R v William Stanley Yesler HC Ak CRI-2005-090-843

[2006] NZHC 367

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-090-843

QUEEN

v

WILLIAM STANLEY YESLER

Hearing:         10 April 2006

Appearances: Ms C Gordon and Mr S Walsh for Crown

Mr P A Williams QC and Mr P Eastwood for accused

Judgment:      10 April 2006 at 4.53 pm

Reasons:        5 May 2006

REASONS FOR JUDGMENT OF LANG J [re defences to be left to jury]

Counsel:

Mr P A Williams QC, P O Box 78133, Auckland

Mr P Eastwood, P O Box 4362, Auckland
Solicitors:

Meredith Connell, P O Box 2213, Auckland

R V WILLIAM STANLEY YESLER HC AK CRI-2005-090-843  10 April 2006

[1]      Mr Yesler was charged with murdering his wife.   He stood trial in this Court between 27 March and 13 April 2006.    On 13 April 2006 the jury returned with a verdict of not guilty of murder but  guilty of manslaughter on the basis that the Crown had failed to prove murderous intent.

[2]      At  the beginning of the trial Counsel  for the accused  confirmed  that  he proposed to advance defences based on both non-insane and insane automatism, as well as the partial defence of provocation.   At the conclusion of the evidence on 10

April 2006 I heard argument from the Crown and the defence regarding these issues. At the conclusion of argument I ruled that the defence of non-insane automatism was not to be left to the jury, but that the defences of insane automatism and provocation would be.    In addition, I ruled that there was sufficient evidence that Mr Yesler possessed certain characteristics that those should also be left to the jury in assessing the provocation that is said to have been offered by Mrs Yesler in this case.     I indicated at the time that I would subsequently give reasons for  my decision in writing.   This I now do.

The Crown case

[3]      In January 2005 Mr and Mrs Yesler had  been married  for approximately

14 years.    At the date of Mrs Yesler’s death they lived in a house situated at 94D Colwill Road, Massey.

[4]      Mr Yesler is an American.     He met Mrs Yesler while she was living in America in 1991.    Mr and Mrs Yesler lived in Florida until approximately 1997, when they came to New Zealand to live.

[5]      Mr and Mrs Yesler decided to return to New Zealand because Mr Yesler faced  financial  difficulties  in  the  United  States.      Although  he  had  previously operated a successful timber and hardware business, the proceeds of sale of that business had apparently been dissipated, if not completely consumed, as a result of Court proceedings taken against Mr Yesler by his former wife.   When they came to

New Zealand Mr Yesler still owed significant sums of money to creditors in the

United States.

[6]      Their return to New Zealand was not particularly easy.    Due to his age and lack of capital Mr Yesler was unable to acquire a business in his chosen field, timber and hardware.    The couple stayed in Hamilton for a short while before eventually moving to Auckland, where Mr Yesler had bought a shop that sold adult supplies.

[7]      Mr Yesler had had a conservative upbringing, and the prospect of working in the adult supplies business was anathema to his core principles.    He also found it difficult to deal with some of the more unusual customers that frequented his shop.

[8]      Although Mrs Yesler was a qualified nurse, she did not want to continue in that field.    Instead, she initially obtained work in Auckland teaching at a language school.   When this position became redundant she took up a part-time position as a teacher’s aide at Colwill Primary School.   She eventually gave this work up because it did not provide sufficient income to meet the needs of the couple.   She then sent flyers   around   neighbours  offering   to   perform  gardening   services   for   them. Gardening was evidently one of her passions.

[9]      Mrs Yesler clearly missed the lifestyle that the couple had enjoyed whilst living  in Florida.     No  doubt  she also  found the financial constraints that  were imposed upon them in New Zealand to be unwelcome.   From time to time she made reference to the fact that their present financial position was only due to the mess that Mr Yesler had made of things in the United States.

