The Queen v Colin Richard Warren
[2000] NZCA 336
•20 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 315/00 |
THE QUEEN
V
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 he was lying on the floor.
How were you when you walked to the door? Fucking angry, my heart was pounding, I was blurry visioned, I was fucked off that he had fucking put a knife by my throat, punched me in the head and called me all these names, I was sweating.
What did you do? I remember I leant down and shot him with the gun.
These shots you have described - how long did they take? Within seconds. The last two happened within seconds.
And:
You told us you went to get your shotgun from under the mattress in your bedroom - why was your shotgun in that position? I'd been using it earlier on that day, I tried to shoot a possum I'd found.
After the second shot how did you feel? The same as the first shot, wasn't until I went up the hallway and seen the man lying on the ground and kept having flashbacks of what he had done to me in the kitchen with the knife, hitting me in the head, fuck, I felt angry.
With the last two shots, when was it realised you'd shot him again? When I got up off the couch after I sat there, I don't know for how long, after I got myself together I walked to the kitchen and saw him lying on the ground and realised I'd shot him in the cheek and in the forehead.
In cross‑examination he said in answer to the question "Is it just a coincidence that all four shots happened to have shot the body of Mr Lama?":
The first one was meant to wing him, the second wasn't even meant to hit him.
The final two were meant to kill him? I don't know about the final two, like I say, I don't recall putting the final two into him until after I snapped out of everything and realised I shot him two more times.
And:
Can I take it you're not so scared that you think you've got to kill this man to prevent him killing me? It never crossed my mind to kill him, all I was trying to do was save my life and wing him, he had a knife and was verbally abusing me and had just finished punching me in the head so why wasn't I to assume he was going to stab me if he was desperate enough to punch me in the head.
After some time, Mr Warren said, he rolled Mr Lama's body into the boot of the car, drove some miles, and tipped it off a bridge into a river. Some days later he went to the Police, made an exculpatory statement, and was subsequently charged.
Dr T B Koelmeyer, a forensic pathologist, and Mr K A J Walsh, a forensic scientist with specialist training in firearms examination, gave evidence. Dr Koelmeyer's evidence was that Mr Lama had suffered four gunshot wounds. The first was a non‑fatal angled wound to the left side of the front of the chest, which did not penetrate the breastbone and chest cavity. The second in time was to the left side of the scalp and skull, fracturing the skullbone. Dr Koelmeyer's evidence‑in‑chief was that because of the extent of the shotgun blast the injury would have "caused unconsciousness at least" with a probability of death, and that Mr Lama would have dropped unconscious from the blast. In cross‑examination he said that because of the degree of decomposition before the post-mortem eight days later:
I didn't have a brain to examine so I didn't know the amount of damage done by that shot to the brain but in terms of the presence of skull fractures, there would have been sufficient damage to the brain at least to cause him to drop unconscious. As to whether there was sufficient damage to the brain to cause death I don't really know. The difficulty is the decomposition.
Is it the case that you can't rule out that that shot two would have killed him? I think that's fair comment.
Because as you say you didn't have the brain material to help you form a conclusive opinion, you can't say how long after he received shot 2 it could have killed him? That's fair.
The further two shots, he said, occurred after Mr Lama had fallen and, as the result of the discharge from the gun, was unconscious from the second shot. One was to the right side of the face, in the region of the cheek and with the discharge from the gun being at contact or close contact with the face, but not a necessarily fatal injury. The other was a shotgun discharge in the forehead between the eyes and would have caused death if Mr Lama had still been living.
Mr Walsh's reconstruction from his examination of the scene and from attending the post-mortem was that Mr Lama was standing in the door way to the hall when the first two shots were fired and that the second shot struck the doorframe first and ricocheted, hitting Mr Lama's head. He estimated that the muzzle of the gun was no closer than 1.5 metres away, and not more than 3.5 metres away. He concluded that the two further shots were fired while Mr Lama was lying on the ground, with the muzzle at no more than 1 metre away from the head, possibly an inch or two away.
The respective cases at trial
As to intent, the Crown opened on the basis of s167(a), intent to cause the death of Mr Lama, and, alternatively, s167(b), recklessness, but in closing claimed one intent threatened, a deliberate killing, which counsel described as hunt and kill. As summarised by the Judge in the summing up, it was after Mr Lama turned away from him Mr Warren went to get the gun and, from Mr Walsh's unchallenged evidence as to the distance, must have advanced down the hall towards Mr Lama and shot him; that the last two shots could not have been fired into the unconscious victim in self‑defence; that there was no change in circumstances after the second shot to have altered Mr Warren's intent; that he was not out of control, and that nothing was said or done from the time of the second shot which could have provoked Mr Warren.
The defence case advanced in closing was that the Crown had not established that Mr Lama did not die from the second shot; that the first two shots were fired to wing and warn Mr Lama, so in self‑defence and not with murderous intent, and, as the Judge put it, in fairness also possibly as a result of provocation; and if Mr Lama was still alive after the second shot, then Mr Warren fired the last two shots acting under provocation.
