The Queen v Reti

[2009] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/2009
[2009] NZCA 271

THE QUEEN

v

RANGI MARIE RETI

Hearing:9 June 2009

Court:Arnold, Priestley and Winkelmann JJ

Counsel:A B Fairley for Appellant

M D Downs for Crown

Judgment:25 June 2009 at 3.30 pm 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       The appellant was convicted following a jury trial before Venning J on one count of wounding with intent to cause grievous bodily harm and one count of murder.  Both offences took place on the same day and involved the same victim, the appellant’s partner.  The Crown alleged that the appellant had first stabbed her partner in the leg and then, about an hour later, had stabbed him in the chest, causing his death. 

[2]       At trial the appellant admitted the actus reus of each offence.  She denied, however, that she had the necessary intents.  The appellant said she did not intend to cause the grievous bodily harm to the victim, simply to injure him.  In relation to the murder count, she said that she did not mean to kill the deceased, nor was she reckless within the meaning of s 167(b) of the Crimes Act 1961.  In the alternative, she said she was provoked.  The jury rejected these contentions. 

[3]       The appellant appeals against her convictions on the basis that she suffered a miscarriage of justice as a result of prejudicial material raised by the prosecutor in his cross-examination of a clinical psychologist called on her behalf.

Background

[4]       On the morning of 29 September 2007, the appellant and the deceased began drinking after the appellant had bought a carton of beer.  At some point in the day, an argument developed between them.  Ultimately, the appellant picked up a knife and chased the deceased with it, stabbing him in the thigh.  The wound bled profusely and the appellant made a 111 call to obtain assistance.  The police dispatched an ambulance to the property, which arrived around 4 pm.  The ambulance left about half an hour later after the deceased refused to go to the hospital for treatment.  While the ambulance crew was in attendance, the appellant and the deceased continued to argue and abuse each other verbally.

[5]       Around 5 pm that evening the ambulance crew were directed back to the property.  In the intervening period the appellant had again stabbed the deceased, this time in the chest.  On this occasion, the wound proved fatal. 

[6]       The appellant made two statements to the Police.  In the first, she initially denied that she had attacked the deceased with a knife.  However, after the statements from several eyewitnesses were read to her, she accepted that she might have been responsible for what happened.  In the second interview, the appellant admitted that she had stabbed the deceased in the thigh and in the chest, but denied that she had intended to kill him, although she accepted that she had intended to hurt him.  She said she was angry at the time.

The trial

[7]       The trial commenced on 6 October 2008.  After the jury had been empanelled, they were sent away for the morning so that the Judge could deal with some evidentiary issues.  In particular, the Crown wished to introduce propensity evidence, which the Judge summarised as follows:

[4]       The Crown wished to lead:

·     Evidence of an earlier injury to the deceased.  The Crown say the accused was responsible for stabbing him on that occasion also;

·     Evidence of an earlier incident when the Crown say the accused poured boiling water over the deceased; and

·     Evidence of earlier incidents of violence between the accused and the deceased.

[8]       The Judge ruled that evidence in the first two categories was inadmissible, essentially because it was conjectural and unreliable.  In relation to evidence falling within the third category the Judge said:

[27]     A number of witnesses give evidence of a general background nature to the relationship between the parties.  Evidence of a general background nature to the parties’ relationship…is relevant to put in context the events that occurred on the evening of 29 September.  I record that [defence counsel] did not take objection to evidence from a number of witnesses who gave such evidence as to the relationship between the parties.

[28]     But there is other evidence that the defence objects to about specific incidents which is not, in my judgment, to be regarded as propensity evidence at all.  The evidence is simply not relevant to the matters in issue, which is the issue of intent.

The Judge then went on to address the evidence of particular witnesses against this background.  The Judge noted that, depending on the way in which the trial developed, he might have to revisit these rulings.

[9]       The appellant gave evidence in her defence.  In that evidence she said, for the first time, that she had stabbed the deceased in the thigh because he had referred to an incident where, as a child, she had been raped by her father.  She gave a similar explanation for stabbing the deceased in the chest shortly after.  She said that the deceased had pushed her against the wall with his hand over her mouth, just as her father had done immediately before the rape.  The appellant said that the deceased’s action caused her to have a flashback to that childhood incident.  As she and the deceased continued to trade abuse, she went to the sink and picked up a steak knife.  The appellant said that the deceased spat at her and kicked her in the stomach and she “just retaliated back by attacking him with the knife”.  She said that, although she wanted to hurt the deceased, she did not want to kill him.

[10]     In the course of her evidence in chief, and under cross-examination, the appellant said that she had thought of suicide in the past and had been concerned about harming others, her children in particular, as a result of her state of mind.  She said that she and the father of her children had been abusive to each other, including using weapons.  She made similar observations about her relationship with the deceased, accepting that usually she was the aggressor.  She referred to being a patient in psychiatric wards in 1995 or 1996 and in 2005.

