R v Smail
[2011] NZCA 403
•23 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA561/2010 [2011] NZCA 403 |
| BETWEEN ERIC NEIL SMAIL |
| AND THE QUEEN |
| Hearing: 12 July 2011 |
| Court: Randerson, Potter and Ronald Young JJ |
| Counsel: J M Ablett-Kerr QC and S A Saunderson-Warner for Appellant |
| Judgment: 23 August 2011 at 11.30 a.m. |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against the sentence of life imprisonment is dismissed.
CThe appeal against the minimum period of imprisonment is allowed. The minimum period of imprisonment of 14 years is quashed and a period of 13 years imposed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Table of Contents
| Para No | |
| Introduction | [1] |
| Background | [3] |
| Conviction appeal | [8] |
| (a) Trial venue | [8] |
| (b) Cross-examination point | [12] |
| (c) Special characteristics | [21] |
| (d) Provocation, hot blood and throes of passion | [45] |
| (e) Diagnostic evidence | [68] |
| Appeal against sentence | [76] |
Introduction
Mr Smail appeals his conviction for murder and his sentence of life imprisonment with a minimum period of imprisonment of 14 years. At his trial presided over by Chisholm J the appellant admitted he had killed Mr Keith McCormick but said he did so while provoked and, therefore, should only be convicted of manslaughter.
As to his appeal against conviction there are five grounds:
(a)it was not possible for the appellant to have a fair trial in Christchurch and the trial should have been held elsewhere;
(b)the trial Judge wrongly allowed the appellant to be cross-examined regarding his refusal to be examined by a Crown appointed psychiatrist;
(c)the trial Judge erred in refusing to allow two characteristics of the appellant to be presented to the jury as “special characteristics”;
(d)the Judge misdirected the jury as to third party provocation when he said “provocation could only apply when the killing was committed in hot blood and while the accused was still in the throes of passion”;
(e)the Judge wrongly refused to allow the defence psychiatrist to refer in evidence to what he had been told by the appellant’s mother.
Background
The appellant and the deceased were long time friends. In 1971 the deceased had an accident and became a paraplegic confined to a wheelchair. In 2000 the deceased fell from his wheelchair and suffered further injuries to his spine which left him a tetraplegic.
For some months after the accident in 2000 the appellant acted as the deceased’s night carer. In November 2004 the appellant shifted into the deceased’s house in Wakefield Street, Christchurch and became his night carer Monday to Thursday nights.
In early 2005 the deceased became seriously ill with kidney stones. He was admitted to hospital. After he returned to Wakefield Street the deceased was bedridden for a period. The appellant continued to look after the deceased in the evenings.
In July 2005 the appellant obtained employment during the day. On 28 July he went to work but because of the weather his work was cancelled. The appellant and some co-workers went to a tavern at about 10.00 am and began drinking. By early afternoon they went to another tavern and continued drinking. By late afternoon the appellant went to another hotel. He was due to start his night shift with the deceased at about 5.00 p.m.
At about 6.00 pm the appellant was given a ride to his home at Wakefield Street by some friends. The description of what happened there is taken from the appellant’s statement to the police. He said that when he arrived home he went to the lounge where the deceased was. The victim said to him “What fucking kind of time is this?” The appellant said “Keith it doesn’t matter”. He walked into the kitchen, picked up a kitchen knife and returned to where the deceased was seated holding the knife behind his back. He then stabbed the deceased in the neck and cut his throat. He then kissed the deceased, told him he loved him and waited until he died. After the killing he rang a number of friends and family to tell them what he had done.
Conviction appeal
(a) Trial venue
On 16 October 2009 Chisholm J refused the appellant’s application, pursuant to s 322 of the Crimes Act 1961, for a change of venue of the trial from Christchurch to an alternative High Court venue.[1]
[1] R v Smail HC Christchurch CRI‑2009‑009‑8464, 16 October 2009.
On 12 November 2009 the Court of Appeal gave leave to the appellant to appeal against the refusal to order a change of venue.[2] On 18 November 2009 this Court dismissed the appeal.[3]
[2] R v Smail [2009] NZCA 537.
[3] R v Smail [2009] NZCA 549.
In this appeal counsel for the appellant renewed her challenge to the High Court’s refusal to order a change of venue. She advanced no new grounds in support of that appeal.
We are satisfied that there are no new matters relevant to this ground of appeal not considered by this Court in October 2009. We consider there are no grounds to differ from the decision of this Court then. This ground of appeal is, therefore, dismissed.
(b) Cross-examination point
The appellant gave notice before trial that he proposed to call at trial a psychiatrist, Dr Barry‑Walsh, regarding particular personality traits for the purpose of establishing special characteristics. The Crown sought the appellant’s permission for a Crown appointed psychiatrist to examine the appellant. The appellant refused to give his permission for such an examination on the basis of “legal advice”. The Crown sought to lead evidence of this refusal at trial.
In a pre-trial ruling the Judge said:[4]
[9] In terms of relevance the underlying purpose of the evidence the Crown seeks to adduce is important. That purpose is to explain the absence of evidence from a Crown psychiatrist which might be relevant to the weight the jury places on the evidence, especially the professional evidence, to be called by the defence. That is, of course, relevant to the question of provocation which is the central plank of the defence case. I therefore reject Mrs Ablett Kerr’s argument that the evidence is irrelevant.
[10] The next issue is whether, in terms of s 8, the probative value of the question would be outweighed by any risk that the evidence would have an unfairly prejudicial effect on the proceeding. Because of the very limited scope of the inquiry (whether or not the accused consented to examination by a Crown psychiatrist), I do not think that that probative value is outweighed by the risk of unfair prejudicial effect. If the accused wishes to proffer an explanation as to why he did not consent, that information could be elicited during re‑examination. And, if the underlying concern is that the jury might infer guilt, then I can assure counsel that as soon as the question is asked I will immediately direct the jury that the accused had a right to remain silent and that they are not entitled to draw any adverse conclusion or inferences from the exercise of that right.