Grounds of appeal
Ms Postlewaight advanced five stand alone grounds in support of the appeal:
1.that the Judge omitted to direct the jury they were required to identify the act which caused the death of the deceased and whether at that time of that act the appellant acted with one of the states of mind required by ss167(a) and 167(b);
2.that the Judge omitted to direct the jury as to the meaning of recklessness within the meaning of s167(b);
3.that the Judge failed to direct the jury as to the need for unanimity as to the cause of death;
4.that the relevant legal principles applicable to provocation should be reconsidered in the light of the recent decision of the House of Lords in R v Smith (Morgan) [2000] 3 WLR 654; and
5.that the Judge omitted to direct the jury that the defence of provocation is not restricted to loss of self control arising from anger but may extend to loss of self control due to emotions such as fear or panic caused by an act of provocation.
In regard to the last two grounds, she noted that provocation was clearly of concern to the jury in the course of their deliberations, as reflected in their request for clarification as to "the change between being angry and incensed and hot‑blooded ‑ so subject to passion".
Discussion
The trial Judge referred to the defence submissions including the argument that Mr Warren's evidence in relation to the first two shots negatived the murderous intent required under the murder charge and directed the jury in relation to the two‑phase argument advanced by the defence to explain the course of events in this way:
While the matter is one for you, you may well find that the crucial factual findings for you to make in this case relate to self defence and provocation, although you also of course have to consider murderous intent. You will need to decide whether the Crown has excluded the possibility that shots one and two were fired in self defence and shots three, four, and possibly shot two, as a result of provocation.
If you come to the conclusion that the Crown has not satisfied you that Mr Lama was not killed by the second shot, then you will be required to consider whether the Crown has satisfied you that neither self defence nor provocation were factors in firing that second shot. If you come to the conclusion that the Crown has satisfied you that Mr Lama was killed by the third or fourth shots, then self defence is not an issue but you need to be satisfied that the defence of provocation has not been excluded before you can bring in a verdict of guilty.
The Judge 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". It stated:
Q.3(Murderous Intent) Did Mr Warren have murderous intent?
For present purposes there was murderous intent if at the moment of shooting Mr Lama:
(a) he meant to cause Mr Lama's death; or
(b) meant to cause Mr Lama bodily injury which he knew was likely to cause death, being reckless whether death ensued or not
If Mr Warren had murderous intent you have found that he murdered Mr Lama. Move to Step 2 [self defence]. If you have found that he did not have murderous intent, then you find him guilty of manslaughter. You then go to Step 2.
The schedule dealt in turn with self defence and provocation.
The Judge referred to and went through that second schedule immediately after directing the jury as to the two‑phase approach (para [12]) and without specifically directing the jury to apply question 3 to "the moment of shooting Mr Lama" in terms of that two‑step approach. And in going through the schedule, the Judge also said:
The third element in a charge of murder is that the accused had what is called murderous intent. He must have intended to kill. Now in this case the Crown relies on two alternatives in our Crimes Act, the first says that the offender meant to cause the death of the person killed; or there is a second alternative it also relies upon - If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death and is reckless whether death ensues or not.
Ms Postlewaight's submission is where, as here, the Judge had left it open to the jury to find murderous intent on the basis of s167(b), he was obliged to go further than simply state the legal definition and to provide assistance to the jury as to how the jury might apply the concept of recklessness to the facts of the case. As well, it was submitted that the schedule and the discussion of the schedule may have caused some confusion because it was not framed specifically in relation to the two‑step approach he had been speaking of earlier.
Section 167(b) is not an easy provision to comprehend and apply, as is evident from the considerable number of reported decisions of this court under the paragraph in the last 20 years. As is well settled, recklessness in para (b) means a conscious taking of the risk of causing death; an actual conscious appreciation that death was the likely consequence of the act, a state of mind that must exist at the time of an act that either caused death, or was an operating and substantial cause of death (R v Harney [1987] 2 NZLR 576). Ms Postlewaight's primary submission is that, in circumstances where the evidence was that the first shot was aimed to wing Mr Lama, the second had been fired at the doorframe and ricocheted to hit him and the pathologist's evidence was that Mr Lama could or would have died from that shot, the Judge should have explained the meaning of recklessness and how the jury might apply it to the facts of the case. The associated submissions (in ground (1)) were that the Judge should have directed the jury that they were required to identify the act which caused death and whether Mr Warren was acting at the time with one of the states of mind required by s167(a) or (b).
