The Queen v Oakley

[2006] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

CA337/05

THE QUEEN

v

ROBERT GEORGE OAKLEY

Hearing:9 August 2006

Court:Ellen France, Gendall and Heath JJ

Counsel:P J Kaye for Appellant

P K Feltham for Crown

Judgment:22 September 2006  at 11.15 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT
(Given by Gendall J)

[1]       This is an appeal against conviction for murder entered in the High Court at Rotorua on 30 June 2005.  The grounds of appeal advanced were, first, that there was a miscarriage of justice because of errors of trial counsel.  Second, the appellant says that fresh evidence is now available which, had it been adduced at the trial, may have resulted in a verdict of manslaughter through murder being reduced by reason of provocation, or alternatively that such evidence would have strengthened the argument that the appellant did not have the required murderous intent.

Background facts

[2]       The victim and his brother, Beaudine Ngaheu, were drinking at their home in Kawerau throughout Saturday 28 August 2004.  The appellant lived next door.  Late in the afternoon he invited them both to join him at his home.  They continued to drink the appellant’s homebrew spirits in the kitchen/dining room.  The mood was happy but turned ugly later in the evening.  The victim, after thanking the appellant for his hospitality, hugged him.  The evidence was that the appellant told him to not do that.  An argument followed where the appellant told the victim and his brother to leave.  The appellant then left the kitchen telling the others to go.  He was followed by the victim, who sought to placate him.  No threats, or other aggressive actions followed.  The victim told the appellant to “stop spacing out”.  Yet the appellant kept demanding that he leave the house.  The appellant then obtained a rifle from his bedroom, loaded it and fired a shot into the floor as a “warning” to the advancing brothers, Beaudine Ngaheu, and the victim.  The victim told the appellant to “calm down”, and asked what was his problem.  The appellant said that he would give him three seconds to get out and if he came any closer he would shoot him.  The evidence was the victim said “sweet as” and moved towards the appellant.  He was then shot in the chest by the appellant, fatal wounds being inflicted. 

[3]       Immediately after the incident, the appellant left the house and walked to the Kawerau Police Station.  Because it was closed he went to a service station where he advised an attendant that he had killed a person who was his neighbour.  The evidence was that the appellant said to the attendant:

I warned them, I told them to stay away, I fired a warning shot but then I killed him.…..

And further:

he said he had been hit, that they had been hitting him….he told them to leave his house and to get out and they wouldn’t leave him so he went down the hall and got the gun and shot him.

[4]       The evidence was that, later, at the Kawerau Police Station, the appellant said to a police constable:

He hit me, I told him not to hit me.  I wouldn’t even have the gun handy except for the incident last week….I had an incident last week with the Mob, they invaded my house at 6 o’clock in the morning.  You’ll have a record, you guys came….

He further said:

I put [the gun and magazine] there after the mongrel mob incident last week….I felt unsafe.  They tried to run the girlfriend down in the street.  They tried to bundle her into the boot of the car.  I felt really unsafe.

[5]       The background to the latter comment was an incident involving members of the Mongrel Mob coming to the appellant’s home in an attempt to find an unnamed third party.  After these incidents, the appellant made his .22 rifle more readily accessible in the event the Mongrel Mob came back.  He said he was not confident the police would arrive in time to intervene if something happened.

[6]       The appellant was represented in the High Court by Mr S J Clews.  On the following day after the shooting, 29 August 2004, in his lawyer’s presence, a written statement was given by the appellant to the police.  Essentially, the appellant said that he was not quite sure why he had shot the victim, because he had no significant memory, but there were no arguments and he had gone down to his bedroom from the kitchen because:

I got hit down in the lounge – no in the dining room kitchen.

He said that he was not sure who had hit him, but that after obtaining the gun and ammunition he pointed the weapon at the floor.  He explained to the police that he was concerned that if the man advancing on the bedroom had got any closer he would have been “belly up” because the gun would have been used on him.  This exchange in the conversation with the police, was adduced in evidence at the trial:

Q.What happened next?

A.I saw someone in the hallway.  I yelled out don’t come through the door.  Thats when I fired the shot into the floor.

Q.What made you fire a shot into the floor?

A.Just to give some omph to how serious I felt about don’t come through the door.

Q.Why did you say don’t come through the door?

A.Cause that was as far as I was prepared to let him come.

Q.Why?

