R v Uluakiola CA123/06

[2006] NZCA 513

IN THE COURT OF APPEAL OF NEW ZEALAND

CA123/06

THE QUEEN

v

SIONE TAU ULUAKIOLA

Hearing:         15 November 2006

Court:            O'Regan, Potter and Miller JJ Counsel:          C Wilkinson-Smith for Appellant

A Markham for Crown

Judgment:      6 December 2006         at 11 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Potter J)

R V SIONE TAU ULUAKIOLA CA CA123/06  6 December 2006

Table of Contents

Para No

Introduction   [1] Factual background   [3] Appeal against conviction - murder  [12] Provocation defence  [13] Jury questionnaire  [17] Tongan ethnicity  [23] Direction at [32] of the summing up  [36] Appeal against conviction – threatening to kill  [43]

Appeal against sentence

Murder  [52]

Grievous bodily harm  [67]

Result  [69]

Introduction

[1]      The appellant Sione Tau Uluakiola appeals against conviction on charges of murder and threatening to kill.  He appeals against the sentence of life imprisonment with a minimum period of imprisonment of 17 years imposed for the murder of his wife, and the sentence of 11 years imposed on the conviction for causing grievous bodily harm to Alisi Sandys.

[2]      Following trial the appellant was convicted and sentenced on the following charges:

1.Murder   of   his   wife   Kalolina   Uluakiola   –   sentenced   to   life imprisonment with a minimum period of imprisonment of 17 years.

2.Causing grievous bodily harm to Alisi Sandys, (he was found  not guilty on an alternative count of attempted murder) – 11 years imprisonment (concurrent).

3.        Threatening    to    kill    Mele    Sandys   –    9   months    imprisonment

(concurrent).

4.        Assaulting Mele Sandys with a weapon – 9 months imprisonment

(concurrent).

Factual background

[3]      The appellant and his wife lived together at an address in South Auckland with  their  six  children  aged  between  two  and  fifteen  years.    Two  cousins  of Mrs Uluakiola, Alisi and Mele Sandys, were also staying at the address.

[4]      Over some months prior to the relevant events the relationship between the appellant and his wife had deteriorated and Mrs Uluakiola had taken to sleeping in the lounge.

[5]      On the  evening  of Sunday 20  February 2005  the  appellant  and  his  wife argued and she told him that she wanted him to move out.  He was upset.

[6]      On the following day Mrs Uluakiola returned from work around 9.30 p.m. The appellant was in his bedroom.  When she discovered that he had not moved out she complained loudly but did not speak directly to the appellant who remained in his room.

[7]      At about 10.30 p.m. Mrs Uluakiola went to sleep on the floor of the lounge, with two of her sons aged two and ten years asleep next to her.  Alisi Sandys went to sleep  on  a  nearby  couch.    Mele  Sandys  and  the  other  children  were  asleep  in different rooms.

[8]      Some time between 10.30 p.m. and midnight the appellant left his room and went outside.  Using a machete he cut a large branch to size for use as a makeshift club.   The branch was some 800 millimetres in length, 80 millimetres in diameter and weighed over four kilograms.  The appellant told the Police that he went back into his room with the branch and lay on his bed for about 20 minutes thinking of beating his wife.

[9]      The appellant then went into the lounge where he picked up his ten year old son and took him into his own bedroom.  He returned to where his wife lay asleep and struck her at least 12 times in the head, wielding the club with both hands.  She

suffered extremely severe  fractures to  the head and died almost  instantly.    The murder took place just before midnight.

[10]     The commotion caused Alisi Sandys to wake up.  She may have attempted to intervene.  The appellant struck two blows to her head and she fell unconscious.  She suffered very severe head injuries and an operation was necessary to remove a blood clot on her brain.  The operation saved her life.

[11]     Meanwhile Mele Sandys, hearing the commotion, came out of her bedroom and despite protests from his 13 year old daughter, the appellant confronted Mele brandishing the club, and threatened to kill her.  He pursued her but she managed to escape out of a window.