[10]   From time to time Mr and Mrs Yesler discussed possible avenues of employment for Mrs Yesler.   She had indicated an interest in applying for a job as a receptionist  or  administrator  at  local  massage  parlours,  and  had  gone  so  far  as applying for two positions.     This was a matter of considerable concern for Mr Yesler.   He felt that he had failed to properly provide for his wife, and that he was to blame for the fact that she could be contemplating such employment.     On one occasion in October 2004, a discussion regarding this topic led to an incident that is of some significance in this proceeding.    At the conclusion of the discussion Mr

Yesler went to the kitchen, picked up a large knife and pressed it to his chest.    He told his wife to push the knife into his chest so that he could “finish the job”.   Mrs Yesler diffused the situation by telling him not to be ridiculous and to come back and finish his dinner.

[11]     By December 2004 Mr Yesler had concerns regarding his financial future. He had substantially increased the mail order side of his business so that the turnover had  grown  from  approximately  $50,000  to  $250,000.      He  had  been  advised, however, that the cost of videotapes was about to rise sharply as a result of the predominance of DVDs in the market.   This was a matter of great concern to him, as was the fact that he had significant bills to pay in January 2005.

[12]     In January 2005 Mr and Mrs Yesler took a holiday in the South Island.   This was the first break that they had had for some time and both of them clearly enjoyed it.   They spent time looking for a tea shop that Mrs Yesler and her sister might be able to operate in the future.    It is therefore not surprising that Mr Yesler did not enjoy returning to work in January 2005.

[13]     It is against that background that the events of 19 January 2005 need to be considered.

The events of 19 January 2005

[14]     Mr Yesler says that he left for work at the usual time of approximately 8.30 am.   As usual he called in at the post office, the bank and his videotape supplier on the way to work.   He says that when he got to work he did not feel like being there. His mood did not improve during the day, because he was busy and had several difficult customers.    In addition, he was unable to finish his lunch because he was interrupted by telephone calls.    Matters were exacerbated by the fact that he was suffering from a bad headache.     He took a number of anti-inflammatory tablets (Nurofen) to ease this, notwithstanding the fact that he was aware that the tablets could adversely affect a bowel condition that he suffered from.    He says that the events of the day served to accentuate his feelings of distress and irritability, and that

he felt frustrated about being trapped in a situation that he did not like.   He was still edgy and irritable when he left the shop at the usual time of 6 pm.

[15]     When Mr  Yesler  returned  home he  found  his  wife  sitting  in  the  lounge drinking a glass of wine and eating cheese and crackers.    He washed his face and took out his contact lenses.  He then kissed his wife before walking upstairs to his computer room, where he put his briefcase down.   He then went into the bedroom to remove his hearing aid and replace it with the hearing aid that he used to watch television.     He then went downstairs, where he made himself a drink of Scotch whisky on ice and sat down to chat to his wife.

[16]     During this conversation Mrs Yesler told him that she was applying for a job as a housemaid.    He was disturbed by the fact that a woman with her education would be considering the prospect of such a lowly job.    She also told him at this time that he was “grilling”, which he took to mean that he would be cooking the dinner on the barbecue as he often did.     He said that they watched the weather forecast at the end of the news, and that he then started the barbecue in readiness for cooking the evening meal.    He expected at that time that they would follow their usual habit of watching “Triangle News” at 7 pm.    Instead, however, Mrs Yesler said that they should watch a videotape that she had recorded the previous evening. The tape was about prostitution in the United Kingdom.    Although Mr Yesler was not happy at the prospect of watching the videotape, he nevertheless agreed to do so.

[17]     Mr and Mrs Yesler watched the videotape for approximately 15 minutes.   He particularly remembers one part of the documentary in which a woman in her early fifties explained the nature of her work and her feelings about it.    He recalled her saying that she had a “thriving business doing oral sex only”.  He then remembers his wife saying words to the effect that “there is still hope for me at 50, it’s only oral sex, that couldn’t be too bad”.

[18]     Mr Yesler says that when he heard this, it had an enormous effect on him.   It reinforced to him everything that was negative about the sex business and what he was doing.   It made him feel depressed, and that he was not good enough.   He felt low in mood, irritable, frustrated and angry with himself rather than with his wife.

