The Queen v Rewiri

[2008] NZCA 355

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/2008
[2008] NZCA 355

THE QUEEN

v

JOSEPH RUSSELL REWIRI

Hearing:28 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ

Counsel:G J King for Appellant

A Markham for Crown

Judgment:8 September 2008 at 3.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       Whether the appellant’s claim that he was paranoid and hyper-vigilant arising from a prolonged threat to his life could support a finding he had a special characteristic for the purpose of provocation is the question this case poses (s 169(2)(a) Crimes Act 1961).

[2]       The appellant was found guilty of murder by a jury at Rotorua on 11 December 2007.  He now appeals against his conviction alleging the trial Judge, Rodney Hansen J, wrongly rejected his claim to a special characteristic thereby causing a miscarriage of justice.

Facts

[3]       The appellant and the deceased had had been close friends from the 1990s.  They fell out over a dispute regarding the appellant’s girlfriend.  In July 1999, arising from this dispute, the appellant detained and assaulted the deceased.  No complaint was made to the police.  The appellant took the deceased’s car in retaliation for what he believed was the deceased’s relationship with his girlfriend and the deceased in turn stole a vehicle owned by the appellant in response.

[4]       A further incident occurred in 2000 when the appellant shot at the deceased’s vehicle.  The appellant said that he had obtained the gun to protect himself from the deceased’s threats.  The appellant was tried, convicted and imprisoned in 2002 and released in late 2003 arising from these events.

[5]       The appellant claimed that by 2000 he had become aware that the deceased had a “contract” out to kill him.  He said this threat was confirmed by others when he was in prison.

[6]       After his release from prison the appellant said he heard from a number of different people that there was still a contract to kill him.  He said that he became “paranoid” and “hyper-vigilant”.  He would constantly change his routine and take note of registration numbers of cars he thought were following him. He armed himself with a pistol which he kept with him at all times.  He said in evidence at trial he was very “paranoid and suspicious of people”.

[7]       The appellant called his partner and a number of his friends to give evidence to confirm his reaction to the threat to kill him.  The appellant admitted he had taken methamphetamine during this time and accepted his paranoia had increased “a little” from his use of the drug.  However, he said he had not taken the drug immediately preceding the killing.

[8]       There is some dispute about what happened on the day the appellant shot the deceased.  The appellant’s case was that on 31 May 2006 he was reversing out of a driveway when he noticed the deceased’s vehicle parked across the road.  He had his pistol with him.  He claimed that the deceased followed his vehicle and eventually overtook him.  The appellant says the deceased made a gun gesture with his hand, pointing at his head.  Both men then stopped their vehicles.  The appellant says he got out of his car and the deceased then tried to run him over with his vehicle, narrowly missing him.  The deceased then drove off with the appellant following.

[9]       As he overtook the deceased’s vehicle, the appellant says the deceased tried to run him off the road and shunted the appellant’s vehicle several times.  The appellant says by this time he was “freaking out”.  When the vehicles stopped, the appellant grabbed his gun and jumped out of his car, he says intending to run off.  The appellant says he saw a flash of silver and believed it was a stainless steel pistol he knew the deceased owned.  He then shot the deceased.

[10]     The Crown case was rather different.  They suggested the appellant had triggered the confrontation to give him an excuse to kill the deceased.  They alleged the appellant had deliberately collided with the deceased’s vehicle on a number of occasions throughout that journey.  Once the vehicles stopped the Crown case was that the appellant approached the deceased with his gun raised.  The deceased repeatedly said “no, no” but the appellant shot the deceased three times.  The deceased died two days later in hospital.  The deceased was shot once in the head, once in the chest and once in the groin.  The appellant also kicked the deceased in the head several times when he lay on the ground.

[11]     The appellant’s defence at trial was self-defence, or, if rejected by the jury, provocation.  During the trial the appellant requested the Judge sum up to the jury on the basis that the accused had a specific characteristic relevant to provocation.  In response to this request the Judge in his ruling said:

I am satisfied that the accused’s paranoia is not a special characteristic for the purpose of s 169(2)(a).  I accept that there is a sufficient connection between the claimed characteristic and the provocation but the evidence does not establish that it has “a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual’s character or personality” – McGregor at 1081. There is no suggestion that the accused suffers from a recognised mental disease, disability or disorder – see the remarks of Tipping J in Rongonui at para [236]. He relies on a paranoid response to a specific perceived threat, acknowledged to be aggravated (and arguably the product of) chronic methamphetamine use. That is not part of his character or personality and cannot be a special characteristic for the purpose of provocation.

[12]     The Judge accepted earlier in this ruling that there was a credible narrative allowing provocation to be put to the jury.  He ruled that the acts of the deceased before the day of the killing could not be acts of provocation but that they were relevant background material to the events on 31 May.  The acts said to constitute the provocation were therefore to be those alleged on the day of the killing.

Discussion

[13]     The appellant in this appeal identified the special characteristic as paranoia and hyper-vigilance – somewhat wider than at trial.  It was common ground that before a special characteristic could be put before the jury, counsel had to convince the trial Judge that there was significant evidence of this characteristic and that it qualified in terms of s 169.

[14]     We accept, as did the trial Judge, that his decision whether the threshold had been met was to be based on the evidence given by the appellant and his witnesses (R v Rongonui [2000] 2 NZLR 385 at [233] (CA)).