Appeal against conviction - murder

[12]     The appeal against conviction for murder is on the grounds that the Judge misdirected the jury as to provocation in four ways:

(i)       Providing a questionnaire to the jury which would lead to a plainly wrong verdict;

(ii)      Ruling  expert  evidence  as  to  a  qualifying  characteristic  to  be inadmissible and therefore not to be considered by the jury;

(iii)      Failing   to   direct   that  the   accused’s   background   including   his traditional Tongan upbringing is relevant to the gravity of any provocation alleged;

(iv)      Directing that an intention to kill excludes the defence of provocation.

Provocation defence

[13]     At his trial the appellant admitted that he intentionally killed his wife.   He defended the charge of murder on the basis that the verdict should be reduced to manslaughter on the grounds of provocation.

[14]     The appellant did not give evidence at trial but relied on his statements to the Police and others (he gave a lengthy video interview to Police which formed part of the Crown evidence at trial), and the evidence of various witnesses called by the defence.   The appellant’s accounts were somewhat conflicting.   Ultimately the provocative acts of Mrs Uluakiola upon which the defence could rely consisted of her  decision  to  leave  her  husband  and  take  the  children  with  her,  a  comment attributed to her that she would find another “fuck on the street” (when that comment was said to have been made is uncertain but it does not appear that it was made in the hours following her return from work at 9.30 p.m. on the night she was murdered), and the fact that Mrs Uluakiola swore at the appellant in the Tongan language.

[15]     The  defence  submitted  that  Mrs  Uluakiola  dominated  and  belittled  the appellant and that she was in the habit of swearing at him in Tongan using particular words which  made  fun of his epilepsy and  lack of education.    The  appellant’s epilepsy was put to the jury as a “special characteristic” but the Judge ruled against his Tongan ethnicity being treated as a special characteristic.

[16]     There were difficulties for the defence of provocation in the account given by the appellant of his actions which suggested they were considered and deliberate – going out into the back yard, cutting a branch to act as a machete, returning to his bedroom, lying on his bed for 20 minutes thinking about what he would do to his wife, going into the lounge and removing his sleeping ten year old son, and returning to the lounge with the weapon which he used to hit his wife on the head.  These facts were indicative of considered and deliberate actions rather than evidencing any loss of self control.  Further the evidence was that Mrs Uluakiola did not speak with her husband after returning from work the evening of the murder and she was in fact asleep when he attacked her.  There was no evidence that Mrs Uluakiola had used words that taunted or belittled the appellant at any time proximate to her death.

Jury questionnaire

[17]     A jury questionnaire was provided by the Judge to the jury at the start of his summing up.   The part in issue appears as part B under the heading “Count 1 –

murder”.    It follows part A which details the essential elements of the crime of murder and notes that the accused concedes the murder.

B.        Is there a reasonable possibility  Sione Uluakiola acted  under provocation?

Has the Crown excluded beyond reasonable doubt the possibility that:

1.        Kalolina  Ulukiola  acted,  on  21  February  2005,  towards  Sione

Uluakiola in a way he could have found provocative? YES/NO.

2.Kalolina Uluakiola’s acts of provocation deprived Sione Uluakiola of his power of self control and induced him to hill her? YES/NO.

3.Kalolina Uluakiola’s acts of provocation were sufficient to deprive an ordinary person with Sione Uluakiola’s characteristics [            ] of the ordinary power of self control? YES/NO.

If the answer to all of those questions is “yes”, then a verdict of guilty of manslaughter must be returned.  If any of those questions is answered “no” a verdict of guilty of murder must be returned.

(In relation to the bracket in 3., in summing up the Judge directed the jury that epilepsy was a distinguishing characteristic that they could attribute in this case).

[18]     It was common ground that the “Yes” and “No” in the box in part B of the jury questionnaire were mistakenly transposed.

[19]     Counsel for the appellant accepted that:

•   The questionnaire was provided to counsel in draft on the morning prior to the trial Judge commencing his summing up but counsel did not spot the error.

•  The Judge’s summing up was correct in relation to the defence of provocation.

•   The  jury asked  no  question  and  raised  no  issue  concerning  the  jury questionnaire, in particular part B.