It was impossible from the pathologist's evidence to say whether Mr Lama was still alive or was already dead when shot again through the forehead at point blank range. Given the quick succession of shots and the pathologist's evidence, it was not possible for the jury on the whole of the evidence to conclude that death actually resulted from shot 2 or that it actually resulted from shot 4. What was important was for the jury to consider whether on the two possibilities the Crown had established murderous intent and had negated self defence and provocation at those two times. In that regard the Judge's direction, that if the jury concluded that the Crown had not satisfied them that Mr 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 (and implicitly from the immediately preceding reference to murderous intent that the Crown had satisfied them as to that element), was if anything perhaps over favourable to the defence. And in relation to the subsequent shots, self defence was not an issue and we are satisfied there could be no answer with any sense of realism to the argument of the Crown that the same deliberation that went into the earlier shots followed very soon afterwards in the execution style point blank shots into the unconscious Mr Lama, who had collapsed to the floor, both demonstrated the presence of intent to cause death and negated any possibility that Mr Warren was acting under provocation. In that assessment a jury faced with Mr Warren's oral evidence, first he remembered he leant down and shot the victim with the gun and then that he did not recall putting the final two shots into Mr Lama until he snapped out and realised he had done so, could only have concluded that the action of pulling the trigger twice again, and from point blank range, was done with intent to kill. We should add that the generally worded jury question on provocation provides no basis for inferring any particular guidance or concern as to the jury's thinking on that topic.
Turning then to the Judge's directions as to murderous intent in relation to the second shot, no complaint has been made as to his directions in relation to s167(a) and, while we consider that an explanation of the concept of recklessness under s167(b) and how the jury might apply it to the facts of a case is ordinarily called for, we cannot possibly say that its absence in this case has given rise to the risk of a miscarriage of justice. It is clear from the language of s167(b), and recognised by the authorities, that the paragraph requires proof of an intent to cause bodily injury and also that at that time (i) the injury was known to the accused to be likely to cause death and (ii) the accused was reckless whether death ensued or not (e.g. R v Ramsay [1967] NZLR 1005, 1015; R v Dixon [1979] 1 NZLR 641, 647). In Ramsay the court emphasised that whether there is a series of interconnected acts or not, the knowledge to be ascertained is always the knowledge at the time the particular act was committed. But the court also emphasised two further points: one, that to ascertain that knowledge one should look at the act as an individual act, though not in isolation from the surrounding facts, including, naturally, prior conduct of the accused; and the other that the course of conduct sometimes reveals a persistent intention sufficiently plainly to enable one to say without doubt that every part of that conduct was directed by that intention.
On the evidence here, the second shot necessarily takes flavour both from the first shot which was, Mr Warren stated, intended to wing Mr Lama, and struck him at the side of the chest and from his evidence that the second shot, fired from a shotgun with the large Mr Lama in the doorway "to put a warning shot in front of him" but which actually hit the doorframe and not surprisingly ricocheted to hit him in the head. It is unreal to regard them as separate incidents. As well, on Mr Warren's evidence all the shots, and thus the third and fourth shots, happened within seconds and it would be wholly artificial also to ignore those subsequent shots fired from a closer range when considering Mr Warren's knowledge and state of mind in firing the second shot. In short, the jury must have concluded, if they moved on to consider para (b), that putting it at its lowest Mr Warren must have appreciated the risk, intended to cause him bodily injury and was reckless in the extreme in firing the second shot.
There were two further points discussed in argument that we can deal with very shortly. The first is that when discussing the second schedule in the summing up the Judge did not repeat that the shooting should be looked at in two stages. However, given the clear direction to do so, which he had just given, the jury must have understood the direction to consider murderous intent "at the moment of shooting" to require the jury to be satisfied that the Crown had established that intent as at the time of the fatal shot - or, as submitted by the Crown as more appropriate in the circumstances of this case, that the intent existed throughout the whole of the incident. See R v McKeown (1984) 1 CRNZ 156, 159. The second is that the Judge's specific direction as to unanimity was expressed in terms of unanimous agreement upon a verdict and did not specifically direct the jury that they had to be unanimous as to the time or cause of death. Again, given the specific directions in relation to the two‑stage approach, we are satisfied that the jury must have appreciated that unanimity was required as to the presence of murderous intent and negating of relevant defences.
We turn finally to the provocation grounds. The Judge directed the jury in terms of our decision in R v Rongonui [2000] 2 NZLR 385. For reasons given in R v Maokare (CA 324/00, judgment delivered today) which was heard on the same day as this appeal we are not persuaded that we should revisit Rongonui following the recent House of Lords' decision in R v Smith (para [10]).
The remaining argument under ground 5 was in essence that, had they been directed that loss of control may arise from emotions such as fear or panic caused by an act of provocation, the jury might have been able to conclude that Mr Warren was in such fear that he panicked and lost control. Again, on the evidence we are not persuaded that this point is arguable. Where there is a proper evidential foundation, a jury may need to consider whether loss of self‑control arose from fear or panic caused by an act of provocation. Here, there is nothing in Mr Warren's evidence leading up to the first two shots, and having regard to the deliberation necessarily involved in getting the shotgun, advancing down the hall and firing shots as he did, that he did so while self‑control was lost and from fear. And in describing his emotions when discharging shots 3 and 4 into the recumbent victim, there is nothing from Mr Warren to suggest that provocation was given and operating and that he was in any other state than mere anger.
Conclusion
For the reasons given we are satisfied that the appeal against conviction must fail and it is accordingly dismissed.
Solicitors
L J Postlewaight, Whangarei, for appellant
Crown Law Office, Wellington.
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