[4] R v Smail (Ruling No 5) HC Christchurch CRI-2005-009-8464, 9 June 2010.
At trial the appellant was asked in cross‑examination:
Q.Just a couple more matters. Firstly I’m not trying to undermine your right to silence but you’ve refused to be examined by a Crown psychiatrist is that right?
A.That was correct on legal advice.
Q.Well don’t tell me about that. I don’t want to know that.
A.That’s all I’m going to say.
The transcript then noted:
“THE COURT ADDRESSES THE JURY”
Although there is no direct record of what the Judge said to the jury, both counsel accepted he had addressed the jury in terms of his pre-trial ruling.
The basis of the appellant’s objection to the evidence was that the proposed question engaged s 32 of the Evidence Act 2006 and any evidence given as a result was irrelevant and prejudicial. The appellant’s submission now is that the admission of this prejudicial evidence has caused an unfair trial and, therefore, a miscarriage of justice.
Section 32 provides:
32 Fact-finder not to be invited to infer guilt from defendant's silence before trial
(1)This section applies to a criminal proceeding in which it appears that the defendant failed—
(a)to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
(b) to disclose a defence before trial.
(2) If subsection (1) applies,—
(a)no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
(b)if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.
(3)This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.
Without deciding whether s 32(1) was engaged in this case, there was no suggestion that anyone invited the jury to infer guilt from the refusal of the appellant to answer the question (s 32(2)(a)) and the Judge’s direction to the jury fulfilled the obligation under s 32(2)(b).[5]
[5] See [13] and [15] above.
The purpose of this evidence, as the Crown and the Judge stressed, was solely to answer why the Crown had no psychiatrist of its own and therefore why the jury had only heard from the defence psychiatrist. This was relevant to the weight the jury might give to the only psychiatric evidence they had heard. The Judge was careful to direct the jury that no impermissible inference could be taken from the appellant’s refusal to permit examination. Given that warning there is nothing objectionable in the jury knowing the Crown wanted a psychiatrist to examine the appellant but that the appellant refused to permit it. The jury were correctly told that this refusal was relevant, but relevant only, to its assessment of the psychiatric evidence. Finally, as the respondent noted in its submissions, this evidence hardly played an important part in the trial. The Crown did not even mention it in its final address to the jury.
We reject this ground of appeal.
(c) Special characteristics
There are two aspects to this ground of the appeal. Firstly, the appellant says the Judge was wrong to refuse to allow evidence at trial of what were said to be two special characteristics, namely being excessively emotional and having poor problem‑solving ability. Secondly, the appellant says the Judge in his summing up diminished the effect of the special characteristic of insecure personality by failing to explain its full effect to the jury.
The issue of provocation and special characteristics was considered by the Judge at a voir dire.
The evidence of Dr Barry-Walsh at the hearing gave the Judge little assistance in identifying exactly what were said to be the appellant’s special characteristics. It was left to the judge to formulate the four special characteristics from Dr Barry-Walsh’s evidence as alcohol dependency, insecure personality, being excessively emotional and poor problem-solving ability.
Counsel for the appellant accepted before us that these categories fairly reflected Dr Barry-Walsh’s evidence. These characteristics were in the psychiatrist’s words “maladaptive personality traits”. It was not claimed that the appellant suffered from any personality disorder or was mentally ill.
As to the special characteristics being excessively emotional and having poor problem‑solving ability and their admissibility the Judge in his pre‑trial ruling said:[6]
Excessively emotional
[46] Dr Barry-Walsh said that in the case of the accused this was not as severe as some. He referred to anxiety and mood swings.
[47] I am not satisfied that this characteristic can qualify. Rightly or wrongly it seems to me that mood swings are suggestive of something more of a transitory nature. I do not see how this characteristic could qualify in terms of R v McGregor. In any event, as Dr Barry‑Walsh accepted, there seems to be a significant overlap between this characteristic and the previous characteristic.
Poor problem solving
[48] I also reject this as a special characteristic. It seems to me that there is strength in Mr Shamy’s argument that if this characteristic was accepted it would be tantamount to accepting diminished responsibility as a sufficient qualification for the limited defence of provocation.
[6] R v Smail (Ruling No 6) HC Christchurch CRI-2005-009-8464, 11 June 2010.
Counsel submitted that the two special characteristics had the features necessary to qualify. Counsel submitted:
... Each of the characteristics existed at the time of the killing; they were clinically diagnosable and there was an inter‑relationship between them all ... Only a relatively small proportion of the population suffered from these characteristics.
Counsel said that these characteristics qualified in terms of the test identified by this Court in R v McGregor.[7] In that case this Court explained that:[8]
The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual’s character or personality.
[7] R v McGregor [1962] NZLR 1069 (CA).
[8] At 1081.
Counsel also submitted that the two characteristics related directly to the circumstances which the appellant found himself in.
We consider the Judge was correct in rejecting both of these characteristics as special characteristics.
In R v Rongonui this Court more recently identified what was required to qualify as a special characteristic:[9]
The mental gymnastics involved in this exercise simply serve to underline the desirability of achieving conceptual simplification of the law in this area. A humane way of approaching that task and one which is consistent with the essentially subjective approach which the criminal law takes to mental states, would be to allow as a characteristic any mental state which generally reduces the accused's power of self-control, provided that state was neither self induced such as intoxication, nor was simply a personality trait like short temper. While such conditions as these are in a sense mental states, they should not qualify as a matter of policy. In order to qualify, the mental state should amount to a professionally recognised form of mental disease, disability or disorder. Such an approach could be seen as acceptance of diminished responsibility in circumstances of provocation. A general defence of diminished responsibility in wider circumstances would not necessarily follow. This degree of diminished responsibility in the face of provocation would still pose problems for juries, but no greater than those they face daily in having to consider the mental states of all sorts and conditions of people.