[20]     We consider that it  would  be quite  counter-intuitive  for the  jury,  having worked through the questions and found that provocation had not been excluded by

the Crown, to reach a verdict of murder.  They had the benefit of a comprehensive summing up by the Judge on the provocation defence.   If at  any point  in their deliberations they had become confused by the direction in the box in part B, they would almost certainly have asked a question and sought clarification.

[21]     However, given the detailed and careful summing up by the Judge on the defence of provocation and the onus of proof the Crown carried to exclude provocation, the jury can have been left in no doubt or confusion that if there was a reasonable possibility of provocation the verdict was manslaughter not murder.

[22]     Thus while the error was unfortunate we are satisfied that it could not have led to a risk of a miscarriage of justice.  The first ground of appeal fails.

Tongan ethnicity

[23]     We propose to deal together with (ii) and (iii) of the appellant’s grounds of appeal.  They amount to a challenge to Ruling (No 2) of Keane J, the trial Judge.

[24]     The  issue  before  the  trial  Judge  which  gave  rise  to  Ruling  (No  2)  was whether the appellant’s Tongan ethnicity was a “special characteristic” which increased the gravity of the provocation in terms of the objective or “evaluative” test for provocation: R v Timoti [2006] 1 NZLR 323 at [33] (SC).

[25]     The  appellant’s  submission  was  that  his  Tongan  ethnicity  made  him particularly sensitive to his wife’s swearing and insults and to her decision to take custody of the children which, he maintained, undermined his position as father which was particularly important in Tongan families.

[26]     At the outset of Ruling (No 2) Keane J noted that in his closing address, counsel for the appellant had invited the jury to treat the appellant as having two distinguishing personal characteristics – that he was an epileptic (to which the Crown took no objection) and his Tongan background and upbringing.

[27]     The  Judge  referred  to  R  v  Rongonui  [2000] 2 NZLR 385 (CA) where

Tipping J stated at [233]:

In a case involving an asserted characteristic, the Judge must decide whether there  is  sufficient  evidence  of  a  qualifying  characteristic  to  entitle  the accused to have a defence based on that characteristic considered by the jury. The  question  is  really  two  questions:  first,  whether  there  is  sufficient evidence of a characteristic; and second, whether the asserted characteristic is a qualifying one in terms of the legal principles discussed above.

[28]     The Judge essentially excluded the second “characteristic” contended for by the defence on both grounds.   He stated at [18] in relation to the expert witness called by the defence, Mr Tu’inukuafe:

Mr Tu’inukuafe is, I accept, an educationalist and linguist with an authoritative understanding of Tongan language and culture.  What he is not qualified to express, however, I consider, is any authoritative comparative opinion.   He is not equipped to say how much more vulnerable, if at all, Tongan men might be to insults going to their lack of education or to the loss of their role as fathers than men of other ethnicities in New Zealand.

[29]     It was for the trial Judge to determine whether there was sufficient evidence of the characteristic claimed as a qualifying characteristic for the appellant to rely on it before the jury.  The Judge gave appropriate consideration to the opinion evidence of Mr Tu’inukuafe and decided that the evidence was not admissible as evidence of the claimed characteristic.  We consider his decision was clearly correct.

[30]     As to  the  asserted  characteristic  being  a  qualifying  one,  counsel  for  the appellant pursued in this Court essentially the same argument that  he developed before the trial Judge.   He contended for the wide understanding of distinguishing characteristics stated by the High Court of Australia in R v Masciantonio (1995)

183 CLR 58 at 67 as including “age, ethnicity, personal characteristics and physical features”.

[31]     Counsel  accepted  that  in  New  Zealand  R  v  Tai  [1976] 1 NZLR 102, a decision of a Full Bench of this Court, was binding on the trial Judge and that Keane J’s ruling involved an orthodox application of that decision when he stated at [14] and [15]:

[14]      In  this   country  the  ‘ordinary  person’   appears   to   have   been understood  more  generously  than  McHugh  J  thought  in Masciantonio to be open in Australia.  The diversity of our culture has long been accepted as compatible with the objective test.  In R v Tai [1976] 1 NZLR 102 at 106, McCarthy P said:

By ‘ordinary person’ is meant, naturally, an ordinary New Zealander – not one of exclusively British blood or background.   We have in this country a population of markedly mixed racial origins with, especially a substantial Polynesian minority.   What has to be contemplated by the trial Judge (and later the jury), difficult though it be, is an ordinary person in terms  of that  mixed society,  one who could be expected to react in the way people who commonly accept current standards react.   Would such a person have acted as the appellant did?