[19]     He told his wife at that time that he had had enough of the sex business, and he did not wish to watch the videotape any further.   He then got up and went outside to grill the chicken on the barbecue.    When he did so he immediately noticed that the chicken was too thick to grill, so he tapped on the kitchen window and asked his wife to cut the chicken in half in order to allow it to cook without burning.   At that point his wife told him that she would cook the chicken inside, and that he should just come in and relax.

[20]     Mr Yesler says that he turned off the grill, went into the house and walked up the stairs.    Although he seems unsure about his purpose in doing so, he presumes that he was going to do paperwork as he would normally do.   Mr Yesler says that as he was walking up the stairs he was feeling pressure in his head and the temperature around him appeared to become very hot.    He does not recall how long he was upstairs for, and next remembers walking down the stairs.     At that time things around him seemed unreal.     He said that everything was maroon, like “looking through a stained glass window”.   He then has no further recollection of events until he found himself kneeling on the floor in the lounge by a sofa.    He had a kitchen knife pointed to his chest.    He could feel the point of the knife against his chest, although it was not breaking the skin.   He then looked over to the kitchen and saw his wife lying on the floor in a pool of blood.     At that  point  he  immediately telephoned 111 and told the police that he had killed his wife.

[21]     The police arrived a short time later.    Mr Yesler answered the door, still holding the knife.   When he refused to put down the knife, they pepper-sprayed him and  he was handcuffed and taken outside.      At that  point,  and  for  some  hours thereafter, Mr Yesler repeatedly said that he had killed his wife and that he wanted to kill himself.   He said over and over again that he “had to die”.   A lengthy interview at the police station a short time later elucidated only comments to this effect and nothing otherwise of evidential value.

[22]     Against that background Mr Yesler’s counsel wishes to advance the defences of both sane and non-insane automatism.     He also wishes to advance the partial defence of provocation.

The proposed defences

1.       Automatism

[23]     Five psychiatrists gave evidence at the trial.    Two of these, Dr Mendel and Dr McCormick, said that at the time that he killed his wife Mr Yesler is likely to have been in a dissociative state caused by the events that took place after he sat down in the lounge to have a drink with his wife.    They say that in this state it is possible that Mr Yesler acted in an automatic way so  that he had no  conscious control over his actions.    Dr McCormick took the view that the version of events described by Mr Yesler was “consistent with Mr Yesler moving from a stressed state to a disassociated state and then to him then acting in an automatic way at the time of the described offence”.    He said that he believed that Mr Yesler’s actions “were consistent with his having acted as an automaton at the time that he stabbed” and that “therefore the suggestion that this was automatism was a considerable probability in this case”.

[24]     Dr Mendel took the view that there was sufficient evidence in the case to raise the probability of automatism.    He could not find another explanation for Mr Yesler’s actions.    He went so far as to say that it was “not a possibility” that Mr Yesler had conscious awareness at the time that he stabbed his wife.    He said that any other explanation, although possible, did not seem to be consistent with Mr Yesler’s personality and past history.    Although other psychiatrists called to give evidence at the trial had not been asked to examine this issue or took a contrary view, the Crown accepts that the evidence to which I have referred is sufficient to raise the issue of insane automatism.   It says, however, that the issue of non-insane automatism should not be left to the jury.

[25]     The issue is one of practical importance.   First, the Crown will bear the onus of negativing any reasonable possibility that the stabbing was carried out in a state of non-insane automatism.    The defence, on the other hand, would bear the onus of proving that it was more likely than not that Mr Yesler was acting in a state of insane automatism at the time that he killed his wife.   Secondly, the issue has importance in terms of disposition.   If the jury accepts that there was a reasonable possibility that

Mr Yesler was in a state of non-insane automatism at the time that he killed his wife, Mr Yesler will be entitled to an absolute acquittal.    If, on the other hand, the jury accepts that he was acting in a state of insane automatism, the acquittal will be qualified, and Mr Yesler would be subject to the provisions of the Mental Health (Compulsory Treatment and Assessment) Act 1992.

