The Queen v Richard Wayne Gorrie

IN THE COURT OF APPEAL OF NEW ZEALAND

CA372/01

THE QUEEN

RICHARD WAYNE GORRIE

Hearing:	15 July 2002
Coram:	McGrath J Robertson J Gendall J
Appearances:	R J Stevens for the Appellant J C Pike for the Crown
Judgment:	8 August 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

The appellant was convicted, following trial by a jury, of the murder of his former partner (the deceased) who was the mother of his 3 year old son. It was common ground at his trial that he had killed her by stabbing her to death. The defence case was absence of murderous intent due to a dissociative state and, alternatively, provocation. He appeals against his conviction.
The appellant and the deceased had been in a relationship which had extended over 5 years during which they had broken up 5 or 6 times. They had separated, following their last breaking-up, about 3 months before the day on which the appellant killed the deceased by stabbing her to death in a park. At the time of her death the deceased had interim custody of their son D and there had been differences between them concerning the extent to which the appellant was to have access to D. Following an assault on her the deceased had also obtained a temporary protection order against the appellant which was in force at her death.
On 14 January 2001 the appellant drove to the Kaitoke Reserve at lunchtime. In a statement he later made to the police he said that his purpose was to meet a friend who was having a barbecue with his family after which some cricket would be played. There was some dispute at the trial whether the appellant knew of the cancellation of arrangements by the friend for the barbecue. There was, however, no evidence that the appellant knew his family would be picnicking in the park and the appellant denied he knew it. In any event while driving through the park the appellant encountered his son D who was with his mother and her current partner.
On hearing his son’s voice the appellant stopped his vehicle and sounded his horn. D ran up to the car. The appellant then saw the deceased who was sitting on a rug. He also saw her partner’s car which he recognised. The appellant told the police that he said to the deceased that he wanted D to come for a ride with him and that there was another family present in the park he would be with while they were together. The appellant said the deceased replied along the lines “he’s not going with a crazy person like you”. When he asked why the deceased was stopping him from seeing D the deceased replied, according to the appellant, that he “needed time to get his head sorted out”. She also said that she would be complaining to the police about the encounter they were having in light of the protection order in force. The appellant said he replied to the deceased that he did not care, all he wanted to do was to see his boy.
The appellant said in his statement that at this point while she was talking to the appellant the deceased was walking away holding D in her arms. She walked off to and stood by her partner’s car still holding D.
The appellant then took a knife from a console in his own car which he slipped into his pocket. He walked over to where the deceased was standing. An altercation then took place between the appellant and the deceased while she was standing with her back to the car. The appellant said, loudly, “Give me my boy”. He grabbed D’s arm and this led to D being tugged backward and forward. At one point during the confrontation the appellant reached into his pocket took out his knife, flicked it open in his hand, and showed it to her. In response to a question from the police as to why he did that the appellant said “to say I was taking my boy”. The deceased at this stage was standing with her back to the side door of the car.
A physical altercation followed in the course of which the deceased was stabbed by the appellant 31 times. He and the son were splattered by the blood from the injuries suffered by the deceased to her chest. The deceased later died. In his explanation to the police the following day he said that he “lost the plot” and “just snapped”. Later in the interview he said “his mind switched off” and “reality went blank”.
The appellant then took the child and fled the scene in his car. As he did so he made a further threat to a bystander indicating he was next. The appellant’s car was stopped by the police at Waikanae where D was retrieved. The appellant was taken into custody.
At his trial the issues raised by the appellant were provocation and lack of murderous intent due to the appellant’s dissociative state. It is unnecessary to go into the detail of the provocation defence as the ground of appeal originally advanced on that ground is no long being pursued. The possibility of dissociation put in issue proof of intent as a necessary ingredient of the charge of murder. The Crown’s position at the trial was that the acts of stabbing were done deliberately, and that an inference should be drawn that the appellant either intended to cause death, or knew that his acts were likely to do so and was reckless as to whether or not death would eventuate. The defence on the other hand argued there was a reasonable possibility the appellant was in a dissociative state on account of which, at the time he inflicted the blows, he was incapable of having the requisite murderous intent.
The Judge having given a standard direction on the mental ingredients of the crime put the issue to the jury in this way:
The accused says, this again is this question of whether he was, as a reasonable possibility, that the accused was in a dissociative state. As a result he may not have been able to have in his mind a conscious appreciation of risk of death. Clearly again that is relevant to the question, did the Crown prove beyond reasonable doubt the accused did have the conscious appreciation of risk of death.
A psychologist called by the defence in his evidence had described a dissociative state as:
…where there is a disruption of the usually integrated functions of consciousness, memory, identity or perception of the environment. Usually those 4 functions are connected psychologically when an individual dissociates, one or more of those functions loses its connection with the others. A state of dissociation can have a gradual onset it may be sudden it can be brief and it can be enduring.
Dissociation is sometimes also described as a state in which an individual’s thinking component, including judgment and ability to know what one is doing, splits from a person’s physical body. As a result decisions are not made consciously and partial or complete memory loss often accompanies dissociation.