[15]      There is, so far as I am aware, no later decision of equivalent or higher authority in which that broad and sensible understanding of the ‘ordinary person’, and the necessarily elastic spectrum of characteristics that must imply, has been rejected or questioned.  It is to be applied in this case; and it is realistic to do so.

[32]     Keane J concluded at [22]:

I cannot accept, therefore, that Mr Tu’inukuafe’s opinion  evidence is an admissible or safe basis on which to instruct the jury that Mr Uluakiola, as a Tongan man, is to be distinguished from the ordinary New Zealander, under s 169(2)(a), in either of the two ways on which the defence now relies.  I will direct the jury that the only characteristic that distinguishes  him for that purpose is that he suffers epilepsy.

[33]     Having accepted that there was no challenge to the application by Keane J of the principle in Tai, Mr Wilkinson-Smith agreed that it would have been necessary to  request  a  Full Bench  of this  Court  if the  judgment  itself  was  to  have  been challenged.  It was not put to us that this was a case for this Court to overrule its earlier decision in Tai, so that will be a matter for the Supreme Court if there is a further appeal and leave is given.

[34]     However, given the decision of Keane J that the evidence of Mr Tu’inukuafe was not admissible as evidence of the claimed characteristic (with which we agree), there was no  evidential foundation  for  a special characteristic  based on Tongan ethnicity and background to be put to the jury.  We note also, Keane J’s observation at [16] of his Ruling (No 2) that the jury in this case was ethnically diverse and representative, and therefore ought to have been well capable of determining the

power of self-control of the ordinary New Zealander in the Tai sense. Further, as we have observed at [13] to [16], there were difficulties for the provocation defence in this case and it is perhaps debatable that there was a credible narrative to leave the defence to the jury. Any further appeal based on Tai may therefore be regarded as academic.

[35]     Mr Wilkinson-Smith’s concession effectively disposes of grounds (ii) and

(iii), which must fail.

Direction at [32] of the summing up

[36]     At [32] of the summing up Keane J directed:

It follows that if Mr Uluakiola deliberately decided to kill Mrs Uluakiola and acted on that intention it could not be said that her death was provoked by a loss of self-control.

[37]     Counsel for the appellant submitted that the direction was incorrect because the jury must first find the elements of murder proved including murderous intent and then consider provocation: R v Barton [1977] 1 NZLR 295 (CA), R v Campbell (1997) 15 CRNZ 138 (CA) cited.  He submitted that the direction may have caused the jury to think that proof of intention to kill excluded provocation.

[38]     It is clear that the Judge had previously in his summing up given a clear direction as to  murderous  intent,  had  included  murderous  intent  as  an  essential element of the crime of murder in the jury questionnaire, and had correctly advised the jury that the accused admitted murderous intent.

[39] At [32] the Judge was directing the jury about loss of the power of self- control in the context of the defence of provocation. His reference to “deliberately decided to kill” involved the use of a nuanced term to contrast a state of passion and hot blood such that the appellant ceased to act rationally to which he had referred at [30]. The key, he directed the jury at [31], was loss of self-control that caused the killing.

[40]     Counsel for the appellant accepted that, taken in context, the direction at [32] could not have caused the jury to be confused into thinking that proof of intention to kill (which was admitted), excluded the defence of provocation.  But he nevertheless submitted that a combination of this direction and the error in the jury questionnaire addressed  above,  could  have  resulted  in  the  jury  dismissing  the  defence  of provocation too readily.

[41]     We do not agree.  As the Crown observed, the jury was presented with two starkly opposed versions of events.   The defence contended that the appellant was acting in a transport of passion as the result of his wife’s provocative acts.   The Crown alleged that the appellant  was fully in command of himself and that  his actions were planned and deliberate.  The Judge fully and carefully directed the jury on intention to kill as an element of the crime of murder, and on the defence of provocation.  We do not consider there was any risk of confusion by the direction given in [32] of the summing up, when it is considered in context.

