of the car, possibly while being grappled by some young men, and Mr Faauiga got into the front passenger seat.  The car was then seen to accelerate heavily away from where it was parked, towards the address at 95 Edgeware Road.

[12]      The evidence indicates that the car was likely to have been driven at full throttle and maximum acceleration for most, if not all, of the journey along Edgeware Road until it reached 95 Edgeware Road.  The car reached 95 Edgeware Road within seven or eight seconds, and was travelling at that point at a minimum speed of 60 km/h or possibly even faster.

[13]      The first people who were struck by the vehicle were bystanders who had gathered near the car at the time it started moving.  Benjamin Luxton (count 1 – grievous bodily harm) was one of these.  As the car’s speed increased, it crossed the centre line and went across to the right hand side of the road, moved back towards the centre, where Jessica Shuker (count 2 – grievous bodily harm) was hit, then moved suddenly back to the right hand side of the road outside 95 Edgeware Road.  It was at or just beyond that point that the car hit the two deceased, first Hannah Rossiter and then Jane Young (counts 5 and 7 – murder).  Both were on the right hand side of the centre line.  Another six people were seriously injured after being hit by the car in the vicinity of this location (the remaining grievous bodily harm counts).  In all, 28 people were struck by the car in the seven or eight seconds it took to travel the seventy metres from its parking place near the Manchester Street and Edgeware Road intersection to the area outside 95 Edgeware Road.

[14]      Once Mr Sila drove past 95 Edgeware Road, he continued down the road, turned right at the next intersection and drove home.  During the journey home Mr Sila had two further accidents.  The police apprehended Mr Sila at his home approximately three hours later.  Mr Sila co-operated with the police when apprehended.

Ruling on self-defence and provocation

[15]      Counsel for Mr Sila, Mr Hall, said that he opened the defence case at trial on the basis that evidence would be led which raised the defence of self-defence (to all counts) and the partial defence of provocation (to the murder counts) (or added to the evidence already given that related to those defences).  The defence called twelve witnesses, but Mr Sila himself did not give evidence as to what he believed the circumstances to be.  At the conclusion of the Crown and defence cases, Fogarty J made a ruling as to whether self-defence and provocation should be withdrawn from the jury.  The Crown’s position was that these defences should be left to the jury.  That position was based on pragmatism, as the Crown was concerned about the likelihood of an appeal if the defences were withdrawn.  Counsel for the Crown at both the trial and on the appeal, Mr Stanaway, confirmed this position at the hearing of the appeal.  In his submissions to this Court, he argued that the position taken by the Judge was nonetheless legally correct.

[16]      Fogarty J held that it would be impossible for a jury to entertain a reasonable doubt that Mr Sila was acting in self-defence, and that the grounds of provocation were not made out.  As a result, he ruled that neither defence was to be left with the jury: Ruling No 8 CRI-2007-009-006120 19 May 2008.  That ruling is at the heart of both of the principal issues in this appeal.

Should self-defence have been left to the jury?

[17]      Section 48 of the Crimes Act 1961 provides:

Self-defence and defence of another

Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use. 

[18]      It is customary to approach an analysis of self-defence by asking and answering the following three questions (see, for example, R v Bridger [2003] 1 NZLR 636 at [18] (CA)):

(a)What were the circumstances as the accused believed them to be?

(b)In those circumstances, was the accused acting in the defence of himself or another?

(c)Was the force used reasonable against the circumstances as the accused believed them to be?

[19]      We will approach our analysis under those headings.  Before we do so, we summarise Ruling No 8 in relation to self-defence and summarise the legal test to be applied to a decision as to whether self-defence should be taken away from a jury.

Ruling No 8

[20]      The Judge said he would deal with self-defence separately in respect of each of the ten counts with which Mr Sila was charged.  He noted that the test under s 48 includes an assessment of the circumstances as the accused believes them to be, and that a line must be drawn between these circumstances and the accused’s reaction.  He also said he would endeavour to draw this line as favourably as he could to the accused. 

