The Queen v Fraser

[2008] NZCA 68

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2007
[2008] NZCA 68

THE QUEEN

v

DANIEL JOHN FRASER

Hearing:13 March 2008

Court:Glazebrook, Hammond and Robertson JJ

Counsel:C P Comeskey for Appellant

A Markham for Crown

Judgment:18 March 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Daniel John Fraser was convicted following trial in the Whangarei High Court before Wilson J on one count of murder and one of assault with a weapon.  On the former, he was sentenced to life imprisonment with a minimum non-parole period of 14 years, and on the latter convicted and discharged.

[2]       He appealed against his conviction for murder on the sole ground that the partial defence of provocation was not left to the jury despite, he says, an evidential foundation having being laid for it.

[3]       Mr Fraser also appealed against the sentence imposed on the basis that the length of the minimum non-parole period was manifestly excessive.

[4]       The Crown, in its written submissions, argued that s 104(c) of the Sentencing Act 2002 applied as the killing occurred after “unlawful entry into, or unlawful presence in a dwelling place” and there was no basis for the trial Judge’s conclusion that it would be manifestly unjust to impose a minimum period of imprisonment of at least 17 years.

[5]       Prior to the hearing, the appeal against sentence was abandoned.  This course of action was clearly in the interests of the appellant as, on the basis of the test enunciated in this Court in R v Williams and Olsen [2005] 2 NZLR 506, it could not be concluded that any of the circumstances identified by the sentencing Judge could have been sufficient to justify a deviation from the Parliamentary mandate.

[6]       However, the appeal having been abandoned without opposition by the Crown, the issue was not before this Court.

Factual background

[7]       The appellant and Charmaine Cameron were, for a number of years, in a relationship from which there were two children.  They separated in April 2005.  Ms Cameron and the children remained in what had been the family home.  She and the appellant maintained an intermittent relationship.  On 6 October 2005 Ms Cameron obtained a protection order against Mr Fraser.

[8]       Notwithstanding this order, Mr Fraser still on occasion stayed at the address.  On 12 December 2005 he was arrested for breaching the protection order and released on bail with conditions which prevented him from contacting Ms Cameron or their children.

[9]       The victim of the admitted homicide, Lance Hughes, was the new boyfriend of Ms Cameron.

[10]     About 8am on Christmas Day, Mr Fraser was at an adjoining property occupied by his mother when he noticed a car belonging to Mr Hughes parked on the lawn of Ms Cameron’s home.  He went to the house, entered via an unlocked ranchslider door and proceeded upstairs to the bedroom.  He pushed past Ms Cameron and confronted Mr Hughes, accusing him of “fucking my missus in my house”.  He left the bedroom but returned almost immediately, seized a baseball bat and attacked Mr Hughes with it.  The police were advised as to what had occurred.  The assault charge arose out of that incident.

[11]     At about 5.30pm that day, Mr Fraser returned to the property carrying a shotgun loaded with six rounds of OO buckshot concealed in a towel.  He smashed the ranchslider glass and entered the lounge.  Mr Hughes grabbed a baseball bat, but was immediately shot.  The first shot went through his abdomen, the second shot went into his diaphragm and, as he lay face down on the floor, the appellant discharged a third shot into his right buttock.

[12]     In the course of the trial, possibilities of both self-defence and/or provocation were considered.  In a ruling delivered prior to the addresses by counsel and his summing up, Wilson J held that the defence of self-defence could be left to the jury, but not the partial defence of provocation.

The Judge’s approach

[13]     In his ruling withdrawing provocation from the jury, Wilson J said:

[23]     What then is the test which should be applied in determining whether the issue of the partial defence of provocation should be left to the jury?  The phrase which seems now to be established in the authorities is whether there is “a credible narrative of causative provocation”.

[24]     That test was applied by the Court of Appeal in R v Matoka [1987] 1 NZLR 340 at page 344, referring back to R v Anderson.