[15]     That evidence was to the following effect; from as early as 2000 the appellant believed that the deceased had hired someone to kill him; the appellant was wary of people, watching for those who might be following him, and taking notes of what he believed were suspicious vehicles; he constantly changed his routine and regularly changed his accommodation and kept a pistol close at all times.

[16]     The appellant’s case at trial was that these threats to his life were real.  He called two witnesses at trial who said that they had been asked by the deceased to kill the appellant.

[17]     The appellant says that the evidence from himself and his witnesses established that his paranoia and hyper-vigilance were of such significance that it distinguished him from an ordinary person in such a situation.  The appellant says this evidence established an extreme form of paranoia which was all-consuming.  He says that the paranoia was a permanent condition in the sense that he had suffered from it for a number of years.  Thus, the appellant submits, the Judge was wrong when he concluded that the paranoia was not a special characteristic.

[18]     The appellant submits that the Judge’s failure to allow this specific characteristic to be put to the jury meant the jury did not have a relevant consideration when assessing provocation.  As a result a miscarriage of justice occurred.

[19]     We are satisfied the Judge was correct to reject the appellant’s claim of paranoia and hyper-vigilance as a special characteristic in this case.

[20]     The appellant’s case was that the threat to his life was real.  In those circumstances therefore, the appellant’s reaction to the threat to his life was neither irrational nor abnormal.  The essence of a special characteristic is that it sets an accused aside from the reaction of ordinary persons to the circumstances (R v McGregor [1962] NZLR 1069 at 1081 (CA)). In this case, given the threat to kill may well have been real, the appellant’s reaction was hardly surprising. There was no evidence to suggest that his reaction was different from the ordinary person in such a situation. Indeed, the appellant’s partner said in evidence that given the threats and the deceased’s conduct, she “understood where he was coming from”.

[21]     This case has similarities to R v Su CA407/00 5 July 2001 where this Court considered an application to admit fresh evidence relating to the characteristics of the appellant for the purpose of a defence of provocation.  The appellant was alleged to have murdered his wife.  At trial, one of the defences was provocation.  There was no assertion of any special characteristic of the appellant.  After trial, a report by a forensic psychiatrist was obtained which the defence claimed established a special characteristic.  In considering the evidence, this Court said:

[23]     Second, we are not satisfied that the evidence is sufficiently cogent in the sense that, putting it alongside the other evidence in the case, the jury might reasonably have been led to a different verdict.  Dr Skipworth’s views are expressed as probabilities and it is not clear whether “an adjustment disorder with depressed and irritable moods” is a recognised clinical condition.  Nor is it apparent that its description as “the development of emotional and behavioural symptoms in response to an identifiable stressor” is anything more than a statement that upon the departure of his wife, the appellant was in a distressed state which led him to be miserable, irritable, and lacking his usual interest in work.  It is difficult to distinguish the appellant’s state, as so described, from that which would ordinarily be expected upon the break-up of a marriage following the departure of the other spouse.  Put another way, there is nothing to suggest that the appellant in the circumstances which faced him at the time had any characteristics which would distinguish him from others facing the normal stresses which accompany a parting of this kind.

[22]     As in Su, it is difficult here to distinguish the appellant’s reaction from that of an ordinary person faced with a prolonged threat to their life.

[23]     In this case, “paranoia” and “hyper-vigilance” were simply words used by the appellant and his lay witnesses to describe certain actions they observed of the appellant.  Before the trial Judge and this Court, the “paranoia” and “hyper-vigilance” were asserted to be an abnormal state of mind of the appellant sufficient to constitute a special characteristic.  To establish that the appellant had an abnormal state of mind, or indeed even an abnormal reaction, clearly required expert evidence.  All the lay witnesses could do was to describe what they saw and heard.  To establish whether what the appellant saw and heard had significance as far as the appellant’s mental state was concerned required appropriate expert psychiatric evidence.  None was given at trial.

[24]     Counsel for the appellant suggested, in his reply submissions, that we should consider ordering such an expert psychiatric report.  We reject such an approach.  This trial was run by a very experienced senior counsel who was clearly alive to the difficulties of provocation and the complexities of special characteristics.  There is no reason to suppose the question of expert evidence in this area was not considered by him.

[25]     There was therefore no evidence before the Judge that the appellant’s reaction was beyond that expected, no evidence of any abnormal state of mind, and therefore no evidence of a qualifying characteristic.

[26]     The Judge in his reasons for rejecting the assertion of a special characteristic also mentioned the appellant’s methamphetamine use.  It is well established that a state of mind self-induced by intoxication cannot be relied upon as a qualifying characteristic (see Rongonui).

[27]     The appellant criticised the Judge’s reliance upon methamphetamine use in his judgment as not being justified by the evidence.  The evidence of the appellant as to the effect of methamphetamine use on his state of mind was equivocal.  In evidence-in-chief he accepted his use had played a part in exacerbating his paranoia but in cross-examination he seemed to resile from that admission.  Other witnesses described chronic and heavy use of methamphetamine by the appellant.

[28]     We think there was evidence upon which the Judge was entitled to conclude that the appellant’s reaction to the threat was aggravated by his methamphetamine use.  However, for reasons given, whatever assessment is made of the effect of the drug it could not have affected the rejection of the appellant’s claim of a special characteristic.

Result

[29]     We are satisfied that the Judge correctly rejected the claim of the accused that his paranoia and hyper-vigilance was a special characteristic for the purpose of s 169(2)(a) Crimes Act.

Solicitors:           
Crown Law Office, Wellington