[21]      The Judge accepted that Mr Sila believed his life to be in danger.  That finding was based on statements made by Mr Sila to the police in a videotaped interview.  The Judge noted (at [11]) that Mr Sila must have believed that this danger related to the risk of being beaten up by the crowd, who may have attacked Mr Sila with weapons such as bottles.  The Judge observed this was not the same as a situation where an accused was faced with a person holding a pistol or knife: Mr Sila was a big man, a trained boxer and a rugby player; he had just been in three fights which he survived, so he was not in that sense under an immediate threat to his life.  Nonetheless, the Judge considered that it was open to the jury to accept that Mr Sila may have believed that if he were attacked by a large number of people he might end up dead, even if that belief was irrational. 

[22]      The Judge noted that the jury would need to accept that, “in the circumstances as Mr Sila reasonably believed them to be”, the Crown could not “negate that it was possible for Mr Sila to decide to cause grievous bodily harm to people in front of the car, whether they were aggressive or innocent, in order to escape”: at [15]. We interpolate here that the Judge was in error in referring to the circumstances as Mr Sila reasonably believed them to be.

[23]      The Judge continued:

[16]     In my view it would be impossible for the jury to entertain such a reasonable doubt as to that it might be reasonable in those circumstances to accelerate a powerful heavy car directly into a roadway on which people stood, some of whom were clearly innocent, with the intent of causing them grievous bodily harm in order to escape the angry element of the crowd.

[17]     I have struggled a little in the argument with the application of the test in the Court of Appeal which I read out before for fear that I was simply applying my subjective judgment that it would be impossible for the jury to entertain a reasonable doubt that the accused had acted in defence of himself in terms of s 48.  As counsel will be aware, I am struggling with the concept that it could be reasonable and the jury could think it reasonable for innocent persons to be the subject of a deliberate intent to cause them harm in order for Mr Sila to escape in these circumstances.  However, I have for some time been of the view that it would be impossible for the jury to do this in respect of the subsequent collision with Miss Rossiter and Miss Young.  In the course of argument I have entertained more seriously the prospect that a jury might consider it reasonable for innocent persons to suffer grievous bodily harm in the circumstances as Mr Sila believed them to be.  Having entertained that doubt I have resolved it in my mind that a jury properly directed could not come to that conclusion, could not come to that possibility in examining whether or not the Crown had proved the negative in s 48 as I set out above.

[24]      In addition, the Judge had earlier observed (at [12]) that Mr Sila had a number of options such as driving more slowly, staying where he was within the car, escaping out the other side of the car or tackling the men threatening him.

[25]      Having determined that it would be inappropriate to leave the possibility of self-defence to the jury in relation to the first count (Benjamin Luxton), the Judge then considered the subsequent counts in the order in which the events occurred.  He noted that by the time the later victims were hit the car was travelling at high speed.  He did however, note the evidence that the car had been bottled along the way and that this could have occurred before the second victim, Jessica Shuker, was hit. 

[26]      The Judge said (at [21]) it was unsupportable on the facts that Mr Sila could have apprehended that everybody in front of his car was an aggressor, so the issue for the jury was whether a man believing his life is at risk is entitled in self-defence to deliberately put the lives of innocent people at risk.  He concluded that it would be impossible for the jury to entertain a reasonable doubt that Mr Sila was acting in self-defence in a reasonable manner from the moment immediately before he hit Ms Shuker until he struck the final victim.

[27]      The Judge’s ruling was given orally, and perhaps for that reason does not address the issues in light of the three questions highlighted earlier, or at least not in sequence.  Mr Hall criticised a number of aspects of the ruling.  We have found it more productive to approach the arguments put to us by counsel on the appeal afresh, rather than undertaking a critique of Ruling No 8.

When should self-defence be put to a jury?

[28]      Self-defence should be left to the jury where the evidence raises a credible or plausible narrative which might lead the jury to entertain a reasonable possibility of self-defence: R v Wang [1990] 2 NZLR 529 at 534 (CA). In deciding whether there is a credible or plausible narrative, the judge must consider the matter on the view of the evidence most favourable to the accused: R v Kerr [1976] 1 NZLR 335 at 340 (CA). These principles were correctly identified by Fogarty J: Ruling No 8 at [5] and [7].

[29]      In Bridger a Full Court of this Court considered the role of the trial judge when assessing whether self-defence should be left to the jury. Counsel had submitted that the judge should assess whether, in the circumstances as the accused perceived them, the accused was acting in the defence of himself or another (questions (a) and (b) identified above at [18]) but that the judge should leave the question of whether the force was reasonable (question (c)) for the jury.