A.Because if he got any closer he’d be onto me and I’d be belly up.

Q.Why would you have been belly up?

A.I felt if he had got the gun it would be used on me.

….

Q.Were you scared of this guy?

A.At the time yes.

Q.Why?

A.Because of what had gone down the previous week.  He’d been talking about how close his missus was to the mongrel mob.

[7]       Evidence at the trial included that from a detective of what the appellant said on the next day, 30 August 2004, after return from Court.  The appellant said there was something he had not told the detective on the previous day, namely, he had “shot the guy behind the one in front stepped….I shot the guy behind.  The one in front stepped aside to by the front door”.  The evidence was that the detective said to the appellant “I think you’re confused”.  Taken at its face value that contention, if correct, suggests that it was Beaudine Ngaheu who was in front of the victim, before the fatal shot was fired.

[8]       At trial, the defence advanced was one of absence of murderous intent, and self-defence.  The appellant gave evidence essentially repeating what he had told the police orally and in his statement.  He said that he had shot at the victim because he was frightened of both him and Mr Ngaheu, but he did not remember or know why he was frightened or what it was that he feared.  In his evidence he said that he had been drinking with the victim and Beaudine Ngaheu and something had happened that worried or concerned him.  He said:

I can’t remember anything, except I can remember pushing Dawson [the victim] away [and] the next I remember being in my bedroom….I wanted to shut them out….That is [the victim] and Beaudine. 

[9]       He said that he grabbed the gun and put the magazine in it and stood just back from the door of his bedroom.  His evidence was that he saw people or a person in the hallway.  He said he thought it was Beaudine and explained why he thought that, which was because of differences in the build and in the clothing of Beaudine and the victim.  He did not recall either saying anything.  After that he fired a warning shot yelling out at the top of his voice “Sgt Major style, don’t come through the door.”  He said he did that because he was frightened of them and wanted to give them an opportunity to know their boundaries.  He could not say what it was he feared.

[10]     The appellant then was asked what he thought would happen as a result of the warning shot.  He said he thought they would leave the house.  The following excerpt is his evidence of what happened next:

A.Just kept coming.

Q.       What did you do?

A.       I stepped back in the room a bit and I just stood there.

Q.       What did this other person, this shape do?

A.       He just walked straight through the door.

Q.       What did you do?

A.       I shot him.

Q.       Why did you shoot him?

A.He was pretty close to me.  I was frightened of him.  I felt if he didn’t have, if he did have good intentions, a shot in the floor would scare the hell out of him enough to leave anyway.  By then I could only assume his intentions were bad.

Q.       What did you think would happen?

A.       I wasn’t prepared to let him get hold of my gun.

Q.       Why did you not want to let him get hold of your gun?

A.       I assumed he would use it on me.

At the end of his evidence in chief he reiterated again his fear for his safety if the person had got hold of the gun, specifically he feared he might use the gun on the appellant:

“Shoot me, club me, whatever, not nice.”

[11]     The cross-examination of the appellant largely dealt with his concerns about gang actions the previous week.

[12]     There was also evidence at trial from Beaudine Ngaheu about the victim giving the appellant a hug.  Mr Ngaheu said that when the victim did that on a second occasion the appellant said to stop doing that because he did not like it.  An argument or shouting followed and the evidence was that the appellant said “Just stop hugging me, I don’t like it, my brothers a fag, I’m not a fag, yeah stuff like that”.

[13]     The appellant was asked about this in cross-examination.  He was asked:  “Did you push him away because he had hugged you?”  The appellant answered “I don’t know, I remember pushing him away”. 

[14]     In the course of cross-examination the appellant repeated his evidence that he considered two persons were approaching him whilst in the bedroom.  He also said the gun was there to defend himself.

[15]     When asked why he did not keep the bedroom door closed the appellant answered:

Because I didn’t think I could keep it closed if they wanted to come in….They were coming up the hall after I told them to leave, you know I don’t remember telling them to leave, it’s only from listening to the witnesses, but I don’t remember it now….

[16]     In another passage the appellant admitted what the detective had said in evidence, that is, what the appellant had told him the day after the formal statement.  In particular, he said that he:

expected Beaudine to walk through the door.  But he stepped aside….I think Beaudine was coming up the hall first, but in the, I was surprised when I saw Dawson’s [victim] jersey come through the door.

[17]     When he fired the warning shot, he said he thought it was Beaudine who was approaching although he could not see him.