[11]     As we have said, the defence called a psychologist, Ms Anne Raethel.  Ms Raethel’s evidence was based in part on her consideration of the appellant’s medical records, although these were not produced in evidence.  She said that the appellant was suffering post-traumatic stress disorder (PTSD) arising from the sexual abuse she had suffered as a child.  She said that a person who had suffered such sexual abuse might have flashbacks if the right stressors were present.  Such a flashback could trigger some form of coping mechanism or reaction.  This could include reactions such as self-harm, excessive drinking, excessive sexual activity or furious driving.  The psychologist said that a flashback could result in a person being in a dissociated state although capable of continuing to perform mechanical or routine tasks such as driving a car.  Further, a PTSD sufferer could be more sensitive than an ordinary person to some stimuli and could lash out in a way that a normal person would not in response to them.

[12]     Ms Raethel referred to the fact that the appellant had suicidal thoughts (suicidal ideation) and that the appellant had at one point asked to be put in a safe place because she feared that she might harm her children.

[13]     In his cross-examination, the prosecutor, Mr Smith, questioned the psychologist about features of the appellant’s medical history as revealed by her medical files.  He referred to the fact that the medical records contained reports of suicidal and homicidal ideation and reports of abusive and aggressive behaviour (Ms Raethel had not mentioned homicidal ideation in her evidence).  In particular, he referred to several sets of medical notes in 1996 and 2003 which indicated that the appellant had had thoughts of harming her children.  Although there was no objection from the appellant’s (very experienced) trial counsel to this line of questioning, Venning J intervened to indicate that he did not consider that the cross‑examination on the medical notes was of assistance to the jury.  After that, the following sequence occurred:

If you could turn back to 231?….Yes.

This relates to the admission [to a psychiatric facility] in 1997 it would seem?….Yes.

The same one we’ve, we just read the discharge summary on?….(nods).

And just before halfway where it notes that [the accused] took to a woman an unidentified person?….Yes

This appears from the notes to be information provided by the patient, that is the [accused] to medical staff?….Correct.

And would that indicate that [the accused] took to a person with a knife and wanted to kill that person, that’s what the report indicates?….That’s correct.

Based on the information provided by the patient?…That’s what it says.

The accused in this case?….Yes

(For ease of reference, we will refer to this as the 1997 incident.)

[14]     Again, there was no objection from defence counsel at the time.  The cross‑examination continued:

Is homicidal ideation as a behaviour form part of your opinion and findings in this case?….No it doesn’t.

Does homicidal ideation with a plan have any relationship in this case in your opinion to the post-traumatic stress disorder you have diagnosed?….I’m just thinking that one through, um, harming herself does, so the suicidal ideation yes, I’m not aware of homicidal ideation being put forward as a criteria of any sort for post-traumatic stress disorder, so I didn’t include it as a criterion so no the answer is no.

[15]     The cross-examination ended shortly after this, there were some brief questions in re-examination and then, following the conclusion of the psychologist’s evidence, the defence closed its case.

[16]     Defence counsel then sought a mistrial, on the basis that the evidence led by the Crown during the course of the cross-examination of the psychologist was unfairly prejudicial to the appellant, being in the nature of propensity evidence which the Judge had earlier ruled inadmissible.

Venning J’s ruling 

[17] Venning J rejected the application, giving written reasons the following day. The Judge’s assessment was that the impugned material “should not impact on the jury’s ability to consider the case against the accused properly and fairly and that any potential prejudice to the accused from the evidence could be addressed by a strong direction”: at [8].

[18]     The Judge said that he did not regard the evidence about the 1997 incident as being relevant to the issues before the jury.  He noted that the focus of the trial had been on the events of 29 September 2007 and the interaction between the appellant and the deceased.  Numerous witnesses had given evidence, over the course of six days.  The impugned evidence was relatively brief, and the jury was not particularly interested in it.  The Judge said that the evidence was led in the context of the prosecution’s probing of the psychologist’s diagnosis of PTSD rather than in the context of the appellant’s intent on 29 September 2007.

[19]     The Judge noted that the primary consideration in this context was the need to ensure a fair trial for an accused person.  He said that he considered a fair trial could be ensured in this case, and any potential prejudice countered, by a strong direction.  Further, he indicated that the offending passage would be removed from the transcript so that the jury would not have it with them when they retired.  The Judge emphasised that this outcome was based on his assessment of the particular jury.