[30]      The Court rejected this submission, saying (at [21]):

This Court in Wang rejected an argument that what amount of force is reasonable in the circumstances in the defence of oneself or another is always a question for the jury in a jury trial and never a point of law for the Judge. It accepted that in some cases it would be open to the trial Judge to conclude that the facts were not capable in law of giving rise to a possible defence (justification may be a better word) of self-defence. In our view the consideration of those facts may be directed to both the nature and the extent of the force used by the accused. If the Judge concludes that a properly directed jury could not possibly think that an accused was responding reasonably to the circumstances which he or she perceived, the Judge may withdraw consideration of self-defence from the jury.

(Emphasis added.)

[31]      In other words, the trial judge must make an assessment as to all three questions.  We now turn to those three questions and evaluate each in turn.

(a)      Circumstances as the appellant believed them to be

[32]      We have carefully considered the evidence of what occurred before Mr Sila got into his car and accelerated away.  As we noted above at [6], there is considerable conflict in the evidence, which is not surprising given the traumatic events, the fact that many witnesses had been drinking, and the delay in approaching some witnesses after the events occurred.  In those circumstances, there is room for considerable dispute about what happened. 

[33]      As mentioned earlier, Mr Sila did not give evidence at his trial, so the jury did not have the benefit of trial testimony from him about his perception of the situation.  The defence relied on the evidence of those at the scene, referred to above, as well as the videotaped interview which Mr Sila underwent soon after he was apprehended by the police.  This interview was conducted in English, though Mr Sila, who had relatively recently arrived in New Zealand from Samoa, spoke English poorly. 

[34]      There is also no doubt that some of the statements made by Mr Sila during this interview were untrue.  Mr Hall said this may have been a result of confusion caused by language difficulties and/or mild concussion.  Mr Stanaway said the fact that some of what Mr Sila said was untrue called for caution about accepting the statements.  That may be so (and would have been an issue for the jury) but it is of much less significance in a context where the yardstick is the plausibility of the account, not its correctness. 

[35]      The defence relied in particular on statements made by Mr Sila during the interview that he perceived himself to be in danger and drove away to “save himself”.  For example, he said that he drove “to save myself”, “to save myself from death”; he stated he was “nervous, I was scared”, and that he did not “wanna stay there if any people gonna hit me”.

[36]      The general tenor of the defence argument is that Mr Sila had witnessed extreme violence, was panicked, was scared for his life and thus decided that the best thing to do would be to escape from the situation.  He put his foot down to the floor, to get out of the situation as soon as possible, and in the process he tried to provide a warning and minimise damage by tooting, having his headlights on and by driving as to avoid hitting people.  Mr Hall said “panic” was a fair description of Mr Sila’s state though Mr Sila said only that he was “scared”.  But his limited English may have been a factor here.

[37]      The following extracts from Mr Sila’s interview with Detective Dow tell of his perception of the situation and his state of mind:

Sila: I go home because I was ah heaps of blood on my but I… I try to save myself so I try to save myself but I, yeah just to hear the peoples on the road. I was driving I not stop

…

Dow: Why did you not back down the road. Why did you go towards the people. Why didn’t you do a u-turn and go the other way

Sila: Whats a, whats a (inaudible) why I dunno, scared, (shrugs shoulders) nervous

…

Sila: So if I save myself from death so other people die

Dow: Pardon

Sila: Just why the people die, cos I drive safe for myself so but its no good the thing I do it (shakes his head)

…

Dow: When you were driving away did you try and avoid people, hitting people on the road

Sila: Yea, it was through the hole

…

Dow: How many people were around then [before you got in the car]

Sila: Before too many, before I get in, bef bef I was watching the fight, too many just why I no have a fight, too many people….

…

Dow: [When you were driving off] what was running through your head

Sila: Nervous, I was scared.

Dow: You were scared.

Sila: Yeah. I was a feel the blood on my shoulders.

Dow: What were you thinking though as you were driving through the people and they were, you were, hitting them

Sila: What am I think.

Dow: Nothing.

Sila: Nothing. I don’t mean the bad way I was drive off from there. I was drive off from there. I don’t wanna stay there, I don’t wanna stay there if any people gonna hit me.

Dow: Were you angry when you left.

Sila: Yeah (nods head)

Dow: You were angry

Sila: Very angry

Dow: What were you angry at

Sila: Just at my (indicates to his head)

Dow: Because someone had hit you

Sila: Hit me and the car

Dow: And because they were.