[25]     More recently in R v Timoti [2005] NZSC 37, Tipping J in his judgment helpfully set out the approach which should be followed in the following terms at page 328:

Much of the above abbreviated account is disputed, but there can be no doubt that the above account is a version open to the jury.  In my view it does amount to a ‘credible narrative of causative provocation’ (see R v Matoka [1987] 1 NZLR 340 (CA) at p 344).

[26]     His Honour then went on to say a little about the application of that test to the facts and had this to say at [15]:

There is evidence that he [the accused] was extremely angry at what had occurred.  The act of lighting the fire occurs within about three hours of the last of the taunts.  I am of the view that it would be open to a jury to find that the lighting of the fire was done while the accused was still in the ‘heat of passion’ or was done ‘before there [had] been time for his passion to cool’ (see R v McGregor [1962] NZLR 1069 (CA) at p 1078). It is possible, I think, that a jury could find that in those early hours of 24 January, the accused was not ‘master of his mind’.

[14]     There is no dispute that this is the appropriate legal test.  The issue is whether, in this case, a credible narrative of causative provocation existed in the evidence.

The appellant’s position

[15]     The heart of the appellant’s case is that the Judge went beyond his duty under s 169(3) of the Crimes Act 1961 (which is only to determine if there was any evidence of provocation) and made an assessment of the evidence which was not his function but the preserve of the jury, being a matter of fact.

[16]     Mr Comeskey submitted that Wilson J had been in error when he said at [44]:

… it cannot possibly be said, in my view, that the earlier provocation was on the evidence causative of a loss of self-control by the accused even if the jury were satisfied – and I have not seen any evidence of this – that the accused did in fact lose self control. …

And at [45]:

… there was no direct evidence that, at the time of the shooting, the accused was, or even may have been provoked into the loss of his self-control. …

[17]     It was the appellant’s case that the test applied was wrong as the Judge was considering whether the provocation was sufficient for the appellant to lose his power of self-control.  He argued that the trial Judge’s inquiry had to be restricted to whether there was any evidence of provocation.  He relied particularly on the distinction drawn by this Court in R v Rongonui [2000] 2 NZLR 385 at 232 and 233:

It is useful now to examine the roles of Judge and jury in a case where provocation is in issue.  The Judge must decide whether there is sufficient evidence to leave provocation to the jury.  In a case not involving an asserted characteristic this task requires the Judge to decide first, whether there is evidence of conduct capable of amounting to provocation causing loss of self-control; and second, whether the provocative conduct is such that it might as a reasonable possibility have deprived an ordinary person of self-control.  If there is evidence upon which the jury could answer both of these questions favourably to the accused, the defence should be left to the jury.  They must then consider whether there was provocation causing loss of self-control and whether the provocation was sufficient to deprive an ordinary person of self-control.  That decision must of course be made on the basis that the Crown has the onus of negating the relevant factors.

…

Essentially at all stages the Judge has to decide whether as a matter of evidence and law the jury could find for the accused; the jury decides whether they should find for the accused.

A credible narrative

[18]     Was there, in the evidence, a credible narrative of conduct amounting to provocation causing loss of self-control which might, as a reasonable possibility, have deprived an ordinary person of self-control?  To answer that, it is necessary to provide more detail as to the factual position.

[19]     Mr Fraser, who surrendered himself to the police at about 11pm on the night of the shooting, declined to make a statement to the police but testified at trial.  Of material significance, the following can be stated:

(a)When on Christmas morning he accused Mr Hughes of “fuckin my missus in my house”, the latter replied “yes” and smiled.  At that the appellant “just felt wild. Upset. Provoked.” Despite this, he said it was “alright” and turned and left the room.  As he did so, he heard Mr Hughes laughing.  The appellant then “lost it”, walked back, located the baseball bat and advanced on the deceased.  There was a fight and the appellant was punched and told many times to “fuck off”.  Mr Hughes also threatened to kill the appellant.

(b)He left and returned to his mother’s house, feeling “I had been beaten.  I was feeling angry.”  However, he specifically denied being out of control.  He made a pre-arranged trip with his mother to visit his father’s grave.