[9] R v Rongonui [2000] 2 NZLR 385 (CA) at [236].
As to excessive emotionality (including mood swings) regarding the appellant, Dr Barry-Walsh said at the voir dire:
A.I would go back to emotional, excessively emotional, mood swings is a very common description of people with this kind of problem and Mr Smail’s problem with this is not as severe as I’ve seen in some particularly those that would be called personality disordered but it is there and I think most people understand mood swings as long as they understand that we’re not talking about what’s known as bipolar disorder because often people equate that but if (inaudible).
As to poor problem solving, Dr Barry-Walsh said:
A.The only other observation I would make is that he was a poor problem solver for personal issues and that will certainly at least in part relate to his alcohol use so when people are intoxicated we know their judgment’s impaired but even outside that and Mr Smail’s ability when faced with emotional personal crisis really, social and psychological pressures on him, some of which adduced to his personality style anyway, his decision making is quite poor.
Q.Does that come under insecure personality or is it more stand alone? At the moment I am thinking insecure personality which includes being a needy person?
A.This is I think highlights, this might be arbitrary, not just this way of thinking but it was an aspect of who he was or who he is I should say that created real problems for him and you could argue that it should be given its own standing separate from those other terms. It’s clear, it seems to be clear from our discussions that you understand that I’m not talking about distinct or separate entities but it’s just capturing aspects of Mr Smail’s clinical presentation.
Dr Barry-Walsh contrasted the appellant’s personality traits with personality disorders and those with bipolar disorder. These are in different categories. Neither excessive emotionality nor poor problem solving are identified by Dr Barry-Walsh as forms of personality disorder.
Neither of these traits can be described, in terms of Rongonui, as recognised forms of mental disease, disability or disorder. Excessive emotionality and poor problem solving are essentially personality traits even if maladaptive in Mr Smail. They fall short of the requirements identified by this Court in Rongonui. We, therefore, reject this ground of appeal. We agree with the Judge these traits were not special characteristics.
Mrs Ablett‑Kerr also submitted that when the Judge explained the meaning of insecure personality to the jury he should have included the fact that the appellant was unable to cope with stress. The Judge’s failure to do so unreasonably narrowed this special characteristic. As a result the jury were not fully aware of the extent of the insecure personality trait and could not adequately take it into account in assessing provocation. Further, counsel submitted that the Judge had not adequately explained to the jury how special characteristics could be used.
The definition of particular personality traits can be elastic. A broad range of behaviour could come within the definition of an insecure personality. Dr Barry-Walsh described the appellant as someone who “over the course of his life has demonstrated difficulties dealing with stress”. When considering the special characteristic category of insecure personality the Judge in his voir dire ruling said:
[42] Within this category Dr Barry-Walsh referred to Mr Smail’s needy traits. As I understood it, these reflect that he is more insecure than most people, is unable to cope with stressful situations, and is dependent on others at times of stress. Dr Barry‑Walsh illustrated this by reference to occasions when Mr Smail had sought refuge in his mother, his sister, and Mr McCormick.
The Judge provided a written form of his summing up relating to provocation to the jury which was reflected in his oral directions. He said:
[18] The first step is to decide whether at the time of the killing Mr Smail possessed either or both of the characteristics asserted by the defence: alcohol dependence and insecure personality.1 Because the onus is on the Crown Mr Smail must be treated as possessing both those characteristics unless the Crown has proved that this is not so.
1 On Dr Barry‑Walsh’s analysis, if you accept it, alcohol dependency is synonymous with alcoholism and the insecure personality reflects that Mr Smail was anxious, insecure and requiring the validation or support of others.
The footnote was read out to the jury.
As to how the jury could use any special characteristic the Judge said:
[69] While Mr Smail is expected to display the power of self-control of an ordinary person, the gravity, or sting, as either Crown or defence counsel explained it, of the provocation needs to be assessed from his point of view. This reflects that the provocation might be graver for Mr Smail with his characteristics (if they have not been disproved by the Crown) than it would have been for a person without those characteristics. Put another way, while the level of gravity for an ordinary person might have been at, say, level five, the provocation for Mr Smail might be, say, level eight.
[70] So the question becomes whether Mr Smail, with his characteristics, ought to have been able to resist provocation at the level of gravity experienced by him. Now just to pause there. This is a difficult concept. I fully appreciate this and you will probably want to go back to the jury room and reflect on what I have said so far. [Jury wants to continue.]
The Judge then referred to the diagram he prepared which posed a series of questions for the jury relating to provocation, which also mentioned the way in which special characteristics could be used.
Finally, in summarising the defence case the Judge said:
·The defence contends that you also need to take into account the characteristics of Mr Smail as to alcoholism and a dependent personality because they resulted in the provocation that had been given having a greater gravity or sting in Mr Smail’s mind. The defence contends that his mind was also fuelled by events earlier that day.
We are satisfied these references illustrate the Judge did explain to the jury how any special characteristic they found existed could be used by them when considering provocation.
We accept it may have been preferable for the Judge to have given more guidance to the jury as to the extent of the appellant’s insecure personality, how it was alleged to have manifested itself in this case and how it was relevant to the alleged provocation. However, there was extensive evidence before the jury from lay witnesses and Dr Barry-Walsh as to the appellant’s personality including his inability to cope with stress. To give some examples, Dr Barry-Walsh described the appellant in evidence in this way:
He appears to be an anxious and insecure man, frequently low in mood, and the history suggests he remained dependent on others (e.g. his mother). Over the course of his life he had demonstrated difficulties dealing with stress as I have previously described. In the past Mr Smail has coped by escalating use of alcohol and at times he has decompensated and become depressed and on occasion impulsively self‑harmed.
...