The psychologist gave evidence of his opinion that the appellant may have been in a dissociative state at the time of the killing. He had interviewed the appellant and read evidence given by the appellant and his sister about beatings received by the appellant as a child from his father. In the opinion of the witness what was described to him would have been sufficient for the appellant to have developed entry into a dissociative state as a psychological defence mechanism in situations painful to him. Thereafter experience of situations which were painful psychologically could result in his automatically going into a dissociative state splitting off his normal sensory functions. This was seen by the psychologist as supported by passages in the appellant’s evidence in which he described being numb as if he was not there in altercations as a young adult and later being unaware of what had happened.
The psychiatrist said that in his opinion it was possible the appellant had been in a dissociative state at the time he killed the deceased. The psychiatrist also considered the evidence of the appellant’s actions was consistent with the appellant being in such a state on the day the deceased was killed. He was observed by witnesses to be calm, with no signs of anger, at the time he was undertaking a frenzied attack on the deceased. Similarly the appellant’s failure to register calls to him to stop indicated the appellant had switched off from sensory perception. It was submitted that the difficulty the appellant had in remembering what had happened in the park appeared to be the result of dissociative amnesia.
The psychologist’s conclusion was that it was distinctly possible the appellant was dissociative at the time leading up to the homicide and for a time after. Depending on the timing this could have impacted on his capacity to form murderous intent. He also gave evidence in relation to the defence of provocation which, as already indicated we need not discuss. Both defences were rejected by the jury which convicted the appellant of murder.
In the notice of appeal the first ground of appeal advanced was misdirection of the jury on provocation. However in his written submissions Mr R J Stevens, who appeared for the appellant before us, accepted that the direction of the Judge was in terms of R v Rongonui [2000] 2 NZLR 385 and this ground was abandoned. The Court had prior to the hearing of the appeal indicated it was not prepared to convene a Full Court to revisit the principles of the law of provocation stated in that decision.
Turning to the other issue we first address the grounds of appeal advanced in Mr Stevens’ written submissions in support of the appeal. He said that the Crown’s response to the dissociation argument was to attack the credibility of the accused in relation to whether the events in his upbringing on which the defence contention of dissociation was founded ever occurred. In those circumstances, Mr Stevens said a direction was required that if they rejected the appellant’s evidence they still needed to go on to consider the rest of the evidence to decide if his guilt had been proved. This included evidence of the appellant’s sister and eyewitnesses to the events which was also relied on to support this proposition.
Mr Stevens also pointed out that the Judge had reminded the jury that the psychologist had indicated what evidence he relied on in concluding Mr Gorrie might have been in a state of dissociation and said that it was for the jury to decide if the evidence concerned was reliable and credible. The Judge had added that unless it was held to be credible Mr Shirley’s evidence would not be worth much. Mr Stevens was critical of the failure by the Judge in that context to identify for the jury the particular evidence on which Mr Shirley had relied so as to make plain that there was evidence of dissociation other than that of the appellant himself. There was a risk, he argued, that the jury may have concluded the dissociation defence theory failed simply because the accused’s own evidence was not accepted.
Mr Stevens went on to say that there not an adequate direction to the jury as to the nature of the psychological condition of dissociation which Mr Shirley had explained. This lack of definition, he said, had also undermined the defence case.
When the whole of the evidence concerning the appellant’s life as a child is considered we do not consider that there is justification for the contention that the case required a lies direction. While during the course of cross-examination of the appellant the prosecutor put to him that he was not beaten by his father as a child and that his parents had not separated as the cross-examination proceeded it is clear that the appellant’s overall evidence on these matters was not challenged as a total invention as opposed to exaggeration of its extent and impact. When his sister gave evidence confirming that the appellant had been beaten by his father she was not cross-examined at all on the matter. The appellant’s credibility in these respects was a peripheral issue.
In directing the jury His Honour said:
Now you have heard from the psychologist what evidence he accepted in deciding Mr Gorrie may have been in this state. It is for you of course to decide if this evidence he relied upon is credible and reliable. If you do not accept the evidence he relied upon as either credible or reliable then the psychologist’s evidence on this aspect is not going to be worth much in terms of your conclusions because of course his conclusion turns on an acceptance of the evidence here that forms the basis, if you like, of his diagnosis. But if you accept the evidence he relied upon and accept the accused might reasonably have been in a dissociative state then clearly that is highly relevant evidence as to whether you are satisfied beyond reasonable doubt the accused had the necessary intent or was able to appreciate the risk of what he was doing. Keep in mind even if it is a reasonable possibility that the accused was in the dissociative state you must still consider whether it is a reasonable possibility that when he was in this state he was unaware of what he was doing and what he was thinking, such that he had either no intent or no awareness of risk of death by what he did. So if that is a reasonable possibility keep in mind, of course, the time we are concerned about is at the time of the killing.

and later added:

To summarise this bit of the summing up. The accused accepts he stabbed the deceased and caused her death. The issue is have the Crown proved beyond reasonable doubt that it is murder. For it to be murder the Crown have to prove either an intention to kill, a deliberate murder in that sense, or that the accused appreciated death likely as a consequence of his stabbing but he took the risk all the same. If the Crown cannot prove either of these intents, then the accused will not be guilty of murder but guilty of manslaughter.