[20]     The passage dealing with the 1997 incident was removed from the transcript and the Judge directed the jury in the following terms:

[42]     The second matter [about the evidence] arises out of Mr Smith’s cross-examination of Ms Raethel.  During that cross-examination he asked the witness a number of questions about the accused’s medical notes.  Some of the notes referred to statements by the accused as to her feelings towards others.  One recorded what she had said about taking to a woman with a knife.  Others recorded her thoughts of harming her children.  The questions about the notes were only relevant, if at all, to Ms Raethel’s opinion about her diagnosis of post-traumatic stress disorder.  In the end result, Mr Smith did not make anything much of them in his closing and nor did he seriously challenge Ms Raethel’s diagnosis.  What you can not and must not do is to take those disclosures from the accused’s medical files into account against her as evidence relevant to the issues of intent and provocation that you have to decide in this case.  They are historical records of what was said many years ago.  They have no relevance to and cannot assist you on the issue of the accused’s intention on 29 September last year.  Also, as you will appreciate, the accused was not given the opportunity to comment on them.  She was not asked about them when she gave evidence.  So as I know you will understand, it would simply be unfair and wrong to take those references into account in any way in relation to the questions you have to decide in this case.  I direct that you are to ignore them in relation to the issues you have to decide of intent and provocation.

Basis of appeal

[21]     For the appellant, Mr Fairley (who did not appear at trial) argued that Mr Smith’s cross-examination of the psychologist had the effect of introducing evidence of the type that the Judge had earlier excluded, in particular concerning the 1997 incident.  This, combined with the prosecutor’s frequent references in the cross-examination to “homicidal ideation” or “homicidal ideation with a plan”, was highly prejudicial.  It was particularly so because, given the nature of the defences, the jury had to reach an assessment of the appellant’s credibility.  Mr Fairley argued that it was possible that the jury gave weight to this evidence, reaching a verdict that otherwise it might not have reached.  As a consequence, there was a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act.

[22]     Mr Fairley accepted that both prosecution and defence had led evidence of the general nature of the relationship between the appellant and the deceased, as contemplated by the Judge’s ruling.  That evidence pointed to violence within the relationship, much emanating from the appellant.  But, he submitted, the impugned evidence went further because it was specific in nature.

[23]     Mr Fairley argued that, having heard the prejudicial evidence, the jury should have been discharged.  He submitted that a strong direction to the jury to ignore the prejudicial material was insufficient to remove the possibility of a miscarriage of justice because that material came in at the end of the defence case and the direction was not given until the following day.  During the intervening period, closing addresses had taken place.  Mr Fairley also said that the Judge had addressed only the 1997 incident in his ruling on the discharge application, and not all the prejudicial aspects of the cross-examination.  Further, the jury was not told about the excision of evidence concerning the 1997 incident from the transcript.  Accordingly, they may have been confused as to the position, particularly as the Judge gave the standard direction that in the event of a conflict between the transcript and the jury’s memory of the evidence, the jury should prefer the latter (at [47]).

[24]     We should record that Mr Fairley said that he did not allege bad faith on Mr Smith’s part, or a deliberate attempt to circumvent the Judge’s propensity ruling.  His submission was not focussed on prosecutorial misconduct but on what he saw as the serious consequences of the jury hearing the prejudicial material.

Discussion

[25]     As we have said, Ms Raethel based her evidence in part on the appellant’s medical records.  Those records apparently contained information about various events affecting the appellant and her reactions to them.  In principle, Mr Smith was entitled to explore the foundation for Ms Raethel’s opinion by reference to the medical reports.  But to do so ran the risk of referring to evidence of the type that the Judge had ruled inadmissible under s 43 of the Evidence Act.  Accordingly, before embarking on his cross-examination, Mr Smith should have sought a ruling from the Judge.  Had he done so, he would have been required to explain what his purpose was, and this may have resulted in a more focussed cross-examination.  Although we are removed from the trial context, we found it difficult to discern precisely what it was that Mr Smith was trying to achieve.  But no such ruling was sought, and ultimately this led to the application for discharge.

[26]     The Judge considered that by a combination of deleting the evidence of the 1997 incident from the transcript and giving the jury a strong direction, the possibility of prejudice to the appellant would be removed.  The Supreme Court in R v Thompson [2006] 2 NZLR 577 set out the approach to be adopted where it is alleged that a judge has wrongly refused to discharge a jury. The Court said:

[16]     Whether or not to discharge a jury which has heard a witness disclose illegitimate prejudicial material is for the discretion of the trial Judge on the particular facts.  An appellate Court will not lightly interfere with the exercise of the discretion.  It depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. [R v Weaver [1968] 1 QB 353 (CA) at 359 – 360.]

[27]     In the end the issue for us is, as Mr Fairley submitted, whether there has been a miscarriage of justice: see R v Thompson at [14]. Mr Downs for the Crown argued that not every departure from good practice will render a trial unfair, particularly if it is an isolated incident subject to a clear judicial direction. That is so, but, as Mr Downs also acknowledged, the right to a fair trial is absolute: see Randall v The Queen [2002] 1 WLR 2237 (PC) at [28].