Sila: Yeah.

Dow: Hitting your brother.

Sila: Yeah.

Dow: And his friend.

Sila: Yeah yeah.

Dow: How angry were you.

Sila: (Inaudible) No I was angry.

Dow: Mmm. Angry enough to run over people on the road.

Sila: But I don’t mean that I come back I there when too many peoples in
there.  Like I don’t know, angry.

Dow: What were you feeling like when you were angry, what was (SILA
says something but indistinguishable) what was going through your
head. Were you angry at anyone specifically.

Sila: No (shakes his head).

Dow: That you could see on the road.

Sila: No (shakes his head).

[38]      As the authorities cited demonstrate, a Judge determining whether to leave self-defence to the jury must do so on the basis of the most favourable version of the facts from the accused’s point of view, without seeking to resolve evidential disputes.  On appeal, we must take the same approach.  Looking at the evidence on that basis, the following significant features emerge:

(a)Mr Sila left the car and became involved in the fighting instigated by his brother, but only in order to help his brother.

(b)He was hit on the head with a bottle and injured.

(c)He returned to the car and was shoulder charged, then punched by Mr Muir.

(d)He then intervened in the Muir/Faauiga fight to assist Mr Faauiga.

(e)He ran back to the car, being chased and possibly grappled by some men.  There was a crowd around the car and some fighting was going on.

(f)There were people behind the car who would have been in the path of the car if it had done a u-turn.

(g)There were also people in Manchester Street who would have been in the path of the car if it had turned left into Manchester Street instead of proceeding up Edgeware Road.  Mr Sila said he did not know that a left turn into a side street was a possibility.

(h)Mr Sila then started the car and accelerated at full throttle along Edgeware Road.

(i)The car was attacked, including with bottles.  This started either just before or just after it started moving.  One hit the windscreen which caused “starring”, making it difficult to see through.  At some point the rear and side passenger windows were hit too.

(j)Mr Sila was scared and also angry at the people who had hit his brother.  But he was not angry at the people he could see on the road (ie in front of the car).

(k)The car remained at full throttle until it hit Miss Young and Miss Rossiter (at which time it was going at 60 km/h or faster) and afterwards, with perhaps one instance of momentary braking.

(l)The car lights were on.  Mr Sila said he tooted the horn of the car.

(m)The car hit people throughout its journey (and Mr Sila knew this) but did not hit any parked cars or other objects.

(n)Mr Sila steered the car onto the wrong side of the road – he said with intent to miss people, contrary to the Crown case that it was with intent to hit them.  The car veered back towards the centre of the road.  and then swerved sharply to the right just before it reached the roadside outside 95 Edgeware Road (where Miss Young and Miss Rossiter were hit).

[39]      We emphasise that the above version does not involve findings of fact on our part: it is the most favourable view of the evidence from Mr Sila’s point of view.  It is against that version of events that the decision as to whether self-defence should be left to the jury needs to be made.  That is to be distinguished from the task of the jury where the defence is left for their consideration, which proceeds on the less artificial basis of the actual factual findings the jury makes.

(b)      In those circumstances, was Mr Sila acting in self-defence?

[40]      It seems clear from the comments made by Mr Sila in his police statement, in particular that he drove “to save myself”, that the jury could reasonably conclude that he was acting in self-defence.  Mr Hall also suggested, but did not press, the possibility that defence of another could have been an available defence, because Mr Sila may have also been defending Mr Faauiga, who was in the car with him.  Mr Sila denied in his interview that Mr Faauiga was in the car, which did not provided an auspicious foundation for that defence.  We do not see this alternative adding anything to self-defence and given the lack of evidential support for it, we put it to one side.

(c)       Was the force used reasonable in the perceived circumstances?

[41]      For self-defence to be made out it must be shown that the defensive force used was reasonable (an objective standard) in the circumstances as perceived by the accused: Wang at 534. For self-defence to have been removed on that basis that this limb was not satisified would require an assessment by the judge that the “jury could not possibly think” that Mr Sila was “responding reasonably to the circumstances” as he perceived them: Bridger at [21].

