The Queen v John Federici

[2000] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND CA349/99

THE QUEEN

V

JOHN FEDERICI

Coram:	Thomas J Blanchard J Tipping J
Decision (ex parte):	3 February 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The appellant was convicted in the High Court at Auckland of the murder of his wife and was sentenced to life imprisonment.  He now appeals against that conviction.

2. The appellant and his wife married in 1991.  In 1996, they moved to New Zealand from Australia with their two young sons and initially lived with the victim's mother in Auckland.  As a result of marital difficulties, the couple separated in July 1998.  It would appear that they reconciled to some extent and the appellant began staying overnight with the victim at her rented unit, although there was some evidence that there were other periods of separation before and after July 1998.  A family member, who had been assisting the victim to look at motor vehicles, last saw her at approximately 10pm on Wednesday 16 September 1998.  The following morning, Mrs Federici's mother arrived at the victim's unit at around 7am to take the eldest of the two children to school as arranged.  Mr Federici was at the house with the two children.  He told the victim's mother that he and the victim had argued the night before, that the victim had left and that she had failed to return.  The victim's mother took the child to school.  She tried to contact her daughter at work but found that she was not there.  Her daughter was also not responding to answer-phone messages.  Her mother and another relative went to the victim's unit that evening and found the place on fire.  The Crown accepted that the cause of the fire was not intentional.  The victim's mother reported her daughter, the appellant and the youngest child missing and an examination of the unit revealed evidence of blood, human hair and other forensic evidence.

3. Inquiries revealed that Mr Federici had rented a van for three hours on the morning of 17 September, but had failed to return it.  The appellant then used Mrs Federici's cellular phone to book a return flight to Brisbane on Saturday 19 September.  The following day, he called a taxi and sent his youngest son to his sister-in-law's address and later abandoned the rental van in a car park.  Customs officials stopped the appellant at the airport later that day as he tried to leave the country.  He attempted to flee but was caught by a customs officer.  He was in possession of the victim's diary, cellular phone, some jewellery and other personal effects.

4. Police interviewed the appellant, and while he admitted placing his son in the taxi, he denied any knowledge of his wife's whereabouts.  He repeated the story that they had argued and that she had left.  Later in the interview, however, he acknowledged that he knew where the victim was and that he wished to consult with a Catholic priest.  Having done so, he admitted to strangling and killing Mrs Federici and, after a failed attempt to dismember her body, he had placed her in a wheelie bin covered with soil and household rubbish.  Over the following days, he drove around a number of locations, accompanied by the youngest child, disposing of clothing and other items.  He then left the body, in the wheelie bin, in a lay-by on the State Highway between Taumarunui and Turangi.  The body and the other items were located, with the assistance of the appellant.  The pathologist who examined the victim's body concluded that she had died from manual strangulation.

5. Mr Federici applied for legal aid to conduct his appeal.  After consultation in accordance with s15 of the Legal Services Act 1991, the Registrar declined to grant legal aid.  The appeal has therefore been determined on the basis of written submissions received from the appellant.

6. Mr Federici's main ground of appeal is that the defence of provocation should have been put to the jury.  The appellant acknowledges that the defence of provocation was contrary to the main defence raised at trial, namely that he did not have the requisite murderous intent.  He submits, however, that there was sufficient evidence to constitute a credible narrative, such that the Judge should have put the defence of provocation to the jury.

7. As a second ground of appeal, the appellant contends that the Judge did not properly direct the jury about how they should approach exculpatory and inculpatory portions of Mr Federici's video interview with police.  Mr Federici contends that the video was easy to misconstrue, as he did not understand the full implications of it at the time.  He believed then that the interview was conducted purely to locate his wife and for no other purpose.  Further he states that his recollection of events was distorted at that time, and that while the Judge directed the jury on issues of accuracy.  She made no direction about what weight should have been applied to different portions of the video evidence.

8. We have considered the evidence presented at trial and Mr Federici's submissions in detail and we do not consider that there was sufficient material before the Court to require the Judge to put the defence of provocation to the jury.  In his submissions, Mr Federici refers to a number of factors in support of a defence of provocation.  They are not however relevant to this appeal.  Most of the factors raised in his submissions were either not raised at trial or were characterised in a very different way.  It is only the evidence that was before the Court during the trial that can be relevant to whether the defence of provocation should have been put to the jury.  As Mr Federici admitted killing his wife, the central issue at trial was whether he possessed the requisite murderous intent at the time.  There was no evidence directly supporting a provocation defence but it is necessary to consider the evidence in its entirety to determine whether a credible narrative was established.

9. The picture formed by the evidence was of a deteriorating marital relationship, which, albeit sad, was not exceptional in any particular way.  These factors most certainly did not form any credible narrative on which the Judge could have based a provocation direction.  Mr Federici noted in his submissions that, on the night of his wife's death, she had "taunted" him to kill her.  This point was raised during cross-examination of Mr Federici.  Far from forming the basis of a provocation defence, it was noted by Crown counsel that, if Mr Federici had acted on such instruction as he suggested during his video interview with police, this would clearly constitute murder.  We are satisfied, therefore, that no credible narrative supporting a defence of provocation emerged at the trial.  There was no basis for that defence to be put to the jury in these circumstances.

10. With regards to the second ground of appeal, we do not consider the Judge to have erred in summing up as she did.  The jury was instructed that it was their role to assess the evidence before them and the credibility of the witnesses.  The Judge also emphasised that, unlikely Mr Federici's evidence in Court, the video taped interviews were not sworn testimony.  Contrary to the appellant's submissions, the Judge did direct the jury that the weight of those statements, as well as their accuracy, was a matter for the jury.  Further, she instructed them that they may attach different weight to different parts of the statements.  The Judge was not required to specify allegedly exculpatory and inculpatory aspects of the interview and it is not the Judge's role to instruct the jury what weight they should have placed on the various portions.  The assessment of credibility and weight is one for the jury.  The Judge's direction was, therefore, proper and this ground of appeal also fails.

11. The appeal is, therefore, dismissed and the conviction is upheld.