[18]     A further question put in cross-examination was:

Q.After the shooting you’ve told us that you were ready to shoot the second man?

A.Only if he posed a threat to me.

There then followed evidence which was unexpected to defence counsel.  The appellant said that both men got their warnings at the same time.  He went on to explain that he had trained in the Navy for rioters and emergency situations.  He said they had been trained to kill if ordered.  He spoke of a video they were shown where a warning tape was placed on the ground and the rioters were told “Don’t cross the tape”.  The man inciting the riot crossed the tape and was shot although he was not armed.  The appellant continued that he had given a warning.  It had not been obeyed and took from that “They intended me harm”.  He explained that his hands were not good:

… not that I could fight off 2 people half my age, even if they were good, if you are going to use force, you have to use enough, it is a waste of time not using enough.

[19]     No issue was taken with the Judge’s summing-up.  It was conventional, the Judge emphasising that on the questions of self-defence the jury had to consider the belief as to what was happening at the time from the appellant’s subjective point of view and whether he believed he was in danger of bodily harm, as he said in evidence.

Appellant’s submissions

[20]     The grounds of appeal are that a miscarriage of justice occurred because of errors by the appellant’s trial counsel, and there was fresh evidence available “which would have given the appellant the chance to place the defence of provocation before the jury”.  A further ground advanced in the notice of appeal that the verdict was against the weight of evidence was abandoned. 

[21]     Mr Kaye submitted that trial counsel failed to investigate a possible defence of provocation;  failed to heed or act upon information given to him by the appellant as to his personal history;  was poorly prepared before trial;  and did not properly prepare or brief the appellant prior to his being called to give evidence. 

[22]     The appellant sought to adduce on appeal evidence, contained in affidavits of the appellant, Mrs Linda Oakley (the appellant’s wife from whom he was separated), Mr John O’Meara (a friend of the appellant), and Dr Alexander Simpson, a psychiatrist. 

[23]     The proposed evidence of the appellant in many respects parallels that which he gave at trial but it enlarges upon events leading up to the shooting, and refers to events that he said happened to him in the 1970s.  It comprised statements that he recollected the deceased giving him a hug when in the kitchen which made him feel uncomfortable and that he told the deceased that he did not like that.  His proposed evidence as contained in the affidavit was that his memory then became “somewhat fuzzy” but that the deceased again hugged him in the same way and he told him to “get out of my house”.  The appellant then described in detail what he says occurred thereafter, namely that he went to his bedroom, was in a panic, grabbed his rifle and magazine.  Because he thought someone was standing by the front door but out of sight, yelled out “don’t come through the door” and fired a warning shot into the floor.  He says that he remembered seeing the deceased walking down the hallway towards the bedroom who stopped outside the bedroom but as the deceased moved forward into the bedroom the appellant says that “I was scared” and he shot the deceased. 

[24]     The appellant says that his counsel Mr Clews was present when he made his statement to the police, but thereafter he only spoke with him on the telephone until about a month before trial.  He says that on the second time that he spoke with Mr Clews he told him what had happened to him when he was in the Navy.  In particular, he said he told Mr Clews he was raped whilst in the Navy.  He recalled Mr Clews said to him if we went into that sort of detail “they would think I was homophobic and it would not be any good for me.”  In the affidavit the appellant refers to incidents that he says occurred to him when he was serving in the New Zealand Navy in the 1970s, one event being an act of rape.

[25]     The proposed affidavit evidence of Linda Oakley and John O’Meara is inadmissible where it relates to what they say the appellant has said to them.  There is proposed evidence contained in the affidavit of Mrs Oakley about her observations of the appellant’s behaviour from time to time, and her description of the type of person that he was.  Mr O’Meara’s proposed evidence, likewise, is generally inadmissible as being hearsay.  Its relevance on appeal is limited to his description of his attendance at a meeting on 14 June 2005 with the appellant and Mr Clews prior to trial.  He deposes that he said to Mr Clews during that meeting “what about the Navy incident” and “I recall at the time I said this, Robert [the appellant] had told me that he had already discussed the issue with Stephen Clews, otherwise I would not have mentioned the subject”.  Mr Clews in his evidence has no recollection of that comment, although he accepts it may have been mentioned obliquely.  It is apparent that the remark was passed over it not being specific advice to Mr Clews of the alleged historical event.  Mr O’Meara goes on to express some opinions about the jury and matters of belief, all of which are inadmissible.