The Judge then went on to tell the jury they should consider the evidence of dissociative state and whether they accepted the facts on which the psychologist made his diagnosis. If it were a reasonable possibility that the appellant was in that state and that he could not form the necessary intent, or appreciate the likely cause of death or was reckless as to whether it ensued the Crown would not have proved its case beyond reasonable doubt. He later added that the defence did not accept that the appellant meant to cause the deceased any bodily injury it being reasonably possible his capacity to intend was impaired by a dissociative state he was in.
We are satisfied that the dissociation thesis was very fairly put to the jury by the Judge. The condition is not of the complexity that a special direction was required in relation to what the psychologist said about it. The condition he had described, in certain manifestations, affects most adults in their daily lives and the psychologist instanced experiences during driving. His description of the more pronounced form would have been readily understood by the jury without further assistance. The Judge was careful to explain to the jury that if they accepted the appellant might reasonably have been in a highly dissociated state that was highly relevant to the issue of intent and appreciation of the risk of what he was doing.
The contention of dissociation as a result of which the appellant did not have the necessary intention or appreciation of the risks of his actions was difficult to run for many reasons, not the least of which was the ready availability of the appellant’s knife in his vehicle and the appellant’s admission to producing it shortly before the altercation in order to pressure the deceased into letting their son go with the appellant. There was also evidence that he had subsequently suggested to witnesses he might do to them the same as he had to the deceased. To that point and extent there was evidence of an awareness of what he was doing supporting the prima facie inference that a conscious intention was present when he acted as he did. It was not surprising that in those circumstances that the argument of absence of intent due to being in a dissociative state was rejected. We see no real risk in this case that the jury in rejecting such an approach misunderstood the nature of the case or the basis of it. This ground of appeal is accordingly rejected.
We permitted Mr Stevens to advance a further ground of appeal at the hearing which had not been included in his written submissions. In his written submissions he argued that, although automatism was not raised as a defence by the appellant’s counsel at the trial, it was available on the evidence and should have been put as such to the jury by the trial Judge on his own initiative.
In the normal course, that is had no question of mental abnormality arisen, the mental elements of the crime of murder including the necessary mens rea would be inferred from conduct of the kind admitted by the appellant in this case. Mr Stevens contention here is that the circumstances created a reasonable prospect that the appellant was suffering from a temporary mental aberration at the time he killed the deceased, due to a factor, external to his mind, which impacted on his rational mental state. The death of the deceased, he said, was as a result to be attributed to an unconscious involuntary action making available the defence of sane automatism
The very experienced counsel who led Mr Stevens at the trial did not advance the defence on that basis preferring to put it on the basis that the killing was an involuntary act at a time when the appellant’s mind was dissociated during which he lacked the necessary intent to commit murder. The alternative was provocation. The effect of upholding Mr Steven’s submission would be a finding by this Court that the Judge should have overridden the considered judgment of defence counsel as to the most favourable basis on which the mental abnormality defence should have been put to the jury.
In Police v Bannin [1991] 2 NZLR 237, 242 Fisher J said of the law relating to mental disorder and automatism:
If the requisite mental elements would otherwise be inferred, the next question will be whether there is independently verified evidence which would call into question the accused’s capacity to satisfy those mental elements. A feigned blackout or amnesia is the first refuge of the guilty. The topic calls for expert guidance. Consequently, the Courts will normally require some form of independent verification of mental abnormality before the allegation will be taken seriously.
No medical evidence was called at trial which would provide a foundation for the defence now advanced. We do not regard the psychologist as doing so in his evidence concerning dissociation. He stayed within the limits of his discipline. If relevant medical evidence had been available, the Court would have had to direct the jury to consider whether the abnormality was a disease of the mind. If it was and they were otherwise satisfied on the balance of probabilities that he was insane, then they could have found him not guilty by reason of insanity and the Court would then have been required to make an order detaining him as a special patient under the provisions of the Criminal Justice Act 1985. Counsel at the trial apparently wished to avoid the risk of entering that territory and instead succeeded in putting the defence in the way he did without interference or adverse comment from the Judge.
The trial Judge was not required to address the subtleties that can arise with regard to sane and insane automatism because there was no evidential basis for them to be an issue in the case. The defence had confined the way in which it had introduced the subject at all. This was not one of those exceptional cases where a Judge is required to sum up on an issue which arises on the evidence even although it has not been raised by the defence because there was in fact no evidential foundation for the argument and perspective which for the first time was raised in this Court. For all of these reasons, there was no occasion for the Court to do more and the Judge cannot be criticised for the approach he took.

It follows that the appeal against conviction must be dismissed.

Solicitors
Fanselows, Wellington, for Appellant

Crown Law Office, Wellington, for Crown

[2002] NZCA 193

8 August 2002