REASONS
(Given by Tipping J)
Introduction
[1]        The appellant, Mr Timoti, was convicted of murder after a trial in the High Court at Auckland. His appeal to the Court of Appeal was dismissed.[1] He appeals to this Court, leave having been given on two points concerning his partial defence of provocation. The first of those points concerns the Court of Appeal’s conclusion that provocation was untenable in the circumstances of the case. The second relates to the trial Judge’s directions on proportionality. A third issue arises from the Crown’s attempt to support the Court of Appeal’s conclusion on the basis that provocation was not available to Mr Timoti as a matter of law.
[1]      R v Timoti [2005] 1 NZLR 466.
[2]        The case is an unusual one of its kind in that the provocation relied on was not given by the person killed and, furthermore, it is accepted that the case must be approached on the basis that Mr Timoti was convicted of murder under paragraph (d) of s 167 of the Crimes Act 1961.[2] Under this paragraph culpable homicide is murder if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
[2] See [8] below.
[3]        Mr Timoti set fire to premises in which the person killed was present. He was acquitted on charges of attempted murder in relation to the two people said to have provoked him. That acquittal (which rejected any intention to kill) means that the murder conviction must have been based on s 167(d). In that respect the jury must have found that he knew his lighting the fire with the object of burning down the building was likely to cause death, albeit he may have desired that his object should be effected without hurting anyone.
[4]        The logically first question is whether the Crown is correct in its submission that provocation can never reduce to manslaughter what would otherwise be murder under paragraph (d) of s 167. Before examining that question, we will describe the factual background to the extent necessary to put it and subsequent questions in context.
Factual background
[5]        At the relevant time Mr Timoti, then aged 23, was living with other members of his family in a house in Auckland. Those present were his mother, Mrs Maru Timoti, his stepfather, Mr Fred Wuatai, and their infant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Timoti

Details

AGLC: R v Timoti [2005] NZSC 37
Case: [2005] NZSC 37
Decision Date: 21 June 2005

CaseChat Overview and Summary

In this appeal, the appellant, Mr Timoti, sought to overturn his conviction for murder by relying on the partial defence of provocation. The murder charge stemmed from a fire that Mr Timoti set at a family house, resulting in the death of Mr Ruarau. The Court of Appeal dismissed Mr Timoti’s appeal, but the Supreme Court granted leave to appeal on two points concerning the partial defence of provocation. The first point was whether the Court of Appeal correctly concluded that provocation was untenable in the circumstances of the case. The second related to the trial Judge’s directions on proportionality. The Supreme Court found that the Court of Appeal was incorrect in concluding that provocation was not available as a defence to murder under paragraph (d) of s 167 of the Crimes Act 1961. The Supreme Court also found that the trial Judge misdirected the jury in what he said on the general subject of proportionality and failed to instruct the jury plainly as to how, and the extent to which, his proportionality directions related to the two questions they had to consider. The misdirections were material in the sense that they could have given rise to a verdict which the jury might otherwise not have reached. The appeal was allowed, the conviction for murder was set aside, and a new trial was ordered.

Orders