The Queen v Colin Richard Warren - [2000] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 315/00

THE QUEEN

COLIN RICHARD WARREN

Hearing:	8 November 2000
Coram:	Richardson P Gault J Thomas J Blanchard J McGrath J
Appearances:	L J Postlewaight and C J Milnes for Appellant J C Pike for Crown
Judgment:	20 November 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

This appeal is against the conviction of the appellant, Colin Richard Warren, on a charge of murdering Norman Lama. It was common ground at the trial that Mr Warren had fired a series of shots and killed Mr Lama At issue was whether he had murderous intent at the relevant time and was not acting in self‑defence or under provocation. The grounds of appeal are largely directed to the summing up by the trial Judge.

The factual background

Mr Lama was an acquaintance of Mr Warren.   Mr Warren was a 36 year old sickness beneficiary who had had muscular dystrophy for many years which impaired his movements.   Mr Lama was a large powerful man, 6' 3" in height and weighing around 300 pounds.   Late on the night of 25 November 1999 he was at Mr Warren's house.   According to Mr Warren's evidence at trial, Mr Lama asked him for a loan of $7,000 to buy a car, got angry when he was turned down, got more heated and verbally abused Mr Warren, punched Mr Warren in the mouth, was ordered out of the house, grabbed a knife off a rack on the wall, waved it, and threatened to kill Mr Warren.   Mr Warren's evidence was that he was petrified, started to panic, and when Mr Lama turned away into the sitting room, he, Mr Warren, went to his bedroom, grabbed a loaded shotgun from under the mattress, came out into the hall way and confronted him, and:
He started to come forward, I lifted the gun up as it was pointed towards his guts, aimed it for the top of his shoulder to wing him.
So you fired a first shot?   Yes.
Then what happened?   He went backwards a little bit then yelled I'm going to fucking waste you.
What did you do?   Could see he started to move a fraction again, I thought I would put warning short, lifted the gun up to put a warning shot in front of him.
How did you lift the gun up?   As in (demonstrates left arm full length in upward movement and suggested the butt was on his shoulder).   When I fired that shot, it was the shot that accidentally hit in the side of his head blew half the doorframe off.
What happened to Mr Lama?   He fell back in towards the door pillar and on to the ground.
Whereabouts on the ground?   In the kitchen area.
When you saw that happen what did you do?   My heart was pounding, I walked to the doorway and could see his feet sticking out into the passageway, I walked up to the kitchen door where…

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.

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Details

Case: [2000] NZCA 336
Decision Date: 20 November 2000

CaseChat Overview and Summary

The Queen appealed against the conviction of Colin Richard Warren, who was charged with murdering Norman Lama. The case was heard in the Court of Appeal of New Zealand and the hearing was on 8 November 2000. The appeal was dismissed on 20 November 2000. The grounds of appeal were largely directed to the summing up by the trial Judge. The main issue was whether Warren had murderous intent at the relevant time and was not acting in self-defence or under provocation. The court found that the trial Judge's directions to the jury were adequate and that the appeal against conviction must fail.

The court found that the trial Judge's directions to the jury were adequate and that there was no miscarriage of justice. The court found that the Judge had directed the jury to consider the two-phase argument advanced by the defence and to decide whether the Crown had excluded the possibility that the first two shots were fired in self-defence and the last two shots, and possibly the second shot, as a result of provocation. The court found that the Judge had provided the jury with two schedules, the first referring to relevant legal principles and the second which was headed "Application of Law to the Present Case". The court found that the Judge had directed the jury as to the meaning of murderous intent and had provided the jury with a schedule that dealt in turn with self defence and provocation. The court found that the Judge had directed the jury that if they concluded that the Crown had not satisfied them that Lama was not killed by the second shot they would have to consider whether the Crown had satisfied them that neither self defence nor provocation were factors in firing the second shot. The court found that the Judge's directions were adequate and that there was no miscarriage of justice.

Orders