[42]     The appeal against conviction for murder is dismissed.

Appeal against conviction – threatening to kill

[43]     The appellant’s ground of appeal was that the verdict on this charge was against the weight of evidence.

[44]     Mele Sandys, the victim in relation to this charge, gave evidence that she heard the appellant say:

Now I am going to kill you.

[45]     Another witness called by the Crown, Falakesi Uluakiola, the 13 year old daughter of the appellant, gave evidence that the appellant said:

Now I am going to smash them.

Her evidence was read to the Court.

[46]     Counsel for the appellant sought to make something of the fact that the brief of evidence of Falakesi was read and the Judge directed the  jury that  briefs of evidence that were read “… were not contested”.   It was submitted that the jury’s decision to ignore the written evidence was unreasonable.

[47]     The reason why certain briefs of evidence were read was explained to the jury by Keane J: that it was done with the consent of the appellant’s counsel and they were not contested.   He had clearly instructed the jury that findings of fact and decisions about the truthfulness and accuracy of witnesses were for them alone.

[48]     At [66] of the summing up in relation to the charge of attempted murder, he specifically drew the attention of the jury to the importance of the actual words the appellant used.  He said:

Now the Crown in this aspect of the case relies on Mele Sandys saying in evidence in chief and re-examination that he said to her that he intended to kill her, and that he chased her to the bedroom, and tried to get in when she resisted it, and then, when he did get in, she jumped out the window.   The defence relies on her more equivocal evidence, when she was cross- examined.  She did not exclude the possibility that he said he intended to hit her.  So the question is, what words did he use?  Did he use “kill” or did he use “hit” and what significance does that have in the context of the whole? That is for you to decide.

[49]     In considering the evidence of Mele Sandys the jury would have been aware not only of her  evidence given  in  chief  and  in  cross-examination,  but  also  the following questions and answers in re-examination:

You were asked questions by my learned friend about strike or hit.  I’m not asking you about what you thought was going to happen but what was said?

Yeah.

Okay, do you understand the difference? Yes.

What was said by Sione?

Yes, he said he’s gonna kill me tonight.

Okay, did he use the word “hit”, it would’ve been in Tongan?  Did he use that at all?

No, it’s “kill”.

[50]     In the not uncommon situation where witnesses for the Crown gave slightly varying versions of the same events or statement, it was for the jury to decide which evidence to accept or reject, as the jury thought fit.  The evidence of Mele Sandys, if accepted by the jury, provided a proper foundation for the verdict.

[51]     This ground is without merit.  The appeal against conviction on the charge of threatening to kill is dismissed.

Appeal against sentence

Murder

[52]     Keane J, the trial Judge, sentenced the appellant for the murder of his wife on the  basis  that  the  offending  fell  within  s  104  of  the  Sentencing  Act  2002,  in particular s 104(e), that the murder was committed with a high level of “brutality, cruelty, depravity or callousness”.  He sentenced the appellant to life imprisonment with a minimum period of imprisonment of 17 years.

[53]     Counsel for the appellant conceded that the requirements of s 104 were met in this case and that accordingly, a minimum period of imprisonment of at least

17 years was required unless to impose that period would be manifestly unjust.  The sole focus of the appeal against sentence for the murder was that in all the circumstances, the minimum period of imprisonment of 17 years was manifestly unjust.

[54]     Having  determined  that  the  appellant’s  offending  fell  within  s  104(e), Keane J turned to consider whether it would be manifestly unjust to impose a 17 year minimum term.  He considered first aggravating features of the offence in addition to those which brought the offending within s 104(e), noting the degree to which the appellant planned the offence, his deliberate choice of weapon, and the timing of the attack so that the appellant’s wife was completely defenceless.  He considered these features  in combination to  be a factor to  be taken  into  account.    Secondly,  he considered insight and remorse, noting that the pre-sentence report was unequivocal

that the appellant’s focus was not on his own responsibility for what he did, to the contrary placing responsibility on his wife and her cousins for leading him to offend.