[42]      What is reasonable force will depend on the imminence and seriousness of “the attack”.  These elements were discussed in Wang (at 535 – 536):

But what is reasonable force to use to protect oneself or another when faced with a threat of physical force must depend on the imminence and seriousness of the threat and the opportunity to seek protection without recourse to the use of force. There may well be a number of alternative courses of action open, other than the use of force, to a person subjected to a threat which cannot be carried out immediately. If so, it would not be reasonable to make a pre-emptive strike.

[43]      In R v Whyte [1987] 3 All ER 416 the English Court of Appeal similarly stated (at 418):

A man who is attacked may defend himself, but may only do what is reasonably necessary to effect such a defence. Simply avoiding action may be enough if the circumstances permit. What is reasonable will depend on the nature of the attack. If it is a relatively minor attack, it is not reasonable to use a degree of force which is wholly out of proportion to the demands of the situation. But if the moment is one of crisis for someone in imminent danger, it may be necessary to take instant action to avert that danger.

[44]      This Court recently considered a case with a considerable degree of similarity to this case: R v Gardner [2009] NZCA 113. In that case the appellant had driven his car at a group of people near where his friend was being attacked (but not at the group of attackers) at around 50 – 60 km/h. The first time he did this the car struck and killed a man and injured others. He then turned around and did it again, killing a second person. He said he did this to defend his friend who was under attack. Defence of another (also under s 48 of the Crimes Act) was left to the jury in that case.

[45]      One of grounds on appeal against conviction was that the trial judge erred in addressing the jury in relation to provocation before addressing defence of another.  Having dismissed this ground on the basis that there was no possibility that the jury would have been left in confusion by this ordering, Arnold J for the Court noted (at [47]):

Quite apart from this, it is difficult to see how “defence of another” could have succeeded in this case. Section 48 of the Crimes Act requires that the force used be reasonable in the circumstances as the offender believed them to be. While the “circumstances” element is to be assessed subjectively, what is “reasonable” is to be assessed objectively: R v Wang [1990] 2 NZLR 529 at 534 (CA). It is difficult to see how the appellant’s response to the threat that he perceived [his friend] to be facing could be characterised as “reasonable”.

[46]      There is no doubt that it is equally difficult in this case to see how Mr Sila’s response to the threat that he perceived himself to be facing could be characterised as reasonable.  Mr Hall acknowledged that self-defence would have been a difficult defence to run in the present case.  However, the question for us is whether, taking the most favourable view of the facts, a properly directed jury could not possibly think Mr Sila was responding reasonably to the circumstances as he perceived them.

[47]      Mr Hall said this assessment had to be made in the light of the panicked reaction of Mr Sila.  Although driving a car at full throttle into a crowded street may seem out of proportion to the danger Mr Sila was in, he was taking instant action to avoid imminent danger.  He had been injured by a bottle and shoulder-charged by Mr Muir, so escape on foot was dangerous.  Driving the car at lower speed and with proper warning to those on the road did not seem to be considered. Although the Crown argued at trial that it was open to Mr Sila to either perform a u-turn or turn left into Manchester Street to avoid the crowd at 95 Edgeware Road, Mr Sila did not seem to be aware of these possibilities.

[48]      Allowing for the difficulties that all those possibilities raised, we still do not see how any jury could have found that it was reasonable for anyone, no matter how scared, to drive a car at full throttle into a crowded street, and to continue to do so even after numerous people had been hit by the car.  His response to the danger he perceived himself to be facing was completely disproportionate to the level of danger.  It was obvious that the course of action he took would lead to numerous people being hit and seriously injured or killed.  Mr Sila admitted that he was angry as he drove off, as well as scared.  His actions appear to reflect that anger.

[49]      We see this case as similar to Bridger, where this Court upheld a decision to remove self-defence from the jury.  In that case, this Court evaluated the evidence of what occurred and reached the view, as the trial Judge had, that the action taken by the appellant in response to the threat he perceived could not conceivably be regarded as the use of reasonable force in self-defence.  The facts of that case were quite different from those of the present case, but the evaluation undertaken by the Court was similar to what we have done.  In the end, the Court reached the view that it was inconceivable that the response could be seen as reasonable, as we have done in this case.

[50]      We conclude that the jury could not possibly have thought Mr Sila was responding reasonably to the circumstances which he perceived.  This ground of appeal therefore fails.

Should provocation have been left to the jury?

[51]      As noted earlier (at [16][16]), the Judge also took the partial defence of provocation away from the jury.  Mr Cook, who argued this aspect of the appeal for the appellant, submitted that the Judge had been wrong to do so.