In summarising his psychiatric and psychological state I would point to an interaction between his alcohol dependence (noting his use of alcohol although generally heavy has fluctuated), pre‑existing personality difficulties, intermittent depressive episodes and more chronic but fluctuating problems with anxiety and unstable, often low mood. A feature has been Mr Smail’s limited capacity to cope with adversity and there is evidence that he has been dependent on others most obviously reflected in his retreats at times of difficulty to his mother in Timaru.
We are satisfied from the evidence that the jury would have been well aware that an insecure personality could encompass an inability to cope in stressful situations. A full exposition of the appellant’s character was before the jury. We do not consider the Judge made any error here in his summing up.
We reject this ground of appeal.
(d) Provocation, hot blood and throes of passion
The second ground of appeal relating to provocation concerns the Judge’s references in his summing up to the alleged provocative words. The defence case was that what had been said to the appellant about his obligations to look after the deceased when he was at the hotel shortly before the killing and what the deceased said to him immediately before the killing were the provocative words which triggered his loss of self-control. The appellant submits that the Judge wrongly failed to adequately identify the conversations at the hotel as part of the relevant provocative comments.
There was evidence from several of the appellant’s drinking companions that late in the afternoon of the day of the killing they told the appellant that he should go home to look after the deceased. Some of these witnesses said that the appellant’s mood then changed. He became angry and agitated and shortly afterwards said he would go home and cut his (the deceased’s) throat. He repeated this threat regarding the deceased on his way home from the hotel when he told the others present in the vehicle that the deceased would be dead in two to ten minutes.
The appellant’s evidence in court was that he had no recollection of these conversations and could not, therefore, say how he had reacted to the comments of his friends that he should go home to look after the deceased.
In his trial ruling on this issue the Judge said:[10]
[29] The accused relies on Mr McCormick yelling at him as the ultimate trigger. He also relies on associated third party provocation by virtue of the six people at the two taverns telling him that he should go home and care for Mr Smail.
[30] Mrs Ablett Kerr submitted that this third party provocation was so closely related to the acts of the deceased in time, place and circumstance that they should be construed as supporting those acts. She relies on R v Turaki, R v Su and R v Paniani. In other words, she submitted, they need to be construed in light of the “circumstances of the case”, including the living arrangements, the personal history of both men, the relationship between them, Mr McCormick’s condition, and Mr McCormick’s constant demands for Mr Smail to stop drinking (which he could not meet).
[31] I am satisfied that it would be open for the jury to accept that there was provocation emanating from the deceased.
[32] At the forefront of this conclusion is what was described in the evidence as the “angry” response from Mr McCormick about Mr Smail’s lateness which needs to be assessed in the context of all the relevant circumstances. First, earlier remonstrations by Mr McCormick about drink and lateness: see, for example, the evidence of Ms McQuality, Ms White and Mr Smail. Secondly, the growing stress being experienced by Mr Smail when caring for his friend, in particular his revulsion at his friend’s plight during the period leading up to the killing. Thirdly, the history of Mr McCormick’s efforts to get Mr Smail off the drink. Fourthly, the timing (just before the killing) of the comments at the hotels.
[10] R v Smail (Ruling No 6) HC Christchurch CRI-2005-009-8464, 11 June 2010.
When the Judge summed up on this issue he said:
[56] Anything said or done by Mr McCormick can amount to provocation. So you will need to consider about the words and actions that are alleged to constitute the provocative acts by Mr McCormick.
[57] The defence case is that you can also take into account what was described by Mrs Ablett Kerr as “third party provocation” arising from the comments at the Cave Rock and Ruptured Duck to the effect that Mr Smail should be home caring for Mr McCormick. Those comments need to be sufficiently close in terms of time, place and circumstance to Mr McCormick’s actions and words for them to be taken into account as part of the provocation.
[58] You will also have to take into account all the other circumstances leading up to and surrounding Mr McCormick’s death including any conclusions that you reach as to the nature and history of the relationship between Mr McCormick and Mr Smail.
[59] Then you will have to apply the conclusions you reach in relation to paras (8) to (10) to the next two components of provocation.
The two components of provocation
[60] Anything said or done by Mr McCormick may be provocation if:
Mr Smail actually lost the power of self‑control as a result of what was said or done and was thereby induced him to kill Mr McCormick; and
In the circumstances of the case a person having the power of self-control of an ordinary person, but otherwise having Mr Smail’s characteristics, would have lost self-control.
You will see that I have reversed the order of these two components as they appear in subsection (2) of the Act quoted at (4) above. This is because experience has shown that is easier for juries to comprehend the law relating to provocation if the order is reversed.
Later when referring to the defence case he said:
·And, says the defence, the actions of Mr Smail when he got to the house show that he did not, before the provocation from Mr McCormick, intend to kill Mr McCormick. That was because he walked through the kitchen where the knife was and into the living room where Mr McCormick was. If he had intended to kill Mr McCormick, says the defence, he would have surely taken the knife and gone and killed Mr McCormick immediately he arrived.
·The trigger, says the defence, to this killing was what Mr Smail feared the most: he was told off by his protector and a person that he loved; he snapped and killed Mr McCormick as a result. The defence contrasts earlier thoughts of euthanasia which did not involve any anger.
The Judge then later in his summing up returned to the question of what was said to be the provocative words. In doing so he referred to a diagram which he had attached to his written instructions to the jury. The first two boxes of his diagram read as follows:
What was said and done by Mr McCormick and what were the circumstances leading up to and surrounding his death?
Did Mr Smail actually lose self-control and kill Mr McCormick as a result of anything said and/or done by Mr McCormick? (Crown must disprove beyond reasonable doubt).