[26]     The fourth affidavit tendered by Mr Kaye is that of Dr Simpson.  He deposes that he interviewed the appellant on one occasion, sets out the detailed personal history as told to him by the appellant and he expresses his opinions as to the offence and his background.  He says:

Mr Oakley stated that he feared that he was very vulnerable and was going to get attacked, beaten, possibly sexually assaulted or killed.  He didn’t know quite what, but “it wasn’t going to be good…it was going to be bad”.  If the victim hadn’t stopped he would have shot again, and had anyone else come into the room he would have shot them.

[27]     The psychiatrist expresses the view that there was no evidence of thought disorder, delusion and the appellant’s mood was reactive and of normal range, there being no evidence of cognitive disorder.  He says that what he can describe is the effect of the early trauma upon the appellant, and the clinical condition he suffers as a consequence.

[28]     Dr Simpson then sets out a number of factual matters told to him by the appellant.  That is hearsay if given by him in evidence, unless it was also to be given by the appellant.  He refers to some matters which were given in his evidence, although not in great detail, by the appellant at the trial:

The series of events of threat from others around him in Kawerau in the weeks prior to the incident heightened his tendency to be nervous, fearful and vigilant for threat form others [sic].  He was not confident the police could protect him from the gang members or others in that community who had invaded his house and harmed others around him.

[29]     The doctor then expresses his opinion as to how the appellant was “likely to interpret” actions of the deceased, and how the appellant interpreted those actions.  He opines that the interpretation of the appellant’s actions when the victim did not leave “the house when asked and continuing to advance towards him despite the warning shot as confirming that sense of threat.  His tendency to see such behaviour as threatening would be increased over others in the community because of his trauma history”.

[30]     Mr Kaye submitted that the doctor’s opinion is a credible narrative of conduct of the appellant and when hugged by the victim, he perceived this as threatening and provocative.  According to counsel it “was clearly part of his personality”.  He said it was a disorder, could therefore have raised the defence of provocation in front of the jury, and that it is possible that the standard of a reasonable person may be modified because of the appellant’s history. 

[31]     Mr Kaye submitted that the psychiatrist’s evidence was fresh, cogent and should have been heard by the jury.  It is necessary to say, at this point, that such evidence could only have been given if there was evidence given at the trial by the appellant as to past events and how he felt about them.  Dr Simpson could not say what the appellant contended, unless it had been given in evidence by the appellant. 

[32]     The additional evidence, if it were to have been given at trial by the appellant, could not be said to be fresh, because it was known to him.  Likewise, whilst the opinion of the doctor may be “new” in the sense it had not been obtained at that time, it is evidence that could reasonably have been secured for trial.  The real issue is whether the self-defence approach at trial, as chosen by the appellant and his counsel, ought to be bolstered by the appellant giving the further evidence that he now wishes to give, supplemented by Dr Simpson’s opinions.  That leads on to the question of counsel error, or not, and whether nevertheless a miscarriage of justice may have arisen.

[33]     Mr Clews in his affidavit sets out how he was instructed on the morning after the killing and attended on the appellant at the Whakatane Police Station.  He records that the appellant then gave a relatively consistent narrative of drinking in the kitchen with the deceased and another and:

of something happening in the kitchen which caused him to retreat to his bedroom and get a firearm, of firing a warning shot into the floor when a person came down the hallway towards his bedroom, of warning a person that if he came into the bedroom he would be shot and of shooting the deceased when he kept coming.  Mr Oakley’s explanation was that he thought that the deceased would not stop and that if the firearm was taken from him that it would be used against him.

[34]     Mr Clews deposed that that explanation was unchanged from that then until the end of trial in 2005, a period of 10 months, and that the appellant consistently said that he had no recollection of what prompted him to retreat from the kitchen to obtain the firearm.  There was speculation that he had been assaulted in the kitchen because of injuries that he had received to his face and that on the narrative as described by the appellant self-defence was to the forefront. 

