The Queen v Rex William Kitchen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA183/02

THE QUEEN

REX WILLIAM KITCHEN

Hearing:	10 December 2002
Coram:	Gault P Blanchard J McGrath J
Appearances:	R M Lithgow for Appellant J C Pike for Crown
Judgment:	17 December 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

A jury in the High Court at Rotorua found the appellant guilty of the attempted murder of his former partner. He pleaded guilty to related charges of threatening to kill and assault with a weapon and was found not guilty on a further charge of threatening to kill on an earlier occasion. On 6 June 2002 Ellis J discharged him in respect of the assault charge on the Crown’s motion and imposed concurrent sentences of two and a half years imprisonment on each count on which he was convicted. He now appeals against his conviction on the attempted murder charge and against his sentence.
The events giving rise to the offences began when the appellant entered into a relationship with the victim in September 2001. They moved in together shortly afterwards. It appears that the relationship was beset with difficulties from the beginning. Although there is a dispute as to who ended the relationship it was the victim that moved out of the home in December. She returned to live with her former partner. This became a source of distress to the appellant who began to phone the victim repeatedly, allegedly threatening to kill her and himself unless she returned to him. On 1 January 2002, during one of these phone calls, the victim told the appellant that there was no chance of them getting back together. This caused the appellant to take a large kitchen knife and drive over to the victim’s house. Once there he concealed the knife down the back of his shorts and knocked on the front door. The victim answered the door and he again asked her to come back to him. When she refused he pulled out the knife. The victim tried to run away around the outside of the house. The appellant caught her when she tripped and fell against the boundary fence. He then pushed her backwards over the fence and raised the knife above her head, saying that he would do twenty years in jail to see her dead. At that point the victim’s partner came out of the house accompanied by his dog, a “shepherd rotty cross”. The appellant desisted in his attack. The victim fled and, after a short conversation with her partner, the appellant left. After returning home the appellant phoned the police and told them what he had done. When interviewed he claimed he had desisted and thrown the knife to the ground at an early stage.
The accused having admitted when interviewed that he had produced the knife and threatened to kill the victim, the central issue for the jury was whether he intended to murder her. The Crown case was simply that all the evidence supported such an intention. The case for the defence was that the appellant was not thinking straight and in no position to form an intention to kill, and that such an intention would be quite out of character for him. The evidence relied upon by the defence was the report of Dr Dean, a registered psychiatrist. As Dr Dean was unavailable to give evidence parts of his report were read into evidence by consent. They record the appellant’s deteriorating mental condition due to alcohol use, medication changes, blood sugar levels, work stressors, and the relationship breakdown. There was specific reference to the appellant’s diabetic condition as a source of ongoing difficulty for him, although it is notable that his blood sugar readings, tested around the time of the offence, were all within normal range. Parts were excised from the report by agreement, including the opinion that it was doubtful that the appellant had the specific intent to murder the victim at the time of the alleged offence. That part of the report expressing opinion in light of the narrative of the appellant’s background which was read to the jury was as follows:
It is my opinion that the above factors influenced Mr Kitchen’s behaviour and thoughts at the material time. He has partial memory loss for the alleged offence and on another occasion of agitation and distress. Memory loss can occur during periods of altered level of arousal. Mr Kitchen’s agitated behaviour appears to have been triggered following disagreements with his former partner. These times were associated with some alcohol intake and a possible reduction in his blood sugar level as a result of a high accupril dosage. This is on a background of psychological distress, with a low mood and thoughts of suicide. Mr Kitchen’s thoughts and actions were not well-considered as a result of this. His actions and behaviour appear quite confused and poorly organised.
At the close of the Crown case defence counsel elected not to call evidence having obtained written instructions to that effect.
When this appeal was first scheduled to be heard it became apparent that the appellant was contending that his principal ground of appeal rested on complaints about the conduct of his case at his trial. The fixture was vacated to allow time for a waiver of privilege to be signed and for Crown counsel to consult with trial counsel in respect of the complaints in the affidavit sworn by the appellant.