[28]     Mr Downs also relied on R v Howse [2006] 1 NZLR 433 (PC). There the Privy Council held (by a majority) that the admission of evidence that was more prejudicial than probative and “very serious errors” by the trial Judge did not result in an unfair trial, having regard to the overall strength of the case against Mr Howse. Mr Downs said that this principle applied in the present case as the Crown case against the appellant was a very strong one, although he did not seek to rely on the proviso to s 385 of the Crimes Act 1961.

[29]     We have reached the view that we do not have a proper basis for interfering with the trial Judge’s exercise of his discretion, for the following reasons.

[30]     First, it was part of the defence case that the appellant had an anger management problem and was prone to act violently, that she feared she might harm her children and that in the course of her relationships with the father of her children and the deceased she had been violent (as had they).  The defence said that these responses resulted from the abuse she suffered as a child, which gave rise to her PTSD.  In his cross-examination Mr Smith went further than this, in the sense that he referred to specific instances underlying these general propositions, and in particular to the 1997 incident.  But the general themes that the appellant was prone to violence and that her relationship with the deceased was marked by violent incidents in respect of which she was generally the aggressor were before the jury as part of the defence case.  Inevitably, then, the extent of any prejudice arising from the impugned material was reduced.

[31]     Second, Mr Fairley expressed concern about the prejudicial effect of Mr Smith’s questions about “homicidal ideation”/“homicidal ideation with a plan” and their relationship to the diagnosis of PTSD on the appellant’s “lack of murderous intent” defence.  But it was not part of the Crown case that the appellant had planned to kill the deceased.  Rather, the evidence indicated a situation of building tension on the day in question, which resulted in the two stabbings within a relatively short timeframe in the late afternoon, broken by the attendance by the ambulance crew. 

[32]     In this context, we note that Mr Downs submitted that, for various reasons, the appellant faced considerable difficulty in arguing that she had neither of the murderous intents alleged against her, or that she was provoked.  These included the fact that the second stabbing occurred within less than an hour of the first, that the evidence was that the appellant was prone to violent responses, both generally and in the context of her relationship with the deceased, and that her story had changed over time.  The strength of the Crown case was such, he said, that the impugned material would have had little or no impact on the jury.  While we see some force in that submission, we do not base our decision on it.  This is because the requirement for a fair trial is fundamental, and we need to be satisfied that what Venning J did was effective to remove any prejudice, giving appropriate recognition to his assessment of the situation as the trial Judge.

[33] Third, although we have not been able to obtain a transcript of the closing addresses, it seems clear from the extract from the Judge’s summing up quoted at [20] above that the Crown did not attempt to make anything of the prejudicial material, or indeed to challenge Ms Raethel’s diagnosis. Ultimately, Mr Smith’s cross-examination of Ms Raethel does not seem to have been particularly material to the Crown case. As a consequence, Mr Fairley’s submission that the Judge should have directed the jury immediately as to the inadmissibility of the evidence relating to the 1997 and other incidents, rather than waiting until the following day when he summed up, has much less force. In terms of the likely impact of the impugned material on the jury, the present case stands in dramatic contrast to what occurred in Stewart v R [2009] NZSC 53 at [24] – [25].

[34]     Fourth, the Judge gave what Mr Fairley accepted was a strong direction.  That direction was comprehensive, in the sense that it referred to all the cross‑examination arising from the medical notes.  In his ruling refusing to discharge the jury, Venning J expressed confidence that the jury would heed his direction.  We do not consider that the fact that the direction was made on the day after the impugned evidence had been led, and after the closing addresses had been delivered, renders the verdict unsafe, particularly given the point made in [33] above. The Judge also removed the passage concerning the 1997 incident from the transcript, although he did not alert the jury to this.  Although it might have been better had he done so, we do not think the omission was fatal.  That omission would not, in our view, have reduced the impact of his direction on the jury.  We see no realistic possibility that the jury would have speculated as to the missing segment in some illegitimate way.

[35]     Finally, we note that the appellant was represented by very experienced trial counsel.  Putting to one side the 1997 incident, no objection was taken to the cross‑examination on the various incidents revealed by the medical reports.  The Judge intervened to stop this line of questioning, on the ground that it was irrelevant and the jury was not deriving any benefit from it.  The fact that counsel did not object may well support the Judge’s assessment that it was having no material impact on the jury.  Counsel’s attitude to the evidence about the 1997 incident was, of course, different, in the sense that it formed the basis for the discharge application.

[36]     Overall, we are not persuaded that the trial was unfair or there was a risk of a miscarriage of justice.  The steps taken by the Judge were, in our view, sufficient to address any prejudice.

Decision

[37]     We dismiss the appeal.

Solicitors:

Crown Law Office, Wellington