The law

[26]     In considering this issue, the cause of the automatism is the key issue.    If it was caused by a disease of the mind, the appropriate verdict will be one of not guilty on the grounds of insanity.    If there is no disease of the mind, it will be a case of sane automatism:  R v Cottle [1958] NZLR 999: Bratty v Attorney-General [1961] 3

All ER 523.

[27]     Whether or not a disease of the mind is present  is a legal, rather than a medical, concept.   A test often cited in determining whether there is a disease of the mind is that articulated by Lord Denning in Bratty where he said (at 534):

It  seems  to  me that  any  mental  disorder  which  has  manifested  itself  in violence and is prone to recur is a disease of the mind.   At any rate, it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal

[28]     Citations such as this have given rise in the past to a suggestion that one aspect of the test is whether there is a possibility of “recurring danger”.    Another approach to the matter has been to determine whether or not the automatism was caused by a factor that was internal or external to the accused.

[29]     The latter approach was taken by the Supreme Court of Canada in R v Rabey (1980) 114 DLR (3rd) 193. In that case the Court endorsed the internal/external tests that had been applied by Martin J in the Court of Appeal below.

[30]     The case of Rabey concerned a shy, introverted student, who had taken a liking to a fellow outgoing female student.   His feelings were not reciprocated.   He discovered this when seeing a letter she had written.   The letter referred to Rabey as a “nothing”.  A day later, when talking to the female student, Rabey asked her what

she thought of him.   She told him he was “just a friend”.   Rabey then hit the woman on the head with a rock and began strangling her.     A psychiatrist called by the defence at trial testified that the accused had entered into a complete dissociative state, performing physical actions without consciousness of his actions.   Such a state had been brought on by the emotional shock of the victim’s rejection.

[31]     In determining whether there was a disease of the mind, which would result in a finding of insane automatism, the majority endorsed the following passage from the judgment of the Court of Appeal:

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that  is  primarily  internal  to  the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced.

[32]     The internal/external test was applied by Fisher J in the well-known case of Police v Bannin [1991] 2 NZLR 237. In that case Fisher J rejected the “recurring danger” test in determining whether there was a disease of the mind. He explained the policy issues that arise in this context in the following way:

Public policy underlies the distinction drawn between sane and insane automatism.   The principal consideration is that if a person is so predisposed to dissociation that he may lose control of his conduct in  circumstances which other members of the community would be able to cope with, he is likely to be a continuing danger to the community …    As the problem is essentially “internal” to the accused, some form of treatment or oversight is then warranted to protect the community notwithstanding the absence of fault.     The contrary is true if the abnormality had had an extraordinary external cause such as a blow, ingestion of harmful substance or a personal catastrophe beyond the normal lot of mankind.    Since the external event is unlikely to be repeated, there is little risk that the harmful behaviour will be repeated.

The law stops short of an unqualified acquittal even for those with a strong case that notwithstanding the internal nature of their disease there is little or no danger of repetition … a sounder basis for denying unqualified acquittals even where repetitions of antisocial conduct are unlikely is probably the purely pragmatic view than in matters of mental abnormality, science can never  provide complete certainty  …    If  the condition  is  classified  as  a “disease of the mind”, and the accused receives only a qualified acquittal, control is  retained …  and the accused’s  future care and  control  can  be monitored to meet his needs thereafter.   I think the approach in Rabey is the right one and should be followed in New Zealand.

[33]     Two years later, in Ericsson v Police (1993) 10 CRNZ 110, Blanchard J cited Rabey and applied the internal/external approach.    He suggested, however, that he was not particularly satisfied with the applicability of the approach in all circumstances.     In particular, he found it difficult to see how the test could be applied to activities such as sleepwalking, notwithstanding that  sleepwalking has traditionally been held to amount to a classic form of automatism.