And his explanation of the diagram to the jury was:
[72] So we will go through this diagram. First question, “what was said and done by Mr McCormick and what were the circumstances leading up to and surrounding his death?” Once you have decided that you move to the second question, second box, and ask yourself, “did Mr Smail actually lose self-control and kill McCormick as a result of anything said and or done by Mr McCormick?” And I remind you that the Crown must disprove this beyond reasonable doubt. There are two possible answers to this: either “yes” or “no”. And if you take the “no” on the right‑hand side you will see that that would lead you to the conclusion that the accused was guilty of murder. That is because one of the essential ingredients of provocation would have been disproved by the Crown, that is actually losing self-control.
The appellant’s point is that it was wrong of the Judge to say in his written jury material and in his oral instructions to them that the only provocation was “what was said and/or done by Mr McCormick”. The evidence of what others had said to the appellant about his responsibility to return home to look after Mr McCormick at the hotel were also words capable of constituting provocation and therefore relevant.
This failure, the appellant says, was made worse by the Judge’s use of the words “hot blood” and “throes of passion” in his summing up as being requirements for loss of self-control.
The Judge said:
[64] Provocation can only apply when the killing has been committed in hot blood and while the accused is still in the throes of passion so that, for the moment, the accused was not master of his mind. It involves a sudden and temporary loss of self‑control, but there can be a build up of events giving rise to that loss of control.
Counsel said the use of these words was inapt in a case such as this. The appellant’s case had been that he was ill-suited by personality to be the deceased’s care‑giver. He had eventually become worn down by his work for the deceased and “disgusted” by the tasks he had to perform for him. This was the relevant background, therefore, to the provocative comments by his hotel companions and the deceased on the day of the killing.
The appellant submitted that the words used by the Judge suggested only a “hot blood” or “throes of passion” loss of control would suffice in law. The appellant said, therefore, that the Judge had failed to adequately explain to the jury that the time between the provocative words and the killing did not have to be very short. It depended upon the circumstances of the case. Counsel relied upon the following passage of this Court in R v Timoti:[11]
We return to the Judge’s directions in the following terms:
“A defence of provocation to a charge of murder can be valid only when the homicide has been committed in hot blood and while the accused is still in the throes of passion. In law, the provocation need not occur immediately before the killing, but the time element is of great importance. You must consider, as a weighty factor, whether the accused’s acts leading to Mr Ruarau’s death bear any proper or reasonable relationship to the sort of provocation said to have been given by the accused’s mother and Mr Wuatai. The extent of loss of self-control has to be considered, in proportion to the alleged provocation. An ordinary person — see 1.2 p.5 — means an ordinary New Zealander. ”
Taken out of context this passage may be open to some criticism. The reference to the importance of the time element, in conjunction with references to “throes of passion”, might suggest a need for a temporal connection which, although not immediate, is very short. But the question of time for responding to the provocation had to be examined in the light of the duration and nature of the provocation itself, the dynamics of the family relationship and the personality traits which we have already discussed. These were factual issues and the Judge made it plain that although time was an important issue it was not a legal issue.
[11] R v Timoti [2005] 1 NZLR 466 (CA) at [58]–[59].
Mrs Ablett‑Kerr accepted before us that the Judge had accurately summarised the case she had presented to the jury.
We consider the Judge fully explained the potential breadth of the provocative words and the appellant’s case to the jury.
We accept that the Judge’s references to anything said and done by Mr McCormick could be seen as inappropriately limiting. But we are satisfied the jury would have been clear when the summing up is looked at as a whole that they were entitled to take into account the remarks made at the hotel as also relevant to provocation. The Judge made this clear when he referred to the “third party provocation” and when he summarised the defence case.
Further, the defence case, as was explained to the jury, involved a lengthy build up relating to stress on the appellant. The jury would have been well aware of this background through extensive evidence from the appellant and other witnesses leading up to the killing.
This background included the events at the hotel. The defence suggested that these background events undermined the appellant’s self-control. However, the actual loss of the self-control did not occur, on the appellant’s case, until the deceased’s remark to the appellant immediately before the killing. This, on the defence version of the case, caused the sudden and temporary loss of control referred to by the Judge. While “hot blood” and “throes of passion” may not be useful contemporary phrases for juries, the Judge made it clear that in the use of those words he was referring to the “sudden and temporary loss of self-control”.
The focus of the inquiry under s 169(2)(b) is whether the appellant was, in fact, deprived of the power of self-control. Issues of timing after the suggested provocation and whether the appellant acted in the heat of passion remain relevant to that inquiry.[12]
[12]R v McGregor [1962] NZLR 1069 (CA); R v Mita [1996] 1 NZLR 65 (HC); R v Timoti [2005] NZSC 37, [2006] 1 NZLR 323; R v Fraser [2008] NZCA 68; and R v Ferguson [2010] NZCA 2.
The Judge immediately followed his comments regarding “hot blood” and “throes of passion” by the observation that “there can be a build up of events giving rise to that loss of control”. This was exactly the defence case. We consider there was no error in the summing up on this aspect.
The other factor to keep in mind relating to provocation is that, after the appellant had given evidence, the Crown had a very strong case that there had been no loss of self-control by the appellant. Shortly before the killing but before the deceased’s alleged provocative words, the appellant had twice said to others he was considering killing the deceased, once in the very way that occurred. In his evidence‑in‑chief the appellant did not suggest he had lost self-control immediately before the killing. It was only in cross‑examination that he asserted he had snapped when he was told off by the deceased. In saying this we acknowledge Ms Claire Mark’s evidence of a discussion with the appellant shortly after the killing when she said the appellant had said that he had “snapped”.
The evidence of the appellant’s threats to kill was strong evidence of his intention to kill before any loss of self-control was claimed. The appellant acknowledged in cross-examination that he had thought about killing the deceased earlier in the day when he (the appellant) was at the Cave Rock Hotel. The sequence of events surrounding the killing itself also provides evidence that there was no loss of self-control. When challenged by the deceased about being late home, he calmly replied “It doesn’t matter Keith”; he then went into the kitchen and selected a knife; he hid it behind his back so that deceased would not see it; he then set about cutting the deceased’s throat; kissed him on the forehead; and then took money from the deceased’s wallet.