[55]     The Judge also referred to the report of Dr Simpson obtained by the defence who, the Judge noted, was a very experienced forensic psychiatrist who had interviewed the appellant within two weeks of the offending and noted that there may have been an onset for the first time in the appellant’s life of a major depressive episode precipitated by his wife’s decision to end the marriage.

[56]     The Judge also referred to the other serious offending of which the appellant was convicted, particularly causing grievous bodily harm to Mele Sandys.

[57]     As to the mitigating factors advanced for the appellant, the Judge concluded at [43]:

While then I see some force in your counsel’s submission that it would be manifestly unjust to impose the minimum term on you, I am unable to go that distance.   The mix of factors I have identified is to the contrary.  The result will be that you will be sentenced to a minimum term of 17 years under s 104(e).

[58]     On appeal counsel for the appellant submitted that insufficient weight was given to mitigating factors which were identified as:

(i)       The appellant had a depressive episode which triggered the suicidal and homicidal behaviour;

(ii)       The appellant admitted killing his wife and murderous intent – the only issue for the jury was provocation;

(iii)      Prison will be more difficult for the appellant because of language problems;

(iv)      First offender;

(v)       Previous good character.

[59]     Counsel accepted that all except the second of these factors were related to the offender rather than the offence and therefore, as stated in R v Williams [2005]

2 NZLR 506 at [66], they would rarely displace the presumption in s 104 that a

17 year minimum period of imprisonment was to be imposed for the most serious murder cases.

[60]     At [67] this Court went on to say in Williams:

We conclude that a minimum period of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside  the  scope  of  the  legislative  policy  that  murders  with  specified features are sufficiently serious to justify at least that term.  The conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder.   In that sense they will be exceptional but such cases need not be rare.

[61]     All the factors submitted to us as being factors in mitigation were before the sentencing Judge, who had the advantage of also being the trial Judge.  They were part of the material available to him in determining “as a matter of overall impression”  whether  this  case  fell  outside  the  scope  of  the  legislative  policy expressed in s 104.  The weight he accorded to them was a matter for him.

[62]     We note that the authorities cited by the appellant in submissions where the Court has recognised that reduced culpability of the offender required specific acknowledgement in the sentence imposed, took into account clear diagnoses of the offender’s psychiatric condition: R v Dick CA177/01 24 July 2001 – a major depressive illness at the time the offender committed sexual violation, diagnosed by three psychiatrists; R v Bridger [2003] 1 NZLR 636 (CA) – bipolar disorder previously undiagnosed where the prisoner attacked two women causing horrific injuries; R v Harrison-Taylor HC AK CRI 2004-092-001510 12 September 2005 – murder of a baby by its mother where the Court found “a unique combination of circumstances such that overall a 17 year term would be manifestly unjust”, based primarily on the evidence of a forensic psychiatrist.

[63]     Here the Judge considered the report of Dr Simpson which was based largely on the self reporting of the appellant and did not offer a conclusive diagnosis.  The weight to be attached to it was for the sentencing Judge.

[64]     We   further   note   that   there   is   no   evidence   that   prison   will   be “disproportionately severe” for the appellant because of his limited English.  Reports submitted on sentencing suggest the appellant has participated in prison programmes and mixes well with other prisoners.

[65]     As to the second mitigating factor advanced for the appellant, we accept the submission for the Crown that it is untenable the appellant should receive some reduction because he admitted the elements of murder.  Not only was the concession inevitable in the circumstances, but the appellant maintained the defence of provocation which necessitated a full trial and which was ultimately rejected by the jury.

[66]     All relevant factors were before the Judge and there is no basis upon which the exercise of his sentencing discretion, in determining whether a 17 year minimum period of imprisonment was manifestly unjust, should be disturbed.

Grievous bodily harm

[67]     The sentence imposed was 11 years which was imposed concurrently with the sentence for murder.  The length of the sentence is therefore academic.   While the sentence imposed was at the high end of the third category in R v Taueki [2005]

3 NZLR 372 (CA), it was within the range available to the Judge and cannot be said to be manifestly excessive.

[68]     The appeal against the sentences imposed for murder and grievous bodily harm is accordingly dismissed.

Result

[69]     The appeals against conviction and sentence are dismissed.

Solicitors:

Crown Law Office, Wellington