[52]      Provocation is a partial defence to murder.  The relevant statutory provision is s 169 of the Crimes Act, which says:

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.

Ruling No 8

[53]      The Judge dealt with this only briefly, after he had dealt with the defence of self-defence more fully.  The Judge said that if provocation were to succeed it had to be pursuant to s 169(6), which refers to the situation where an offender, under provocation by one person, kills another person by accident or mistake.  The Judge said there was no basis on which it could be said that Mr Sila was driving the car towards the position of the two deceased, Miss Young and Miss Rossiter, for the purpose of attacking the persons who had provoked him.  In effect, the Judge rejected the argument that Miss Young and Miss Rossiter were sufficiently closely connected with Mr Sila’s provokers (those involved in the fighting before Mr Sila got into the car) for a s 169(6) argument to succeed.

[54]      Mr Cook accepted that the Judge’s decision in respect of the argument recited by the Judge, relating to provocation before Mr Sila entered the car, was correct.  The correctness of this aspect of the ruling has been confirmed by the decision of this Court in R v Gardner at [64] – [69], which was released after the Judge’s decision in the present case.

The argument put forward on appeal

[55]      However, Mr Cook said that the defence had advanced provocation on an alternative basis which had not been dealt with by the Judge, and which was not ruled out by the decision in Gardner.

[56]      That alternative argument can be summarised as follows:

(a)Further provocation had arisen while Mr Sila was driving the vehicle towards the group which included Miss Young and Miss Rossiter: there was evidence that a bottle was thrown at the car which “starred” the windscreen, and the person who threw the bottle must have been in front of the vehicle, and thus in the same vicinity as Miss Young and Miss Rossiter.  He said that this could have been found by the jury to be a new provocative act.

(b)The person who provoked him by that act must have been physically proximate to Miss Young and Miss Rossiter. 

(c)This meant Miss Young and Miss Rossiter were within the same group as the provoker, and therefore sufficiently associated with the provoker that the provoker’s conduct could be attributed to them. 

[57]      The issue was, therefore, whether the deceased were sufficiently associated with this later provocative conduct so that the provocative conduct could be associated with them.  Mr Cook emphasised that what the trial Judge needed to decide was whether a jury could have found such an association: R v Rongonui [2000] 2 NZLR 385 at [233] (CA) per Tipping J.

[58]      Mr Cook relied on three decisions of this Court, namely R v Paniani [2000] 1 NZLR 234, R v Su CA407/00 5 July 2001 and R v Turaki [2005] 3 NZLR 329, in support of his argument that there was a plausible narrative of provocation along the lines summarised above.

[59]      In Paniani at [35], this Court said that normally provocation must come from the person killed but in some circumstances the acts of a third party could be “sufficiently associated with the deceased so as to be her acts”.

[60]      In Su at [44], this Court amplified Paniani, referring to association being sufficient “where the acts of the third party are so closely related by time, place, or circumstance as to be effectively the acts of the victim or, alternatively, such that they may be viewed as supporting or continuing the victim’s own acts”.

[61]      In Turaki, this Court said at [77] that where the victim is a party to the provocation (adopting the same definition of “party” as is used in relation to offenders under s 66 of the Crimes Act), that may be sufficient for the provoker’s act to be treated as the victim’s act for the purposes of s 169. However, the Court noted at [79] that being merely a party to provocative conduct may not suffice in cases where the victim’s level of involvement in the provocative conduct is slight. In such cases, there may be an insufficiently close relationship in time, place and circumstances between the words and conduct of the third party and those of the victim.

[62]      Mr Cook argued that, if the jury had accepted that a bottle was thrown at the car from the group in which Miss Young and Miss Rossiter were located, that provocative act could be treated as their act for s 169 purposes.

[63]      Applying this legal analysis, Mr Cook argued that the plausible narrative was as follows:

(a)Mr Sila had been provoked before driving off, causing him to lose his self-control.  He suggested that Mr Sila was in a blind panic.  Relying on R v Pita (1989) 4 CRNZ 660 at 665, he said this led Mr Sila to over-react when a bottle was thrown at the car from the group that included Miss Young and Miss Rossiter, which meant that the bottle throwing was a fresh act of provocation sufficient to deprive an ordinary (but panicking) person of the power of self-control.