If the Crown had proved to the required standard that the appellant had not lost self-control then any claim of any inadequacies in the summing up relating to provocative words would be irrelevant. In any event we have found there was no error and no risk of a miscarriage of justice arises. We reject this ground of appeal.
(e) Diagnostic evidence
The next ground of appeal relates to the Judge’s refusal to allow Dr Barry-Walsh to give evidence to the jury of some of his conversation with the appellant’s mother.[13] The proposed evidence rejected by the Judge in his pre-trial ruling was:
MRS SMAIL (Mr Smail’s mother)
1.Mr Smail’s mother stated Mr Smail had always lacked confidence and been insecure. She could recall as a child he often was angry and blamed his father for his problems complaining his father didn’t do anything with him. Mrs Smail indicated Mr Smail had this considerably out of proportion. She stated family were always careful of what they said to Mr Smail even when young. This was because he was very sensitive and could take affront or offence easily. She confirmed she had taken him to a psychologist several times but was unsure why other than to note that he was unhappy at the time. She indicated Mr Smail did well academically at school but always had to achieve in order to ensure others liked him. She described a similar drive on the sporting field. She stated when he drinks and when he hasn’t eaten be becomes low in mood and thinks other people are against him or hate him. Mr Smail implied her son remained dependent on her through his life, noting Mr Smail, despite his travel spent every Christmas bar one with her and often borrowed money off her.
2.Mrs Smail stated Mr Smail “thought the world of Keith” but felt supporting Mr McCormick “got him down” particularly being tied to certain times when he had to be back for Mr McCormick. She noted Mr Smail appeared anxious and concerned about Mr McCormick’s health when Mr McCormick become unwell in 2005.
[13] R v Smail (Ruling No 7) HC Christchurch CRI-2005-009-846, 11 June 2010.
As to this the Judge said:
[3] I agree with the Crown. Mrs Smail has not been called as a witness. Information contained in the report includes numerous views expressed by Mrs Smail. They are clearly all of a hearsay nature and I doubt that they fall within the concept of past history or background described in Frost. More importantly, essentially the same information has been derived from the accused’s sister, Wendy Smail, who has given evidence. This is confirmed by Dr Barry-Walsh when he says “This history provided by Mr Smail’s sister is consistent with the history of both Mr Smail and his mother”. Thus the evidence is lacking in probative value and should be ruled out on that account alone.
[4] There is, however, one exception. As far as I can see the only piece of information derived from Mrs Smail which is not also derived from Wendy Smail is the reference to the accused being taken to a psychologist when he was young. Evidence is already before the jury about this, and I see no reason why Dr Barry-Walsh should not refer to that fact during the course of his evidence.
The appellant relies upon the view of such evidence expressed by the Chief Justice in this Court’s decision in Rongonui:[14]
The statements made by the appellant to Dr Taylor and Mr Shirley as to the events on the morning of the death of Pheap Im do not go beyond the statements introduced by the Crown as part of its evidence. It was therefore unnecessary for any further evidential foundation to be laid for the opinions expressed by the two witnesses. The statements as to the appellant’s past history, upon which Mr Shirley and Dr Taylor in part based their diagnoses, were admissible as diagnostic facts recognised as an exception to the rule against hearsay. Moreover, in the circumstances, it was highly probable that most of the history given, not otherwise proved by direct evidence, was true. In my view the evidence as to the appellant’s background was admissible. To the extent that it was not possible to infer that the statements made by Rongonui to Dr Taylor that she had been subject to intrusive thoughts of stabbing in the past were reliable, the evidence was I consider admissible, subject to any warning the trial Judge thought it appropriate to give as to its weight. To the limited extent that the evidence of the social worker consisted of technical hearsay as to the appellant’s social history, it was information which was background to the events in issue and likely in the circumstances to be true. It, too, should have been admitted.
[14] R v Rongonui [2000] 2 NZLR 385 (CA) at [62].
The appellant also relied upon this Court’s decision in R v Frost that past history or background necessary for the psychiatric analysis is admissible as “diagnostic facts”.[15] Whatever the correctness of the Judge’s refusal to rule this evidence admissible we are satisfied that there was ample unchallenged evidence before the jury that covered the same ground as Mrs Smail’s evidence. Dr Barry-Walsh’s evidence was that the appellant lacked confidence, was insecure and was sensitive. He also said that apparently when Mr Smail drank he became “low in mood”. And finally, Dr Barry-Walsh said that when the appellant was under stress he often sought his mother’s help and appeared to be dependent on her.
[15] R v Frost [2008] NZCA 406.
The appellant said, however, that Mrs Smail’s statement to Dr Barry-Walsh was especially credible because she could describe the appellant’s life-long personality. However, there was no real challenge by the Crown to the various witnesses’ description of the appellant’s personality including Dr Barry-Walsh’s description. There is no reason to suppose the jury would not have accepted this evidence. If, as the appellant now claims, what Mrs Smail had to say about her son’s personality was so important, the appellant could have called her to give evidence. As counsel acknowledged, the appellant’s sister and other witnesses described the appellant’s character in detail.
We are satisfied the excluded part of the evidence of Mrs Smail of the appellant’s personality was before the Court. The Judge’s decision on admissibility, therefore, could not have undermined the weight to be given to Dr Barry-Walsh’s report. There was ample other evidence of Mr Smail’s character to support the doctor’s evidence. We reject this ground of appeal. The appeal against conviction is, therefore, dismissed.
Appeal against sentence
The appellant was sentenced to life imprisonment with a minimum period of imprisonment of 14 years.[16] In doing so the Judge rejected the defence contention that it would be manifestly unjust to impose a life sentence and secondly, he rejected the prosecution claim that it would not be manifestly unjust to impose a minimum period of imprisonment of 17 years or more given s 104(g) of the Sentencing Act was engaged.
[16] R v Smail HC Christchurch CRI‑2005‑009‑8464, 11 August 2010.
The appeal against sentence has two aspects. Firstly, the appellant submits that in this case the Judge was wrong to conclude the presumption against life imprisonment had not been displaced. Secondly, if the first ground of appeal against sentence is rejected then the appellant says that minimum period of imprisonment of 14 years was manifestly excessive.
A brief description of the background by which the appellant came to be convicted of murder is necessary to give context to this appeal against sentence. The appellant killed the deceased on 28 July 2005. He was charged with murder shortly afterwards. On 12 May 2006 after what seems to have been a sentence indication by the Judge the appellant pleaded guilty to murder and was sentenced by that Judge to 12 years’ imprisonment with a minimum period of imprisonment of seven years.[17] Life imprisonment was not imposed.
[17] R v Smail (2006) 23 CRNZ 492.
The Solicitor‑General appealed. This Court quashed the sentence on 15 September 2006 and imposed instead a sentence of life imprisonment together with a minimum period of imprisonment of 13 years.[18] It subsequently became clear that this Court had not been told of the sentence indication before the sentencing in the High Court. The case came back before this Court in February 2008 and the appellant was permitted to vacate his plea of guilty in the circumstances.[19] Eventually a trial by jury proceeded with the resulting conviction in May 2010.
[18] R v Smail [2007] 1 NZLR 411 (CA).
[19] R v Smail [2008] NZCA 6, [2008] 2 NZLR 448.
Mrs Ablett‑Kerr at sentencing submitted that the sentencing Judge should set aside this Court’s decision (of 15 September 2006) as to the appropriate sentence as irrelevant given the Judge had heard far more extensive evidence than this Court as to the circumstances of the killing. Counsel said this case had a mercy killing aspect with diminished responsibility and in the circumstances the presumption against life imprisonment had been overcome.
As to this the sentencing Judge said:[20]
[47] While it is very true that I have a good deal more information than the Court of Appeal, I am afraid that the additional information that I have does not persuade me that I should depart from the approach adopted by the Court of Appeal. In my view this case falls short of rebutting the presumption of life imprisonment. As I have said, it is well removed from R v Law and R v Albury-Thomson, which were relied on on your behalf. To my mind it is highly significant that this case cannot be accurately categorised as a mercy killing. While there were obviously genuine personality and stress factors, they cannot elevate this case (either alone or in conjunction with all the other evidence) to a level where the high threshold that is required to rebut the s 102 presumption could be surmounted.
[20] At [47].
The Judge then turned to s 104. He concluded that s 104(g) of the Sentencing Act 2002 was engaged but concluded it would be manifestly unjust to impose the 17 year minimum period of imprisonment.
This Court considered the application of s 102(1) of the Sentencing Act when the Solicitor-General appealed in 2006:[21]
Having carefully reviewed all the material which was available in the High Court, we find that there is an inevitable conclusion that Mr Smail was not driven to the depths of despair, nor acted impulsively nor with significantly diminished responsibility. He was certainly suffering from a degree of stress arising from his part‑time caring responsibilities and it is unquestionable that his alcohol intake during the day had a disinhibiting effect on him.
The fact that the men were long‑term friends and Mr Smail may have reached the view that Mr McCormick would have been better off dead, does not suffice to displace the presumption in favour of life imprisonment created by s 102. Such a sentence should have been imposed. That must always be the first inquiry undertaken.
[21] At [24]–[25].
Mrs Ablett‑Kerr submitted that the High Court Judge failed to identify that the sentencing before him was quite a different sentencing than before this Court in 2006. Different and additional relevant facts had been revealed at trial. She said that the sentencing Judge should have concluded, given the detailed evidence he had heard that Mr Smail was driven to despair, that he had diminished responsibility and that he had suffered prolonged and unsupported stress. Thus the Judge’s decision on the appropriate sentence should have been reached without reliance on this Court’s remarks regarding s 102.
It is clear from the Judge’s sentencing remarks[22] that he did give fresh consideration to a proper sentence and did not feel constrained by this Court’s approach in 2006. The Judge considered the appellant’s personality traits, the stress he felt in caring for the appellant, the mercy killing aspect claimed and whether there was diminished responsibility on the appellant’s behalf (which he rejected).
[22] At [47].
The Judge identified the relevant facts of the killing, the background, and analysed them in the context of the aggravating and mitigating features of the case. He concluded that although he had more information than the Court of Appeal about the circumstances before the killing and at the time of the killing, the additional information did not persuade him to depart from the approach of the Court of Appeal. He considered that balancing all factors the appellant had fallen short of rebutting the presumption of life imprisonment.
We agree. Mrs Ablett‑Kerr stressed the similarity of the circumstances to a number of cases. However, these cases were manslaughter convictions rather than murder convictions. A conclusion that a life imprisonment sentence for murder would be manifestly unjust has only rarely been reached in New Zealand. The Judge correctly distinguished the facts in this case from the then two cases in New Zealand where such a conclusion has been reached.[23]
[23]R v Law (2002) 19 CRNZ 500 (HC); R v Harrison‑Taylor HC Auckland CRI‑2004‑092‑001510, 12 September 2005.
We accept that the appellant was ill-suited to the task of looking after the deceased. Given the appellant’s insecure personality, alcoholism and his problem with coping with stress he would have found the task of looking after the deceased very difficult.
We keep in mind, however, as the Judge did, that although the appellant and the deceased lived together, Mr Smail only had limited responsibility for the deceased’s care. For most of the time the deceased had other caregivers. Although the appellant had, in Dr Barry-Walsh’s words, maladaptive personality traits, he had no personality disorders, nor any psychiatric illness. This was not a mercy killing and Mrs Ablett-Kerr did not, on appeal, suggest it was. While there may have been some discussion between the appellant and the deceased regarding assisted suicide it is clear the deceased coped remarkably well with his disability. At the time of his killing there is no credible suggestion that he wanted to end his life.
As the Judge at sentencing said:[24]
The final conclusion that I have reached in terms of the killing is that it could not be described as a mercy killing. Indeed, Mrs Ablett Kerr made it clear that you were not contending that that was the case. Rather, she described it as having “elements of a mercy killing”. The reality is that Mr McCormick did not want to die.
[24] At [38].
We accept the appellant was concerned about the deceased’s quality of life and stressed about the deceased’s physical condition. But this concern falls well short of any form of mercy killing. What must also be kept in mind in this analysis is that the appellant murdered a wholly vulnerable victim in his own home without, as the jury found, loss of control.
For these reasons we are satisfied that the Judge made no error in his approach to s 102(1) and was clearly correct in his conclusion that it would not be manifestly unjust to impose a life sentence of imprisonment.
We are also satisfied save for one aspect of the case that the minimum period of imprisonment was not manifestly excessive. The starting point as the Judge recognised was the minimum period of imprisonment of 17 years mandated in s 104 of the Sentencing Act. This was the killing of an especially vulnerable man. But we agree with the Judge that, looked at overall, a minimum period of imprisonment of 17 years was manifestly unjust.
In this Court’s 2006 decision, based on the appellant’s then guilty plea and the fact that it was a Solicitor‑General appeal, a minimum period of imprisonment was set at 13 years.
Given the appellant has been found guilty by a jury and the Solicitor‑General appeal factor was not present at sentencing the Judge’s increase of the minimum period of imprisonment by one year was modest.
There is, however, one discrete factor which we consider was given inadequate consideration by the sentencing Judge and which resulted in a manifestly excessive minimum period of imprisonment. In the ordinary course of events the appellant (assuming he pleaded not guilty) could have been expected to have been tried by the High Court from mid to late 2006. This takes into account that his arrest was in July 2005. Instead the appellant was tried in May/June 2010, some three and a half years later and five years after the offending.
The events relevant to delay between charge and trial are:
(a)28 July 2005 charged (the appellant was remanded in custody);
(b)May 2006 guilty plea and sentencing;
(c)September 2006 Court of Appeal increases sentence;
(d)September 2007 Supreme Court refuses leave to appeal but suggests the appellant could seek leave to appeal to the Court of Appeal on new grounds;
(e)February 2008 Court of Appeal permits appellant to withdraw plea of guilty;
(f)March 2008 appellant granted bail until trial;
(g)20 April 2009 trial due to start in High Court;
(h)21 April 2009 Court of Appeal delays trial commencement given publicity;
(i)November 2009 trial delayed because of appellant’s ill health;
(j)24 May 2010 trial begins;
(k)15 June 2010 verdict given (remanded in custody).
In his sentencing remarks the Judge said that before he took into account the unusual delay factor in this case the appropriate minimum period of imprisonment was 14 to 15 years. As to the delay in trial he said:[25]
The final step is to decide the minimum period of imprisonment. Again, I have derived considerable guidance from the Court of Appeal. But I have to factor in events after the matter came before that Court. Although it went to trial, the circumstances are extremely unusual, and it is true that for reasons beyond your control and not of your making the trial has been hanging over your head for a number of years. In Williams v R the Supreme Court said:
If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy.
The Court also went on to say that if the accused has been in custody, that time will count towards the service of the term of imprisonment.
So while I take into account that you went to trial and were found guilty of murder, I balance against that the events that preceded this trial. Exercising the best judgment that I can, I arrive at the conclusion that the minimum period of imprisonment should be 14 years.
[25] At [57]–[58].
It is not entirely clear what, if any, discount the Judge gave for the unfortunate circumstances which delayed the appellant’s trial. It appears as though that allowance was no more than six months if it is assumed the minimum period of imprisonment without this factor was in the middle of the 14 to 15 year range specified.
Other than a short delay because of the appellant’s ill health all of the undue delay in this trial arises from the circumstances of the appellant’s decision to plead guilty and the subsequent sentence. The additional delay caused by these events is approximately three years after deducting a six month delay for the appellant’s ill health and a period of 18 months from arrest to the date on which his trial could have been expected in the ordinary course of events.
In Williams v R the Supreme Court discussed the appropriate remedy for undue delay after trial and conviction.[26] The Court said:[27]
The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.
[26] Williams v R [2009] NZSC 41, [2009] 2 NZLR 750.
[27] At [18].
In Williams there was a delay from arrest to trial of almost five years. The 18 month or 25 per cent reduction in sentence given by the sentencing Judge was described by the Supreme Court as “generous”.[28]
[28] At [22].
As the chronology shows, in this case, the appellant spent two years and nine months of a five year delay in custody. That period will count towards his sentence and in particular his minimum period of imprisonment.[29] No direct allowance by way of sentence reduction is required with respect to that period.
[29] Parole Act 2002, s 90.
We consider, however, the appellant is entitled to some sentence reduction for the period he spent on bail when the trial was unduly delayed through no fault of the appellant, a period of some two years and three months. The other factor relevant in assessing what sentence reduction is appropriate is that the appellant has, for a period of five years, faced the stress of awaiting trial and resolution of his case.
We consider, therefore, that a further reduction of 12 months was justified to his minimum period of imprisonment. We, therefore, quash the minimum period of imprisonment imposed of 14 years and reduce it to one of 13 years to reflect the undue delay.
In summary, as to the appeal against sentence, we dismiss the appeal against the sentence of life imprisonment. We allow the appeal against the minimum period of imprisonment. We quash the minimum period of imprisonment of 14 years and substitute instead a minimum period of imprisonment of 13 years.
Solicitors:
Crown Law Office, Wellington for Respondent
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