(c)Afterwards, he dropped his mother off at her house and looked across to Ms Cameron’s house.  He saw Mr Hughes standing in the doorway “laughing” at him.  He asked his mother to go next door and retrieve his cigarettes and lighter, which he had realised had been dropped earlier.  Mr Hughes handed these to the appellant’s mother.

(d)He acknowledged the outwardly unremarkable trips and visits outlined below.  He said at that time “I was still angry”, but that “I just hid my feelings”.  He claims to have brooded on his belief that Mr Hughes was a drug taker and an “IHC rapist” and that his children were not safe, although he acknowledged that he and Ms Cameron also took drugs.

(e)He also acknowledged three or four “drive bys” of Ms Cameron’s house.  When asked why he drove off again each time, he replied: “I didn’t want to confront Lance again.  I had already lost one fight”.

(f)Returning to the house, he broke in and saw Mr Hughes advancing on him with something held over his shoulder.  The appellant lifted the gun and “it discharged”.  As it did not appear that the victim had been hit, the appellant reloaded and fired again.  The deceased fell, face down, and the appellant shot him a third time in the buttocks.  The reason given for this was the “flooding back” of sexual abuse memories from 30 years earlier when the appellant’s buttocks had been touched.

(g)Of his state of mind when he shot Mr Hughes the third time, the appellant said: “I just lost it”.  He then said that he had “lost it” before he got there.

[20]     It is instructive, also, to consider what the evidence established as to the activities of Mr Fraser between his visit to the house in the morning and his return at the time of the killing.  There is no controversy about this and in addition to matters covered in [19] and it can be summarised as follows.  He:

(a)Visited a service station and bought a top up card for his mobile phone at about 9.30am;

(b)Conducted several “drive bys” of Ms Cameron’s house (behaviour he admitted he would “sometimes” engage in on other occasions).  At around 10am he was seen parked at a distance from the house, watching it for about ten minutes and trying to open the garage door with a remote control;

(c)Drove to Ahipara to visit two female associates.  He showed them a new tattoo.  He told one of them he was going to book a motel room, and invited her to stay with him.  He later tried to ring her several times, but she did not answer her phone;

(d)Booked a motel room at around 12.30pm, and showed the proprietor his new tattoo;

(e)Drove to the East Coast for Christmas lunch with friends.

(f)Drove back to Kaitaia after lunch, encountering some friends on the way.  He stopped them and they had a brief conversation during which he admitted he told them that he was going to shoot and kill Mr Hughes;

(g)Returned to the motel in the late afternoon at about 4.30-5.30pm and told the motelier he might not need the room for the night after all; and

(h)Conducted a further “drive by” of Ms Cameron’s house at about 5pm.

[21]     There was no suggestion in either the High Court or before us that any special characteristic applied which could affect the issue of provocation.

The Judge’s assessment

[22]     The Judge’s conclusion about all of this was:

[43]     If upon leaving the property at about 8.30am in the morning the accused had immediately obtained a firearm and then returned and shot the deceased, and if loss of self-control were established by the evidence or, to be more accurate, the evidence was such that the Crown could not exclude that beyond reasonable doubt, it would in my view be appropriate for the partial defence of provocation to go to the jury.  Similarly, if after Mr Hughes had allegedly laughed at the accused at approximately 10.00am and events had proceeded in a similar way with evidence of loss of self-control, the issue of provocation would appropriately go to the jury.

[44]     By the time of the shooting at about 5.30pm that day, it cannot possibly be said, in my view, that the earlier provocation was on the evidence causative of a loss of self-control by the accused even if the jury were satisfied – and I have not seen any evidence as to this – that the accused did in fact lose his self-control.  And that is quite apart from the further requirement that the jury could properly have found that a person with the power of self-control of an ordinary person would have been affected in that way.

[45]     In my judgment, there is no direct evidence that, at the time of the shooting, the accused was or even may have been provoked into the loss of his self-control.  Indeed his own evidence as to what occurred, which I read out earlier, is inconsistent with such a conclusion.