(b)The bottle throwing did in fact deprive Mr Sila of self-control.

(c)The bottle-throwing thereby induced Mr Sila to drive into the group of people on the roadside that included Miss Young and Miss Rossiter.

(d)Miss Young and Miss Rossiter were so closely associated with the bottle-thrower that the bottle-thrower’s act could be treated as their act under the Turaki test.

Our analysis

[64]      We see a number of difficulties with this line of argument.  In particular:

(a)There is no evidence from Mr Sila supporting the proposition of loss of self-control induced by the bottle throwing.  He did not give evidence to this effect (or at all) at the trial.  His video interview contains references to being scared and being angry, but in a context where he indicated the fear and/or anger arose from the events before he drove off (and therefore from a provoker or provokers behind the car as it headed up Edgeware Road).  There is nothing attributing anger or fear to the bottle-throwing and he expressly says he was not angry with the people he saw on the road.  Panic is never mentioned, as indicated earlier.

(b)There is some evidence of a bottle being thrown at the car windscreen (heavily counter-balanced by evidence to the contrary) that could have been accepted by the jury.  The most favourable finding that could be made is that the bottle or bottles came from in front of the vehicle in the general area where Miss Young and Miss Rossiter were standing.  The car then continued for some distance to the area where Miss Young and Miss Rossiter were hit.  However we are satisfied that no jury could conclude that this coincidence of location could make Miss Young and Miss Rossiter parties to the provocation or so closely associated with the provokers that the provokers’ acts could be seen as their acts.

(c)Nor is there any evidence to indicate it was the bottle throwing that induced Mr Sila to drive headlong into the group of people including Miss Young and Miss Rossister.

[65]      In short, the provocation theory advanced on appeal does not have a proper evidential foundation.  If the Judge had considered this argument he would have been right to reject it.  We are satisfied that there was not a plausible narrative of provocation and that there was no proper basis for it to have been left to the jury.  This ground of appeal fails.

Evidence as to Mr Sila’s boxing experience

[66]      The Crown sought to adduce evidence at trial that Mr Sila was a trained amateur boxer.  Mr Hall opposed the evidence being admitted on the basis that the probative value of the evidence was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding: s 8(1) of the Evidence Act 2006. 

[67]      Fogarty J held the evidence had probative value, as it indicated Mr Sila’s state of mind and how he might have reacted to the fights that occurred immediately prior to entering the car.  Fogarty J held that this outweighed the risk that the evidence would unfairly prejudice the proceedings, particularly as he would give a direction to the jury as to the appropriate inferences that could be drawn from the evidence, which would minimise any prejudice.  As a result, he held that the evidence was admissible.  Mr Sila appeals against this ruling on the basis that the evidence was not relevant and that the s 8 test was not satisfied.

[68]      We see no error in the Judge’s assessment.  The prejudicial effect of the evidence was not significant, given that the jury had already heard evidence relating to Mr Sila’s involvement in the fighting that occurred prior to Mr Sila starting the car and accelerating up Edgeware Road.  While the probative value was also relatively minor, we do not consider the prejudicial effect outweighed the probative value of the evidence.

Jury deliberation

[69]      The jury retired on Wednesday 21 May 2008 at approximately 11.10 am.  On Friday 23 May at 9.35 am the jury asked two questions:

What happens when an impasse is reached?

Are we please able to have guidance as to steps to take to carry on with our deliberations?

[70]      The questions were answered at 11.11 am as follows:

Judges always hesitate to discharge a jury, because it usually means that the case has to be tried again before another jury and experience has shown that juries are often able to agree in the end if given more time.

[71]      That answer was given after a discussion in chambers during which Mr Hall submitted to the Judge that the model Papadopoulos direction should be given.  A draft answer was circulated to counsel and originally included the phrase “this is a difficult case”.  However, with the agreement of counsel, this phrase was removed. 

[72]      Mr Hall submitted on appeal that a Papadopoulos direction (in the form specified in R v Accused [1988] 2 NZLR 46 at 59 (CA)) ought to have been given, and that the Judge should have deferred any direction to the jury of what might occur in the event that the impasse could not be resolved. He said subsequent events (later that day the jury advised that the impasse had been overcome) suggested that dissenting jurors had given in after hearing that a retrial would occur if there was a hung jury.