It transpired that in the time before the matter came back before the Court it proved impossible to obtain a sworn affidavit from trial counsel. A letter from him addressed to the Crown Law Office was appended to the Crown’s written submissions. Counsel seemed content to proceed with the Court taking the letter into account. Considering that the primary complaint of the appellant was directed to the informal way in which the evidence of Dr Dean was given at the trial, some greater formality on appeal would have been expected. However, at the commencement of his oral argument Mr Lithgow for the appellant urged the Court not to approach the matter by reference to the conventional authorities relating to complaints on appeal against the performance of trial counsel. He advocated a more general approach, seeking to have the Court consider whether, overall, the appellant received a fair trial. As his argument was developed it became apparent that its general thrust was that the manner in which the trial was conducted was unsatisfactory and that the appellant seeks a new trial with the opportunity himself to give evidence and to have Dr Dean present to give his evidence.
The circumstances in the period prior to the trial appear undisputed. Counsel originally assigned to represent the appellant at trial was unable to do so. He arranged for counsel who eventually appeared to take over the matter. The new counsel did not receive the full file until approximately three weeks before the trial. He spoke to the appellant at length on the telephone on several occasions and had extensive written instructions. He well knew the appellant denied having intended to kill the complainant.
Counsel had formed the view that a defence of automatism was not realistically available in view of the clear recollections of the appellant when interviewed by the police. He knew that the appellant was of the view that his medical condition and particularly his diabetes contributed to his actions but that around the time of the incident his blood sugar levels were normal.
Counsel considered it prudent to seek psychiatric evidence. He knew the appellant had been examined by Dr Dean earlier and arranged for him to see the appellant and prepare a report. He knew Dr Dean would be unavailable for the trial but secured the agreement of Crown counsel for psychiatric evidence to be read to the Court.
With the agreement of counsel and with the approval of the trial Judge the parts of the report to be read were identified. Defence counsel had taken the view that other parts of the report would not be admissible and therefore concentrated on what he regarded as important. According to his letter:
I wanted from the psychiatrist evidence that Mr Kitchen was indeed a diabetic and on medication and that this, together with past behaviour may have meant that he was acting without full knowledge of his behaviour and intentions.
I thought that having this evidence go to the Jury uncontradicted would be good for Mr Kitchen’s defence.
It is common in criminal trials for evidence that is not contested to be read to the Court. Usually it is Crown evidence that is given in that way but there can be no difference in principle where it is evidence for the defence.
Mr Lithgow, in support of the appeal, submitted that the evidence would have carried far more weight had Dr Dean been present and given his evidence orally. Trial counsel should have applied for an adjournment so this could be arranged. Had that occurred, Dr Dean would have been cross-examined on his opinion, no doubt with reference to the apparently clear recollection exhibited by the appellant when interviewed on the day of the incident and the statements said by witnesses to have been made by the appellant during and after the attack. Recognising that, Mr Lithgow nevertheless contended that the manner in which the case was handled was unsatisfactory and seriously prejudiced the appellant’s defence. He submitted that the trial could be described as a “rush job” and that the conviction cannot be regarded as safe.
Mr Lithgow was critical also of Crown counsel. He referred to the summary of Crown counsel’s address to the jury appearing in the transcript of the Judge’s summing-up. It was submitted this shows that the Crown relied on the appellant’s medical condition, affected by alcohol, as supporting the contention that, faced with the break-up of the relationship, he intended to kill. This was said to have been unfair when Crown counsel knew the opinion of the psychiatrist, concealed from the jury, that it was doubtful that the appellant had the intent to murder at the material time.
The trial Judge was also said to have erred. He told the jury that an intention affected by drink is still an intention and there was no suggestion that the accused was drunk though he had consumed quite a bit of beer. Counsel submitted that the jury should also have been directed that alcohol can make aggressive acts appear to be intended when they are clumsy and confused and the ultimate inferred purpose unintended.
However attractively packaged, the argument in support of the conviction appeal came down to criticism of the manner in which the appellant was represented by trial counsel. His judgment that having the uncontradicted evidence read to the jury was advantageous to the accused – having proved unavailing – is said to have been prejudicial. The advice given to, and accepted by, the appellant that he should not give evidence is said to have misled the appellant. These errors, taken together with the unfair stance of Crown counsel and the incomplete direction of the Judge are said to have given rise to a miscarriage of justice because the appellant did not receive a fair trial.