[46]     I accept in particular the submission of Mr Smith (Crown counsel) that the actions of obtaining a firearm before returning to the property, loading it and attempting to conceal it are inconsistent with any suggestion of loss of self-control.

[47]     There is also no evidence, as I see it, of any event which triggered a loss of self-control immediately prior to the shooting occurring.  Any suggestion that the accused lost his self-control on seeing the vehicle of Mr Hughes still at the property when he returned to it at about 5.30pm must, in my view, be a matter of speculation rather than inference.

[48]     To paraphrase what Fisher J said in Mita in the passages to which I referred previously, it could not possibly be suggested on the evidence in this case [is] that the alleged acts of provocation produced in this accused a state of uncontrolled hot blood which lasted until the homicide.  Likewise, it could not be suggested that at the time of the homicide the accused was in a state of “hot blood”, a “transport of fury”, “sudden and temporary loss of self-control”, “in the heat of passion,” or any of the other phrases used.

[23]     Mr Comeskey argued that, in this exercise, the Judge had taken over a factual assessment rather than a determination of whether, as a matter of law, provocation could be considered.

[24]     We do not agree.  The legal assessment as to whether there was a credible narrative necessarily involves an assessment of the factual material which is available.  The Judge was entitled to conclude that, taking the evidence of that day and placing it within the factual context of the past relationship, there was no basis upon which there could be the conclusion that there was any loss of self-control.  A jury has to have material upon which it can make an assessment.

[25]     Mr Comeskey submitted that a person who has formed an intention to kill may be able to rely on provocation: R v Barton [1977] 1 NZLR 295 (CA), and that overall the questions simply is whether the appellant did in fact lose the power of self-control: R v Rajamani CA437/06 11 June 2007.  We do not disagree.

[26]     Although there has been a reluctance by many Judges to withdraw provocation from a jury, the legal position is clear.  It should, and has, occurred in the absence of a proper evidential foundation.

[27]     The proper approach is encapsulated in R v Erutoe [1990] 2 NZLR 28 (CA), where the appellant had been convicted of murdering his wife in circumstances that he contended amounted to provocation. The victim had, prior to the fatal assault, insisted that the appellant transport her to another man, with whom she was planning to have an affair. The accused drove the woman in his car, but on the journey attacked the victim several times. The accused contended, on appeal, that the final, fatal attack occurred while he lacked self control after being provoked by his wife telling him about the planned affair. The trial judge had not put provocation to the jury, because he found that the “vital chain” of continuous lack of self-control was broken: the alleged provocation and the fatal assault were separated by a “vacuum”.

[28]     On appeal, this Court upheld the trial Judge’s decision not to put provocation to the jury.  Although the Judge could have done so, there was robust evidence that negated the plausibility of a credible narrative of events amounting to provocation.  There were multiple intervening events between the last “provocation” alleged by the appellant and the fatal assault, and there was no evidence that the appellant possessed any “relevant special characteristics”.

[29]     This Court acknowledged at [35] that, “[w]hile provocation is not lightly to be taken away from the jury … there are occasional cases when the accused’s conduct is so extreme in its brutality that a trial judge will be warranted in this course.  They do not arise often, but we are satisfied that this is one of them”.

Result

[30]     There was no credible narrative supportive of the essential pre-conditions for provocation this case.  The best that could be mounted out of all the circumstances was that, as a result of the incident and altercation in the morning, this man had seethed and brooded until, as Mr Fraser asserted in answer to a question in cross-examination, later in the day he “just lost it”.  Even without facing the problems associated with self-inducement which might have arisen under s 169(5), the acts and omissions of Mr Fraser throughout the intervening period rob that possibility of validity in this particular case.  There was nothing said or done by the appellant consistent with such a thesis, and no supportive evidence that it was occurring.

[31]     Accordingly, the Judge was required to withdraw the partial defence and the appeal must accordingly be dismissed.

Solicitors:
Crown Law Office, Wellington