[34]   The most recent and comprehensive examination of the principle that automatism caused by a “psychological blow” has resulted from a disease of the mind can be found in the case of R v Stone [1999] CSR 290.     In that case the accused and his wife had been arguing about whether the accused should visit his sons from a previous marriage.    During a journey by car to Vancouver where the sons lived, the wife had continued to berate the accused.   The visit then lasted only

15 minutes due to the wife’s conduct.    On the drive home, the wife continued her verbal assault on the accused.   The accused said that his wife called him a piece of shit, that she had told the police lies about how he had abused her, that he would get arrested, that every time he touched her she felt sick and that he had a little penis and would never be able to fuck her again.   All of a sudden, the accused remembered feeling a “whoosh” sensation.    The next thing he knew, he was holding a six-inch hunting knife and he could see his wife slumped on the seat.    His wife died from loss of blood resulting from 47 stab wounds.

[35]     Psychiatric  evidence  showed  that,  while  the  accused  had  no  medically recognised psychiatric disorder, the accused’s account of the facts was consistent with a dissociative episode caused by psychological blows, although, according to the Crown psychiatrist, it could also have been consistent with rage.

[36]     The  majority  in  the  Supreme  Court  took  a  holistic  approach  to  the determination of whether the accused suffered from a disease of the mind.    They looked at the internal/external test, they considered whether there was a risk of recurring episodes of such behaviour, and they considered issues of policy in determining whether they should find that the accused was suffering from a disease of the mind.   All of these approaches were relevant considerations, and would be of greater or lesser assistance depending on the circumstances

[37]     In writing for the majority, Bastarache J said (at [204]) that the approach of the majority in Rabey had been correct.     If the psychological blow or trigger is sufficiently shocking that an ordinary person might go into an automatistic state, the proper verdict is one of non-insane automatism.    However, if the ordinary person would not go into such a state, in other words, if the blow is no more than part of the ordinary stresses and disappointments of life, this will point to an internal cause and consequently a disease of the mind.

[38]     Bastarache J also confirmed (at [209]) that in considering how an ordinary person would  have  dealt  with the  psychological blow, the  circumstances  of the accused must be taken into account.   He cited with approval the contextual objective test as formulated by the High Court of Australia in R v Falconer (1990) HCA 49. This was that “the accused’s automatistic reaction to the alleged trigger must be assessed from the perspective of a similarly situated individual. This requires that the circumstances of the case be taken into account.” He emphasised (at [210]), however, that it was not a subjective test.

[39]     In considering the issue of continuing danger, Bastarache J noted (at [214]) that Judges were entitled to take into account the evidence before them in order to assess the likelihood of the recurrence of violence.   He suggested, however, that two issues would be particularly relevant to the issue.   These were the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

[40]     In considering other policy factors, Bastarache J accepted that there might be cases “in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question”.   For that reason he was of the view that a holistic approach to disease of the mind must also  permit  trial  Judges  to  consider  other  policy  concerns  which  underlie  this enquiry.   These include matters such as whether society requires protection from the accused and whether  the accused should be subject  to ongoing supervision  and evaluation.     The credibility of the criminal justice system may also  need to  be considered in this context.

Application of principles to the present case

[41]     In the present case I propose to adopt the holistic approach adopted by the Supreme Court of Canada in Stone.   In my view, however, the result would be the same regardless of which test is used.    The trigger, or psychological blow, in the present case flows from the events that occurred after Mr Yesler sat down in the lounge to have a drink with his wife.   In particular, it comprises the comments that she made to the effect she had applied for a job as a housemaid.   Coupled with that, there is Mrs Yesler’s request that they watch the documentary about the activities of prostitutes in Great Britain together with the documentary itself.    Finally, there is Mrs Yesler’s remark to the effect that there was hope for her in the sex industry at the age of 50 and that oral sex was not too bad.   The fact that the chicken was too thick may also have been a factor that aggravated the situation.