[35]     The appellant was originally declined bail but after this was granted he went to reside in Auckland and thereafter there was only telephone contact between Mr Clews and the appellant.  Counsel says he regularly cautioned the appellant against trying to reconstruct what had happened.  At an interview before the preliminary hearing, Mr Clews said that the appellant’s explanation remained the same, except that both of the men in the house had come down the hallway before the shooting.  On that occasion, Mr Clews deposed:

Mr Oakley told me that the deceased’s companion, Beaudine Ngaheu, came down the hallway and went out of sight into the front door foyer which was to the right of the bedroom as viewed from where Mr Oakley was standing.  He told me that when Ngaheu was out of sight he fired a warning shot into the floor.  He said that after that the deceased came down the hallway and was shot.  Mr Oakley told me that he thought they were in it together and that was why he fired.  He was certain that Beaudine Ngaheu was the person that he had trouble with in the kitchen.

[36]     Mr Clews also said that he told the appellant that he believed there was a strong case of self-defence but in the end it was a matter for the jury.  Mr Clews denied that at any stage had he been told of the appellant’s claim that he had been raped at aged 16 whilst in the Navy.  He deposes that he specifically asked the appellant whether the incident in the kitchen where he was hugged by the deceased may have initiated his violent actions but that Mr Oakley “insisted” that that was not the case:

He told me that his brother was gay and that he was not homophobic.  The incident in the kitchen and the “trigger” for Mr Oakley’s subsequent actions were discussed with him time and time again.  He had every opportunity to tell me that he had been raped in the Navy.  He did not.  When he gave evidence at trial he had every opportunity to give that evidence.  He did not.  Mr Oakley’s consistent explanation of the events was that he believed that he had been assaulted in the kitchen and that his subsequent actions were as a result of that assault.  His explanation was always that he could not actually remember what had happened but the facts fitted his belief.

[37]     Mr Clews went on to say that he went over the evidence or version of events as conveyed by the appellant on many occasions, but did not have a formal written brief prepared or typed because that was not generally his practice in cases such as this.  There was criticism by counsel for the appellant directed at Mr Clews on this aspect but we think it is not warranted.  The appellant is limited in his ability to read and a formal written proof would hardly have assisted him in the giving of his evidence. 

[38]     Mr Clews said that the reason the decision was made that he give evidence, and he accepted that advice, was that as the trial developed a number of pieces of Crown evidence required specific answer, or at least that was the judgment of counsel.  Mr Clews deposed:

One was the insistence by Beaudine Ngaheu that he and Mr Oakley had fought after the shooting rather than in the kitchen as Mr Oakley believed was the case.  That issue was a significant one in the context of self-defence.  Mr Oakley was insistent that he was not assaulted in the bedroom.  An assault in the kitchen was consistent with the injuries that he received was an explanation for Mr Oakley retreating to his bedroom and getting the rifle.  The second concern arose out of the issue of murderous intent and the need to establish that the shot that killed the deceased was fired from the hip rather than aimed.  The Crown placed great significance on the fact that the killing shot was through the heart.

[39]     Mr Clews deposed that the evidence given by the appellant was largely in accordance with what the appellant had told him.  But he diverted from it in one major respect in cross-examination where he referred to his training, and a “shoot to kill policy” if someone crossed a line.  That was unexpected by counsel. 

[40]     Mr Clews deposed that after the guilty verdict, he saw the appellant in the cells.  The appellant then said that he “wondered if he had over-reacted on the night because of the fact that he had been raped while he was in the Navy”.  Mr Clews’ evidence was that this was the first that he had ever heard of such an event.  He felt that it was of significance because had he known that the trial would have been run on a different footing.  His evidence was that he had reminded the appellant that they “had previously talked about whether there had been any sexual connotation in the hugs that he had described and that he had told me that they were not a concern”. 

[41]     Mr Clews says that the appellant’s reported statements to Dr Simpson that he feared he was “going to get attacked, beaten, sexually assaulted or killed” represents a significant shift on the appellant’s part on what he said to counsel.  Mr Clews says that the appellant’s:

consistent account was that his concern was that the deceased was not stopped by his warning shot and he concluded from that that the deceased had bad but unspecified intentions.  He feared that the rifle would be taken from him and used against him.

[42]     At this stage, we record that we accept as reliable and credible the evidence of Mr Clews.  We accept what he said, as the truth.

Legal Principles

Admission of further evidence

[43]     Since R v Sungsuwan [2006] 1 NZLR 730 (SCNZ), in order for an appeal based on counsel error to succeed an appellant must establish that a miscarriage of justice has arisen from the way in which counsel carried out (or failed to carry out) instructions.