[73]      With respect to Mr Hall, that suggestion is pure speculation and, if anything, inconsistent with what actually occurred.  The jury deliberated for the rest of the Friday, then viewed again the video interviews of Mr Sila on the Saturday morning and indicated they had verdicts at 12.50 pm on the Saturday.

[74]      The answer which the Judge gave to the jury’s question included wording which features in the R v Accused direction, and did not include anything that is not in that direction.  While it may have been preferable for the whole direction to be given, we see no cause for concern about the course the Judge followed.

[75]      This ground of appeal fails.

Sentence appeal

[76]      The sentence appeal was advanced on the basis that the 17 year minimum period of imprisonment was manifestly excessive.

[77]      Section 104 of the Sentencing Act 2002 requires that a court impose a minimum period for imprisonment of at least 17 years in certain circumstances, unless it would be manifestly unjust to do so.  That section applied in the present case because Mr Sila had been convicted of two or more counts of murder: s 104(h).

[78]      As Fogarty J noted, s 104 does not distinguish between a deliberate killing or a reckless murder.  However, he found that the sentencing exercise should be approached on the basis that the jury must have found Mr Sila guilty of a reckless murder, that is on the basis that Mr Sila meant to cause to the person killed bodily injury known by him to be likely to cause death, and was reckless as to whether death ensued or not: s 167(b) of the Crimes Act.

[79]      The focus of the argument in the High Court, and again before this Court, was whether it would be manifestly unjust for Mr Sila to be sentenced to a minimum term of imprisonment of 17 years.  In the High Court counsel for Mr Sila argued that the minimum term should between 10 and 14 years, while the Crown sought a minimum term of 20 years. 

[80]      Having determined that the murder was a reckless murder rather than a deliberate killing in terms of s 167(a) of the Crimes Act, the Judge noted that Parliament did not distinguish in s 104 of the Sentencing Act between deliberate and reckless murder, and that the finding that this was a reckless murder did not, in itself, provide a justification for lowering the minimum term below 17 years.

[81]      The Judge also rejected other factors which were said to justify lowering the minimum term, such as the prior assaults on Mr Sila before he got into the car, the short duration of the incident, the expressions of remorse (which the Judge said he did accept) and the favourable probation report.  He did not consider that these factors were such as to make it manifestly unjust to impose a minimum term of 17 years.

[82]      The Judge also rejected the Crown’s argument that the minimum term should be higher than 17 years, essentially because he had rejected the Crown’s contention that the case involved deliberate murder.  The Crown has not appealed against the sentence imposed by the Judge.

[83]      On behalf of the appellant, Mr Cook essentially renewed the arguments which had been made to the High Court Judge as to why a minimum term of 17 years was manifestly unjust. 

[84]      For the Crown, Ms Toohey argued that the Judge was correct to find that a seventeen year minimum period of imprisonment was not manifestly unjust.  She relied on the decision of this Court in Gardner (decided after the sentencing of this case), where a minimum period of eighteen years and six months was upheld for similar offending.  She said the offending in that case could not be said to be more serious than that in the present case.

[85]      We have carefully considered Mr Cook’s arguments, but in our view the Judge correctly analysed the factors relied on by Mr Sila and applied s 104 appropriately.  Although the Judge found that the jury’s verdict was based on a finding of recklessness rather than deliberate killing, we agree with the Judge that this is not a distinguishing factor in terms of s 104, though it may be relevant to the s 104 decision when combined with other factors. 

[86]      In the present case, the offending was extremely serious.  The consequences for the victims were catastrophic.  This is clear from the victim impact statements, not only from the families of Miss Young and Miss Rossiter, but also the others who were hit and seriously injured, many of whom have had severe disruptions to their lives and face ongoing problems.  We see the offending in this case as being at least as serious as Gardner, particularly as the consequences of the offending were not only the two deaths, but also serious injuries to a number of others.  This Court noted in Gardner at [87] that the minimum period of imprisonment imposed in that case was lower than in other double homicide cases. It referred to the review of other double homicide cases in R v Cui CA333/05 28 September 2006 – in all the cases discussed in Cui, minimum periods of imprisonment of 20 or more years were imposed.

[87]      We see no error in the Judge’s interpretation of s 104 or its application to the facts of this case.  The sentence was within the range available to the Judge – if anything, it was at the low end of the range.  We therefore dismiss the appellant’s sentence appeal.

Result

[88]      The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington