R v T HC Auckland CRI 2005-092-12850

[2007] NZHC 697

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-092-12850

THE QUEEN

v

T

Hearing:         16-20, 23 July 2007

Counsel:        R Marchant and K Gray for Crown

I Tucker, M Wotherspoon and T Spencer for Accused

Judgment:      23 July 2007

(ORAL) RULING OF HEATH J

Solicitors:

Crown Solicitor, Auckland

I Tucker, Auckland

R V T HC AK CRI 2005-092-12850  23 July 2007

Introduction

[1]      Following closure of the case for the accused, there are two issues on which I

need to rule.  I have heard from counsel on each issue.

[2]      The first is whether the jury should be directed on the effect that intoxication could have on proof of murderous intent.  The second is whether there is a credible narrative for the partial defence of provocation to go to the jury.

[3]      A third issue raised prior to opening of the defence case is no longer pursued. That relates to whether age should be regarded as a characteristic of the accused for the purposes of the inquiry under s 169(2)(a) of the Crimes Act 1961.  It is accepted that age is not a characteristic of that type.

Intoxication

[4]      On the intoxication issue, there is evidence that Mr T  had consumed considerable quantities of alcohol during Saturday 22 October 2005.   There is no specific evidence as to his state of intoxication, although a police officer present near the scene, who spoke with the accused later that night, described him as being “very drunk”.

[5]      Mr T  has given evidence and it  is clear from that evidence that  he recalls clearly events that occurred and was able to describe some quite deliberate actions taken.  It seems that the events, as they unfolded, began to have a sobering effect on him.

[6]      If the jury were to be directed on intoxication I would need to direct them that it was for the Crown to exclude the reasonable possibility that Mr T  was so grossly intoxicated that he did not form either of the requisite intents required for the Crown to establish murderous intent.   I am not satisfied that there is a credible narrative for such a direction to be given and I decline to direct the jury on it.

[7]      I record that the case as put for the accused, at trial, has not relied upon this aspect.

Provocation

[8]      The second issue concerns provocation.   During the course of the defence case two distinct events have been referred to, to provide an underlying foundation for the partial defence of provocation.  The first was the location by Mr T  of his friends Ernest and Hanton, who had been left beaten on the corner of Dosina Place and Norrie Smith Avenue by members of a juvenile gang.  The second arises out of alleged words and actions of the deceased when Mr T  confronted him in his house in the early morning of 23 October 2005.

[9]      I raised with counsel after closings whether a credible narrative existed for either of those propositions.   I was concerned that the evidence demonstrated deliberate acts on the part of Mr T  and that the extent of anything that may have presented as provocation did not in fact deprive him of the power of self- control and induce him to commit the act of homicide.

[10]     Having heard from Mr Tucker, I am persuaded by a thin margin that there is sufficient evidence to justify provocation going to the jury on the basis of what was said by the deceased to Mr T  at his home shortly before he was killed.

[11]     The narrative comes from Mr T ’s own evidence.  After referring to an exchange of words between himself and the deceased about the events that had led up to a gang associated with the deceased’s son causing harm to his friends, Mr T  says that the deceased told you “You were meant to die, you’s were all meant to die”

[12]     Mr T  described himself as “pretty bummed out” by the way that was said  and  was  also  concerned  that  the  deceased  had  no  remorse  for  what  had happened to his friends.  On that basis he said that he “got pretty angry” and says he “lost it”.

[13]     While some of the actions on the part of the accused do not necessarily sit easily with that explanation, I am satisfied the issue ought to go to the jury for consideration.

[14]     What I am not persuaded, however, is that there is some independent source of provocation resulting from the mere fact that Mr T  discovered his friends, Ernest and Hanton, lying at the side of the road, he thought dying as a result of the beating they had taken.

[15]     It is clear from the evidence that Mr T  knew, by that time that, the gang associated with the deceased’s son was responsible and that he intended to confront the deceased about what had in fact occurred.   However, he has not, in evidence, suggested that anything arising only from the location of his friends could give rise to provocation.

[16]     Nevertheless,  the  location  of these  friends  in  a  beaten  state  is  plainly  a background factor that can be taken into account by the jury, should they accept Mr T ’s evidence of what he says occurred when he confronted the deceased in his house.

[17]     On that topic, I rule that counsel may close on the basis that the acts and words described by Mr T  could amount to provocation and can be considered in the context of the events that preceded it.

[18]     I rule, however, that the first part of the events, namely finding his friends at the side of the road, is insufficient to justify provocation being put on the basis of those events alone, as an independent source of provocation.

P R Heath J

Addendum

[19]     Yesterday evening, I issued Minute (No. 5) to counsel.  The purpose of that

Minute was to seek comments on a draft questionnaire I had prepared for the jury.

[20]     For reasons given in para [2] of that Minute I reconsidered my decision on putting  intoxication to  the jury,  as relevant  to  murderous intent.                That  decision

supersedes the ruling set out in para [6] above.

P R Heath J

24 July 2007