[42]     In considering the likely effect of these matters on the ordinary person I need to take into account the context within which they occurred, and in particular, the financial situation in which Mr Yesler found himself and the suggestions that Mrs Yesler had made on other occasions that  she proposed to  seek work in the sex industry.

[43]     Viewing  those  matters  objectively,  I  conclude  that  no  reasonable  jury properly directed could reach the view that these would amount to such an extreme shock or psychological blow that it might cause an ordinary person in the accused’s circumstances to enter into  an automatistic state.     I consider  that these  factors amount to no more than the stresses and disappointments that can ordinarily be expected in life.   They come nowhere near the category of the case referred to above at [32] where emotional shock without physical injury may give rise to a dissociative state.   In this case, if Mr Yesler did enter into such a state, I am satisfied that it must lie in his internal psychological, psychiatric or emotional makeup.

[44]     I also consider that, applying the recurring danger test, there is a possibility that Mr Yesler may pose an ongoing danger in respect of violent episodes.   This is because of his past history and behaviour.

[45]     In reaching this conclusion I put to one side psychotic episodes that occurred in 1972.    At this time he was taking medication (prednisone) to control recently diagnosed inflammatory bowel disease.     The psychiatrists were of the view that prednisone carries an inherent risk of inducing psychotic behaviour, and that the behaviour that he exhibited at this time is likely to have been caused by the drug. For that reason I propose to put these episodes to one side.   I note that in her closing remarks to the jury Crown counsel suggested that the jury do the same.

[46]     The evidence suggests that Mr Yesler continued to be subject to medication for his bowel disorder for approximately 10 years.   It took until 1982 for him to be completely weaned off the medication.

[47]     However, in a questionnaire prepared for Dr Mendel, Mr Yesler spoke of two other episodes involving violence.   One of those episodes occurred when Mr Yesler became angry after his wife began eating from a jar of nuts in circumstances where she had recently been endeavouring to lose weight.   He grabbed the jar of nuts and threw them out the window of the car in which they were travelling.   As he did so he hit her on the nose and bloodied it.

[48]     Mr Yesler also described an incident in 1979, when he became unhappy with the actions of his father-in-law at a family gathering.    Mr Yesler immediately told his then wife to get in the car and that they would be leaving.     He also told his father-in-law that, “his next meal would be through a straw”.

[49]     In addition, Mr Yesler described episodes in or about 1977 when he would become subject to rages.    He said that this occurred during the period in which he was being taken off medication.

[50]     Finally, Mr Yesler told Dr Goodwin about other episodes in which he had become irritable or aggressive when he was under stress or particularly anxious.   He said that this sometimes caused him to be withdrawn and rude.    At other times he was angry although he said that he was angry at himself rather than at others.

[51]     Mr Yesler confirmed in cross-examination that after the period when he was on the medication in the 1970s he could control his temper better than when he had been over-medicated.   He said that later, whilst he found he had to exert more self- control than normally necessary, he contained his composure in most cases.

[52]     The impression I gain from this evidence is that at times of stress there is a possibility that Mr Yesler made become irritable and angry, albeit at himself.    In such circumstances he may find it difficult to maintain self-control.

[53]     Moreover, there is ample evidence to suggest that during December 2004 and January 2005 Mr Yesler was suffering from a depressed mood and anxiety.   Dr Mendel could not discount the possibility that at that time he was in fact in the throes of developing a full blown depressive disorder.

[54]     In addition, Dr Mendel gave evidence that he considered Mr Yesler’s hearing loss was also a possible area of vulnerability because hearing is connected to the brain.  It could also have contributed to his sense of depression.