[44]     In determining whether an error was made that gives rise to a miscarriage of justice, an appellate Court ought not to permit an appellant to re-litigate the trial on a different tactical basis.  We adopt what was said in R v S CA1/02 31 May 2002 at [43]:

We are concerned that in the course of this appeal, counsel for the appellant appeared to be attempting to re-litigate the trial on a different basis from the approach adopted by trial counsel.  It is not the purpose of appeals, when the  ground alleged as trial counsel incompetence, to re-litigate what are essentially matters of tactics and approach, particularly when a number of issues arose within the unfolding dynamics of the trial process.

[45]     If significant evidence ought to have been before the jury but was not, for whatever reason, a miscarriage of justice may have occurred.  It is unnecessary to determine whether the proposed evidence is “fresh” and “sufficiently credible”;  the real focus is on the importance of the omitted evidence if it had been given, along with the other evidence adduced, at trial.  In R v Bain [2004] 1 NZLR 638 (CA) at [22] Tipping J, for the Court, said:

[22]     …The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation.  If that were not so, new trials could routinely be obtained on the basis that further evidence was now available.  On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.  (our emphasis)

Miscarriage of justice

[46]     In addition to the affidavit evidence of both Mr Clews and the appellant, both were cross-examined before us.  We reject any allegation that there was error on the part of Mr Clews.  We accept his evidence that he was never told by the appellant that many years ago a rape event had occurred in the Navy.  We accept that he asked the appellant specifically as to whether he was concerned at all about the hug he received from the victim in the course of the drinking episode, and that the appellant advised him that it gave him no concern. 

[47]     The appellant’s evidence now is a reconstruction of that which he thinks might have occurred.  That is apparent from the evidence given by him at his trial.  That evidence boiled down to expressing fear for his safety.  He assumed that if the person(s) advancing got hold of the gun it would be used against him – he would be shot or clubbed.  This fear was against the background of the earlier events involving the Mob.  Further, he said that he thought it was Beaudine at the time he fired the warning shot.  Such evidence was consistent with his earlier statements and with his instructions to Mr Clews, namely that his actions were aimed at self-defence from perceived threats from two persons.

[48]     There was no basis, from the information presented to him, for Mr Clews to explore further any background history.

[49]     Likewise, we do not consider criticisms directed towards counsel concerning his preparation or briefing of the appellant can be sustained.  A review of the manner in which the trial was conducted, likewise, gives us no cause for concern over counsel’s competence.  The appellant was on bail, living in Auckland, and in frequent contact with his counsel.  He was interviewed at some length and briefed prior to trial.  As we have said, the absence of any formal or written brief is not decisive, to support an allegation of counsel error.  Different counsel may adopt varying means in preparing an accused to give evidence.  A written brief may be prepared but that may not always be the case.  There can be no fixed or rigid rule.  The appellant was not the type of person who could, or should, have been confined to any formal written brief that he might recite.  Such may have reflected upon his credibility and the spontaneity of his answers, especially as he could not read well.  The evidence that he gave was entirely in accordance with his instructions and if it were to be that he made an imperfect impression in the witness box, such could not have been attributable to counsel.  

[50]     We accept that Mr O’Meara said during the meeting on 14 June 2005, “what about the Navy incident” but it was something that passed over the head of Mr Clews.  That was because it meant nothing to him as he had not previously been advised about any significant Navy incident – apart from the fact that the appellant in his teenage years had been in the Navy.  There was nothing specific said at that interview which required Mr Clews to embark upon an investigation which might have led him to adopting a different, or alternative, theory of the case from the defence point of view. 

[51]     We do not accept there was any counsel error which in any way could have led to a miscarriage of justice.

[52]     The evidence sought to be presented now on behalf of the appellant is not fresh.  It was known to him at the time and really amounts to little more than a “wondering” whether some past event might have led him to act as he did.  But his evidence was, as were  his instructions to his counsel, that he was acting in self defence as it related to a perceived threat to him by two members of a gang.  He said that he believed that he had been assaulted by one of them prior to him seeking out the gun and ammunition and it was for that reason that he acted as he did and in self-defence.  Later speculation by him that he might perhaps have been acting for some other reason does not turn this conjecture into fresh evidence.  He knew of the historical Navy incident and chose not to disclose or use this as a relevant factor in his defence.  That might have been explained for various reasons, but he was specifically asked whether he was concerned about the hugging incident and his counsel was told that that was not the case.  It had no bearing upon his actions.  That being so we cannot accept that the evidence of the appellant now sought to be admitted is fresh, and indeed Mr Kaye accepted as much. 