We do not accept that. A full reading of the transcript shows that the appellant was well represented by trial counsel through the trial. The evidence of the appellant’s condition was more in the nature of explanation for his conduct than a strong basis for a defence of absence of intention. The judgment of trial counsel in having the evidence read to the jury by consent was open and cannot be categorised as “radical error” within R v Pointon [1985] 1 NZLR 109, 114. The appellant gave a written instruction to his counsel that he would not give evidence. That was after full discussion and after listening to the Crown case. It is not sufficient that the decision made on advice is regretted later. We are not persuaded that these decisions made by or on the advice of counsel have given rise to a miscarriage of justice.
We are equally not persuaded that the submission of Crown counsel was unfair. We do not have a transcript of his address, but the summary in the Judge’s summing-up that provided the basis for the criticism does not give us concern. Counsel was entitled to address by reference to the evidence before the Court. The undisclosed opinion of Dr Dean was untested by reference to the evidence given by the witnesses. It was not in such terms that a contrary view was precluded. Indeed it is difficult to see how the charge could have been presented without a submission by the Crown that in all the circumstances intent to kill was to be inferred.
The criticism of the summing-up must be rejected. It was overall a sympathetic summing-up. Immediately after the reference to the consumption of beer the Judge continued:
The accused’s desire for [the victim] to return is, of course, a key consideration for you. You may consider his expectation that she might return to him to be unreasonable, looking at the matter in hindsight. You should always remember, however, that affairs of the heart, especially where lonely people are involved, do not depend so much on reason, as on emotion and feelings. You may think the accused was desperate for her return and this motivated the threat or threats and his extraordinary behaviour. Use your common-sense and knowledge of human nature. Don’t be too quick to draw adverse conclusions in these circumstances. I have already mentioned that the evidence of the accused’s good character that was given actually by asking the Police and in other ways, the accused is entitled to put this in the balance when you are considering his intentions.
We have no doubt that the jury fully appreciated the competing contentions they were required to assess. It was made abundantly clear that even though in the state he was in he had made statements consistent with intent to kill, it did not necessarily follow that he really intended to take the complainant’s life. It was for the jury to determine whether that intention was proved in light of all the evidence of his condition and his conduct. It was fairly put to them and the verdict plainly was open on the evidence.
The appeal against conviction is dismissed.
The appellant was sentenced under the Criminal Justice Act 1985, the sentencing having taken place prior to the coming into force of the Sentencing Act 2002. The Judge referred to s7 of the former Act which required the Court to impose as short a term of imprisonment as is consistent with the safety of the public. Having referred to the principal appellate judgment on attempted murder (R v Allan and Jennings CA417/88, judgment 23 June 1988) and a number of authorities dealing with the extent to which mental illness may affect the sentencing task, the Judge selected a starting point of five years imprisonment. Taking the view that the case fell at the very lower end of this type of offence, the Judge deducted two and a half years to reflect the mitigating features, including the related guilty pleas, co-operation with the police, the lack of relevant previous convictions and the fact that the appellant suffered from a pre-existing medical condition. He then sentenced him to two and a half years imprisonment on each count.
In support of the appeal against sentence Mr Lithgow submitted that the appellant was unlucky to have been convicted and that, having been convicted, no minimum sentence is mandated by Parliament or by authority. He submitted that a sentence significantly below two years is available and appropriate.
In reply the Crown supported the sentence as a merciful one by reference to the facts.
It is correct, as Mr Lithgow submitted, that cases of attempted murder often involve the infliction of serious injuries whereas in the present case the complainant was uninjured physically. The victim impact statement makes it abundantly clear however that the incident had traumatic and lasting psychological effects.
The judgment of this Court in R v Unsworth CA151/89, judgment 18 October 1989 is helpful. That involved attempted murder in the aftermath of a broken relationship. It was more serious than the present case in that a loaded rifle was presented and in the course of a struggle shots were fired. The complainant was not hit, though the offender was. The complainant’s physical injuries as a result of the struggle were relatively superficial. The offender was suffering from a depressive illness and acted entirely out of character. The issue at the trial had been whether he really intended to kill. On a Solicitor-General’s appeal, the Court imposed a sentence of imprisonment for three years in addition to an order for reparation.
Recognising that no two cases are the same, we find on a comparison with the sentence in Unsworth it cannot be said that the sentence of two years six months in this case is manifestly excessive. The jury having found that there was an intention to kill, the offending must be regarded as serious. The appellant desisted. That is strongly mitigating. But the sentence imposed was well within the sentencing discretion of the Judge who had heard all the evidence.
The appeal against sentence also is dismissed.

Solicitors
Crown Law Office, Wellington

[2002] NZCA 320

17 December 2002