[55]     More importantly, Dr Mendel also considered that aspects of Mr Yesler’s personality were important in the context of explaining how he had reacted to the events on the evening of 19 January 2005.  He considered that Mr Yesler displayed traits consistent with what might be called an anankastic, or obsessive compulsive, personality.    He said that persons with those characteristics are:

…characterised by feelings of excessive doubt and caution, doubt of themselves and very cautious all the time, preoccupation with details, rules, lists, order, organisation or schedule.   Perfectionism that interferes with task completion in other words makes it difficult to complete tasks because they have to be so right.     Excessive conscientiousness and they are over conscientious scrupulousness and undue preoccupation with productivity to the exclusion of leisure and inter personal relationships it interferes  with that.   Excessive pedantry in adherence to social conventions, they tend to be pedantic at times, prickly, rigidity and stubbornness, unreasonably insistent by the patient or the person that others submit to exactly their way of doing things or unreasonable reluctance to allow others to do things because things have to be so precise in their minds.

[56]     Dr Tapsell, who was called in rebuttal by the Crown, confirmed that in the assessment of personality there is a degree of cross-over, or overlap, between those traits and traits of a narcissistic nature.  The narcissist, according to Dr Tapsell,

has a certain set of expectations of others and from life.   The narcissist can be quite rigid have very high and at times unrealistic expectations they can at times appear somewhat haughty or rude they have a very strong sense that their  perception  of  events  is  correct  and  they  have  great  difficulty  in accepting that others perception may be relevant or correct.

[57]     This evidence is important, because it may provide an explanation as to why Mr Yesler reacted in the way that he did to the comments made by his wife on the evening of 19 January 2005.  It is also reinforces the view that his reaction is highly likely to have been caused by his internal makeup and not as a result of experiencing an event that would be likely to cause an ordinary person to act in that way

[58]     These factors also persuade me that, there is a possibility that Mr Yesler may resort to violence in the future.   It is also important, as a matter of policy, that there is a degree of oversight over Mr Yesler in the event that he is found to have acted whilst in a state of automatism.     For the reasons set out by Fisher J in Police v Bannin, I do not consider that Mr Yesler should be subject to an unqualified acquittal even if there is little or no danger that he will repeat the conduct that has given rise to the present charge.   I take the view that in this case science cannot provide complete certainty  regarding  the  ultimate  prognosis  for  Mr  Yesler.      By  classifying  the condition as a “disease of the mind” a degree of control is retained and Mr Yesler’s future care and control can be monitored to meet his needs.

Conclusion

[59]     If Mr Yesler was acting in a state of automatism when he killed his wife that state arose from a disease of his mind.    As a result, there could be no basis upon which the defence of non-insane automatism could be left to the jury.

2.       Provocation

[60]     The provocation relied on in the present case is Mrs Yesler’s conduct on the evening of 19 January 2005.  In particular, the defence rely on her insistence that Mr

Yesler  watch  the  videotape  about  prostitution  and  Mrs  Yesler’s  subsequent comments to the effect that there was hope for her in the sex industry at the age of

50, that it was only oral sex and that that was not too bad.  The defence contend that, when those comments are viewed in the light of all that had gone before, there is sufficient evidence of conduct amounting to provocation to go to the jury.

[61]     The Crown did not seriously contend that I should not leave provocation to the  jury  given  the  evidence  to  which  I  have  referred.    The  Crown  submitted, however,  that  Mr  Yesler  did  not  possess  any  special  characteristics  that  were relevant to the issue of the sufficiency of the provocation in the present case.

[62]     I agree that there is sufficient  evidence to provide a basis for the partial defence of provocation.   I am also of the view that there is sufficient evidence to allow   the   jury   to   conclude   that   Mr   Yesler   possessed   the   following   two characteristics:

1.        An obsessive or narcissistic personality that in times of stress leaves him vulnerable to suggestions that his wife might become involved in the sex industry.

2.        Hearing loss  that  may  impair  his  ability  to  identify  the nuances contained in comments directed to him.

[63]     If the jury accepts that it is reasonably possible that he did, the characteristics are relevant to the issue of the sufficiency of the provocation, because they may explain why Mr Yesler reacted to the provocation in the manner that he did.  In other words, they might explain why Mrs Yesler’s words and conduct may have been sufficient to deprive Mr Yesler of the power of self-control when they might not have been sufficient to cause the ordinary person to do so.

Lang J