[53]     Although in Mr Ngaheu’s evidence there is some support for the proposition that the hugs caused the appellant some agitation, there was however, no credible narrative arising from the appellant’s evidence suggesting this caused his later conduct.  In addition to the evidence already alluded to, when asked at trial “Did you push him away because he hugged you?” the appellant said he did not know, he remembered pushing him away.  As we have said, the evidence of Mr Clews, which we accept, was that the appellant instructed him that he was not concerned by the hugs.  What now occurs is that he and his counsel seek to advance a new ground or type of defence, despite such being available if he wished at the time of trial.  The ground he seeks to advance is contrary to his evidence at trial.

[54]     The situation described in R v Campbell [1997] 1 NZLR 16 (CA) is quite different. In that case, the evidence was that the victim put his hand on Campbell’s thigh, and looked and smiled at him. “At that moment [Campbell said] he had a flashback…to the anger and the pain” and lost control (at 19).

[55]     It is the evidence given by the appellant at trial, not that which he seeks to give to bolster it, that is critical to this appeal.  His evidence was that he acted because he perceived himself to be under threat of bodily harm from the actions of two men who were, he said, advancing on him in the hallway.  It is not a case of him not knowing what occurred in the kitchen because he was aware of the evidence of Beaudine Ngaheu given at the preliminary hearing many weeks before trial, and knew what the evidence would be, yet remained adamant to trial counsel that it had no bearing upon his actions.

[56]     Even if the evidence not be fresh, nor there be error of trial counsel, that is not the end of the matter.  If the evidence is credible and cogent, and if given or adduced at trial along with the other trial evidence, the evidence may have provided a foundation for the opinion evidence of the doctor, so as to result in the opportunity of a more favourable verdict, we need to consider whether a miscarriage of justice may have occurred. 

[57]     Although the focus of this inquiry is different, the same sorts of factors we have already considered are relevant.  In particular, it is pertinent that the circumstances as the appellant believed them to be clearly brought into play questions of self-defence, rather than there being a loss of control following a provoking act or statement.  The appellant went from the kitchen to his bedroom, closed the door, took out his rifle, loaded it with a magazine, waited upon the advancing two men, fired a warning shot and, according to his evidence, told them not to advance over a particular point, and fired at the victim when he did.  We do not think that could be credibly advanced that those were the actions of a person who had lost control because of an act of provocation, which had the necessary impact upon him by reason of him having a particular characteristic.  The defence theory now may be alluring, but the factual circumstances could not match it.  The same reasoning would apply to the argument the evidence would strengthen the case for saying the appellant did not have the required murderous intent.

[58]     To allow the appeal and order a re-trial would be to give the appellant the opportunity to advance a provocation defence but in a situation where he has relied upon self-defence in reliance on an entirely different act from that which would now be advanced as provocation.

Generally

[59]     This is a case where after a disadvantageous verdict, the appellant and his new counsel seek to advance a new and different defence to that adopted at trial.  As was said in R v S (above) it is to re-litigate the case on a different basis.  The facts which it is said would enable the new defence to be put were known and available to the appellant before trial.  He was able to advance the partial defence of provocation if he so chose.  It is difficult to marry his evidence, as it was given at trial, with the suggestion that he acted because he was provoked by the victim for an entirely different reason.  The short point simply is that the appellant’s evidence was directed at two aggressors approaching, and that is inconsistent with any now speculative opinion, (because the appellant himself did not so claim) that he may have acted through provocation by one of them. 

[60]     This is not a case where an available defence was not advanced but rather a case where on the instructions of the appellant, based upon an assessment of the deposition evidence and the appellant’s instructions, the defence of self-defence was the only credible answer to the Crown case.  A “second look” now, so as to argue that it might have been possible to advance an alternative or allied defence on re-trial to the charge of murder, would require the appellant to give evidence as to his loss of control for a reason different to that given at trial.  Opinions as to provocation in those circumstances are no more than conjecture.

[61]     Accordingly, we have come to the views that:

(1)There was no error on the part of trial counsel which may have given rise to any risk of a miscarriage of justice.

(2)We are not persuaded that there has been a miscarriage of justice on the ground of further evidence or any other ground.

Result

[62]     The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington