The Queen v Rogers
[2009] NZCA 387
•3 September 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA207/2009
[2009] NZCA 387THE QUEEN
v
COLIN WILLIAM ROGERS
Hearing:28 July 2009
Court:Baragwanath, Hugh Williams and Winkelmann JJ
Counsel:H D M Lawry for Applicant
M A Woolford for Crown
Judgment:3 September 2009 at 2.30pm
JUDGMENT OF THE COURT
THE APPLICATION FOR EXTENSION OF TIME TO APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents
Para No
FACTUAL CONTEXT [3]
PROVOCATION [7]
THE AUTHORITIES [8]
THE STATEMENT [19]
DISCUSSION [28]
INTOXICATION [40]
CUMULATIVE EFFECT OF UNSATISFACTORY EVENTS [47]
“HE WENT INSIDE” [48]Intervention from gallery [51]
Glue sniffing [52]
Applicant’s pulling a knife from a sock and using it to chase
Ms Tahana [54]
Inattentive juror [58]
APPENDIX
[1] The applicant Colin William Rogers was convicted and on 8 April 2008 sentenced to life imprisonment with a minimum non parole period of 11 years for the murder of his de facto partner Angela Rangi Hauta Tahana. A year later, on 17 April 2009, he filed application for leave to appeal against conviction out of time.
[2] The arguments advanced for the applicant were:
(a)The trial Judge, Priestley J, failed adequately to direct the jury on the topic of intoxication;
(b)The Judge erred in failing to leave the partial defence of provocation to the jury;
(c)There was a miscarriage of justice because of the cumulative effect of events because:
(i)a Crown witness referred to the applicant’s “going inside” and so alluding to his having been in prison;
(ii)during the trial a member of the family of the deceased began to scream and was removed from the public gallery;
(iii)a witness said the applicant was sniffing glue;
(iv)evidence was given of the applicant’s pulling from his sock a knife which, was not the murder weapon, and chasing the deceased at a stage shortly prior to the killing;
(v)a member of the jury fell asleep for what counsel for the applicant said he was instructed was approximately 20 minutes.
A further point, that during the playing of the police interview a juror complained that the sound could not be heard, was abandoned.
Factual context
[3] Ms Tahana was 34 years old and the applicant almost the same age. They had been living together for some three weeks. The death occurred in Ms Tahana’s house at Mangere where she had been drinking. The applicant arrived and was followed by other family members. In his sentencing remarks, the Judge found that a considerable volume of alcohol had been consumed by both Ms Tahana and Mr Schutt (referred to as “Eddie” or “Steads”). The applicant had a recording of 39 milligrams of alcohol per 100 millilitres of blood when a sample was taken some nine hours after Ms Tahana’s death. It was unclear what the applicant’s alcohol level would have been at the time of the killing.
[4] The applicant’s police statement contains passages bearing on both intoxication and provocation. “Pete” is Mr Moetara. Both he and Eddie suffer from mild intellectual disability; “Muldoon” is Ms Tahana’s sister.
[5] As to intoxication, the police officer’s note of the interview with the applicant recorded:
QOkay, so what happened, when did you start drinking or, or what did you do that afternoon?
A Oh, um, not quite sure.
Q Before dinner or after dinner?
AYeah, it would have been about, might have been about 3 somewhere around there, 4, 3
…
AHe, [Eddie] he had money on him and then ah, he came back and then after that ah we were drinking and then him and my girlfriend Ange went up to get some, ah another box and ah cask of wine.
QDoes that mean you finished off the box that he got the first time?
AYeah, we were just drinking, yeah.
QSo between the, how many people drinking? [Pete] doesn’t drink so there’s you and Ange
AAnd [Eddie]
QAnd [Eddie]
AYeah
…
[6] The statement then turned to matters relevant to the provocation ground. We have reproduced in the Appendix significant passages which we have italicised and numbered.
Provocation
[7] Defence counsel at trial did not raise the partial defence of provocation, which was inconsistent with the defence argument that the applicant had not killed Ms Tahana. Nor did defence counsel see the Judge in chambers and invite him to leave provocation to the jury as was done in respect of intoxication.
The authorities
[8] It is the obligation of the Judge to leave a defence to the jury if there is a sufficient credible narrative to justify that course: R v Kerr [1976] 1 NZLR 335 (CA); R v Tavete [1988] 1 NZLR 428 (CA); Lee Chun-Chuen v R [1963] AC 220 (PC).
[9] The Crimes Act 1961 states:
169 Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who caused the death did so under provocation.
(2) Anything done or said may be provocation if—
(a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and
(b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide.
(3) Whether there is any evidence of provocation is a question of law.
(4) Whether, if there is evidence of provocation, the provocation was sufficient as aforesaid, and whether it did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide, are questions of fact.
[10] The leading authority is R v Nepia [1983] NZLR 754 at 756 (CA) which directs:
In deciding whether there is sufficient evidence to raise provocation as an issue — which evidence may of course be found in either the prosecution evidence or the defence evidence or a combination of both — the Judge has to consider first whether the evidence is reasonably capable of leading a jury to find it reasonably possible that (a) is satisfied: that is to say, that in the circumstances of the case what was done or said was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control. If he decides that in favour of the accused, the Judge then has to consider whether the evidence is reasonably capable of leading a jury to find it reasonably possible that (b) is satisfied: that is to say, that what was done or said did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide. If he answers the second question also in favour of the accused, the Judge must then leave the whole issue to the jury.
[11] The Court stated at 756:
There are cases in which a trial Judge has to take the responsibility of ruling that the ordinary person test cannot be satisfied on the evidence. R v Tai [1976] 1 NZLR 102, which the Judge here cited, was held to be such a case. A trial Judge can have a difficult and delicate task in deciding what should properly be left to the jury. Not much guidance on it can be given in general terms. We add only that provocation is not lightly to be taken away from them: compare R v Taaka[1982] 2 NZLR 198.
[12] “Provocation is not lightly to be taken away”, like all statements in a judgment, is to be read in context. In Nepia the accused had stabbed his wife, from whom he was separated, some 14 times. His evidence was that the stabbing had occurred during a row over access to their two children, after the wife had told him that he would not see the children again and that the car she was driving belonged to the man with whom she was now living. The Court quashed the appellant’s conviction for murder and ordered a retrial, holding that provocation should have been left to the jury.
[13] A quarter of a century later Priestley J gave some contemporary context when sentencing the applicant (at [21]):
I give some slight weight to the fact that your victim was drunk and was being verbally abusive to you. It was sensible of your counsel not even to raise at trial provocation (impossible so to do in a situation where the apparent defence was the homicide was possibly committed by somebody else). But the days are long past, Mr Rogers, where verbal abuse by a female can be given serious weight as a mitigating factor in a violent assault by a male. It has but slight weight here and I agree with [Crown counsel’s] submissions in that regard.
[14] While attitudes towards the proper treatment of women may have evolved in the present generation, a similar standard was set by this Court thirty years ago in R v Tai [1976] 1 NZLR 102. There the appellant had formed a domestic relationship with a young woman. He learned that she had become friendly with another man and believed that his own association with her was coming to an end. He had gone with her to a cousin’s house but was not allowed to sleep with her. He continued in attempts to contact her and eventually met her on a social occasion. He asked her to go into a room with him where they could talk. She declined his request. He began swearing at her, struck her hard in the face with his fist and kept on striking her. He then produced a knife and stabbed her many times causing her death.
[15] This Court accepted that the appellant had gone to the house filled with unhappiness and determined to do away with her and himself if he could not persuade her to resume their former relationship. It considered that the jury might view the case as one where the woman’s unwillingness to discuss the situation with the appellant might, against the whole background of events, “cause slumbering fires to burst suddenly into flame”. The Court stated:
That, however, is not enough, because we must come back to the question whether, against that same whole background of events, the attitude or conduct of the girl at Colombo Street could be regarded by a reasonable jury as sufficient to deprive a person, having the power of self-control of an ordinary person, of that power of self-control and make him act as the appellant did. In our opinion the girl’s attitude and conduct could not be so regarded.
[16] Cases on the other side of the line are R v Taaka [1982] 2 NZLR 198 (CA) and R v Pita (1989) 4 CRNZ 660 (CA). Each is distinguishable. In Taaka the provocation ground was belief, supported by psychiatric evidence, was that the victim had been trying to rape the appellant’s wife.
[17] In R v Pita the appellant raised a defence of self-defence against an alleged drug fuelled threatened attack upon her. This Court held that the defence of self-defence and the partial defence of provocation were not necessarily mutually exclusive and that provocation as well as self-defence should have been left to the jury.
[18] It is settled that provocation may derive from a person other than the victim: R v Turaki [2005] 3 NZLR 329 (CA).
The statement
[19] The lengthy statement on which the applicant bases his provocation contention began with his saying that Eddie had been “telling” him what to do and the others “didn’t like that”. Thereafter he recounted the ten stages which we have numbered in the Appendix.
[20] In the first he complained that Ms Tahana had just started on him because Eddie was talking to her, and she was telling the applicant emphatically to be quiet. The applicant’s response (at (2)) was to leave and telephone a friend. There was then an account of Ms Tahana’s habit when drinking to slap and punch the applicant. At (3), he said she slapped him in the face and kept doing so which discomforted him because of a broken tooth and some head condition. She slapped him three or four different times. He thought that she was caring more for Eddie than for him. Following some historical discussion he said “Oh we’ll talk things out”. Everything was “good”.
[21] At (4) the applicant recorded Muldoon’s arrival. Muldoon said she didn’t like Eddie, who wanted to move to where the applicant and Ms Tahana were staying. Ms Tahana said “Wait till the morning until I am sober before you ask me that”, because she might agree and then wake up and wonder what was Eddie doing there.
[22] At (5) Eddie said to the applicant “I’ll punch your head in … I’ll step you out and stuff like that”.
[23] At (6) Ms Tahana told the applicant to take off his red jersey. He asked what was wrong with it, and she repeated she wanted him to take it off. Muldoon told Ms Tahana to “Leave him alone … picking on him” because he was doing nothing wrong to her. Muldoon said Ms Tahana should let the applicant wear whatever he wanted to as if she were supporting him. Ms Tahana kept pulling the applicant’s jersey and trying to rip it off. The applicant indicated that she and Eddie were both picking on him; he was “pretty angry”, and that Ms Tahana was getting violent with him, angry with Eddie, and arguing with Muldoon. The applicant said that Ms Tahana was shouting and screaming, swearing at him to be quiet and pushing him. He said that he did nothing but kept moving his seat away and pushed her away when she tried to slap him in the face because of the condition of his teeth and head. She kept “banging [the applicant] in the head” and he kept trying to push her back.
[24] There followed at (7) an argument between Ms Tahana and Eddie in which they alluded to the applicant’s gang affiliation. He told them to stop it. Ms Tahana then said she would get her brother saying “They’ll come down here and they will smash your head in”. The applicant said “She starts nutting out and swearing at me and yeah punches me or slaps me in the face and stuff like that”. He referred to an earlier occasion where she had slapped him in the face and punched him in the jaw. The drinking continued and everyone became more intoxicated.
[25] At (8) the applicant said that Muldoon was “good to [him]”, and was reading his ACC papers. Ms Tahana then picked up the papers and threw them on the ground. Muldoon asked Ms Tahana what she did that for, and said to the applicant “makes you feel … pretty bad when your girlfriend does that eh, doesn’t care about your business”. The applicant replied “Nah”, saying “When she’s sober she is real good … but once the alcohol is involved and it’s a different story”.
[26] At (9) the statement turned to the final phase. Asked why Muldoon took the children and left, the applicant said “Bit of a hurry by the sound of it … Yeah, na oh everybody was arguing, just got too carried away … must have thought things were getting out of hand”. He then described Ms Tahana going into the toilet, and despite some gross language on her part, an episode where the applicant and Ms Tahana hugged each other and kissed, and they both walked out, everything being all right (at (10)).
[27] But after they had sat down in the garage drinking, the argument started up again. The officer put to the applicant that the arguments had got out of hand and the applicant had pulled out his knife. He denied having a knife. It was put to him that Eddie and Pete had both left the address after he had got the knife and he said he was going to kill everyone because he was sick of all the arguing and abuse. That was denied by the applicant.
Discussion
[28] The question is whether there is a credible narrative of facts which, if accepted by the jury, could constitute the partial defence of provocation: [9] above.
[29] Difficulty has been experienced in each jurisdiction regarding the provocation partial defence. It is necessary to square the circle of how the power of self control can be lost by a person having the power of self control of an ordinary person, who elsewhere in the law is required in dealings with others to act reasonably. But since whether there is any evidence of provocation is a question of law (s 167(3)), it is an abdication of function for a Judge to fail to determine it and simply allow the case to go to the jury with a copy of s 169.
[30] At first instance in R v Tuese (on appeal CA503/04 14 June 2005) Baragwanath J declined to leave provocation to the jury for the reasons reproduced in the judgment of this Court at [12]:
[9] In the cases counsel have cited, and in the discussions I have had the opportunity to read, the Courts have not to date admitted the partial defence for the juries’ consideration in the circumstances of a short term casual encounter of the present kind. The cases generally have to do with family relationships and other circumstances where there is a welled up angst on the part of the offender. That is not to say that an isolated incident cannot qualify. Bedder’s case [1954] 1 WLR 1119 (HL) is the classic example of the opposite. Here, however, the defence disclaim any element of distinctive characteristics which were the focus of that case.
[10] It is ultimately for the Judges of this Court and the appellate courts to set the standards of what is “the power of self-control of an ordinary person”. The passage in the evidence relied upon is:
Can you tell us what happened next as you were walking in front of the bus shelters? … I was walking past to the bust stop and I saw that man sitting inside the bus stop. When I start walking and I heard – I hear something from her say to me “Bro can I have some smoke?” and I turn around and ask “I got nothing.” And he asked me again “Give me some fucking smoke” I turn around I ask him again “I got nothing.” After when I say I got nothing and I saw that man stand up walk to me and he say to me “If you not give me a smoke I kill you.” And I said “I got nothing.” After when I say that and he punched me.
Where did the punch hit you? .… At the front of the bus stop.
Where on your body did the punch hit you? …. On this side (witness refers to the left side of his fact). [sic]
Did that man say anything else when he hit you? …. No just only stand and watching me I was fall down on the grass.
[11] The circumstances included the fact that Mr Tua had the equivalent of a breath alcohol reading of 297 compared with the 80 stipulated by the Land Transport Act. The fact of Mr Tua’s being heavily drunk must have been wholly apparent to Mr Tuese even though he too had consumed a good deal of alcohol, the effects of which were evident upon him when he presented for work the following morning.
[12] For a Court to conclude that to respond to foul language and a single punch by losing control such as, on the Crown’s case, to beat in Mr Tua’s skull with a rock, break a bottle across his head with all possible force and repeatedly strike the bloodied area of his head would be inconsistent with the standards of the ordinary New Zealander to whom the judiciary are ultimately accountable.
[13] I am not prepared to find that the ordinary person’s power of self-control would be lost in such circumstances from which it follows that the defence were right in electing not to address on provocation.
[31] This Court’s evaluation was as follows:
[13] If there was “a plausible narrative of causative provocation” which could reasonably have resulted in a successful defence of provocation, the Judge was required to leave the defence to the jury, see the decision of this Court in R v Matoka [1987] 1 NZLR 340 at 344.
[It reproduced s 169 ([9] above)].
[15] Baragwanath J focused on the objective component of the provocation test provided for under s 169(2)(a). The focus of this inquiry must be on the actual acts of the defendant. If the jury concludes that a defendant would not have killed the deceased, if he or she had exercised ordinary powers of self-control, the defence must be rejected, see R v Nepia [1983] NZLR 754 at 756. If the Judge concludes that a jury acting reasonably would have to reject the defence on this ground, it is open to the Judge, acting under s 169(3), to withdraw the defence.
[16] The issue for the Judge was one of evaluation. There is a limit to what can usefully be said. It is sufficient to say that we see the situation in the same way as the Judge did - that it is self-evident that the appellant would not have killed the deceased had he exercised ordinary self-control. That being so, the Judge was right not to leave provocation as a defence to the jury.
[32] We have no doubt that the conduct of both Eddie and Ms Tahana fell within the text of the Oxford English Dictionary’s definition of provocation, variously described as “A cause of irritation, anger or resentment”; “Action or speech … likely to incite (especially physical) retaliation; the action of provoking or inciting anger, resentment or irritation, especially deliberately; that provokes strong emotion.” That is not, however, enough to satisfy the section. The Judge’s evaluation must factor in the element whether:
In the circumstances of the case [the provocation] was sufficient to deprive a person having the power of self control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self control.
[33] Self-induced intoxication is irrelevant to the test of s 169(2)(a), albeit relevant under (b), if provocation is left to the jury: R v Anderson [1965] NZLR 29 at 36 and 39 (CA). Self-induced intoxication is not an “available characteristic” within the meaning of subs (2)(ii)(a): R v McGregor [1962] NZLR 1069 at 1081 (CA). So the question is whether the conduct of Eddie and Ms Tahana taken together were, in the circumstances, capable of depriving an ordinary person of power of self control.
[34] It is disagreeable to have a partner sticking up for a third party in an argument. It is also disagreeable to receive slaps and punches on the face, especially if one has had dental and head injuries of which the assailant is aware. But where such conduct is part of an essentially loving relationship, manifested a short time before the fatal stabbing by embraces and kissing, it is preposterous to suggest that an ordinary person might take a knife and murder the victim with it.
[35] It cannot be overstated that provocation is a special defence which was introduced at a time of capital punishment to mitigate the sentencing consequences of a killing that possesses the physical and mental elements of murder. These elements are either deliberately causing the death of the victim or meaning to cause the victim bodily injury which the offender knows to be likely to cause death and is reckless whether death ensues or not: [40] below (s 167(2)(a) and (b)).
[36] Since Parliament has not directed the judiciary more specifically upon the question of law expressed in general terms the words of s 169(1)(a), it ultimately is the task of the appellate courts to determine whether a case falls under or over the line. As a divisional court, we do not offer any precise formulation of the test. It is sufficient to state, as did the Judge, that nowadays merely abusive words and even an attack of the kind described in this case cannot get near the threshold. The applicant knew that Ms Tahana loved him, as she had demonstrated so soon before, and that when she returned to sobriety all would be well. He was not at risk from her in any significant way; her blows, while no doubt painful and containing an element of indignity, would have received from the ordinary person a response no more than whatever was necessary for self-defence.
[37] By s 6 of the Interpretation Act 1999 an enactment applies to circumstances as they arise. Inherent in that is that the court’s answer to the question of law posed by s 169(2)(a) must be made in the light of today’s social conditions and not those of a previous era. Underlying the improvement in attitudes towards women and children in society is the recognition that their dignity and rights are to be accorded high value. That is not to be sacrificed by a judicial application of s 169(2)(a) which reads up a justification of someone who considers himself provoked.
[38] It is unsurprising that it did not occur to defence counsel to suggest to the Judge in chambers that he should direct the jury as to provocation as counsel did in relation to intoxication.
[39] The experienced Judge, who would no doubt have reflected on whether provocation should be left, rejected the easy but wrong course of doing so. The provocation ground fails.
Intoxication
[40] We found it unnecessary to call on Mr Woolford in relation to this and the other grounds of appeal. The Judge’s summing up in relation to drunkenness was in the following terms:
[44] Next I want to say something about drunkenness. The evidence you have heard about the events in the afternoon and evening of 11 April was that there was some heavy drinking going on in the garage of Angela Tahana’s home. You have heard evidence of alcohol being bought and consumed. You know from the admitted facts that the deceased had a high blood alcohol level. There is evidence that Mr Schutt was heavily intoxicated. The accused himself said in interview that he had been drinking. There was still alcohol in his blood stream nine hours after the event, but we do not know how much alcohol he had consumed.
[45] Alcohol, as many of you will know from your own experience and observations, affects people. There can be loss of control. Behaviour changes. It disinhibits. So people may do things when intoxicated that they would not do when sober. But intoxication is not a defence by itself. The law still holds people responsible for their intentional acts, even if they are drunk at the time. A drunken intent or a drunken state of knowledge still amount to an intent or knowledge so far as the law is concerned.
[46] However, drunkenness may be relevant to the state of mind of the accused and in particular to his state of mind so far as murder is concerned. The Crown must prove beyond reasonable doubt that the accused meant to kill Angela Tahana or that he meant to cause her bodily injury and was reckless whether death ensued or not. The Crown, as I have told you, is inviting you to infer from all the evidence you have heard that the accused had murderous intent.
[47] Now because alcohol can cloud people’s judgment, something which might be obvious to you and me when we are sober might not be seen the same way when we are drunk. So, as I have already indicated to you, to obtain a conviction on this murder charge the Crown must satisfy you beyond reasonable doubt that the accused had murderous intent. When considering that, you must allow for the effect on the accused, if any, of the alcohol he had consumed, and in particular its impact on whether you can safely infer that he had murderous intent at the time he stabbed Angela Tahana (assuming of course that you are sure he did stab her). Does the evidence satisfy you that the accused’s ability (1) to intend to kill Angela, (2) or to have knowledge that he was likely to cause her death, or (3) that he was reckless were present and were not absent as a result of intoxication.
[48] I stress to you that Mr Tait’s defence is not one that the accused was so drunk that he did not have murderous intent. Rather the defence is that the Crown has not proved beyond reasonable doubt that it was the accused who stabbed Angela.
[49] Nonetheless, if you get to the stage in your deliberations, as you may do, of having to decide whether the accused had murderous intent, the relevance of intoxication will have to be weighed up by you. That is all, you must weigh it up. You must not speculate on this issue. But you must weigh up intoxication, if it is relevant, solely on the basis of the evidence you have heard about the drinking in the garage by various people that day.
At [47] of the summing up we have added italics and inserted numbers.
[41] We have referred to the elements of murder which are defined by the Crimes Act:
167 Murder defined
Culpable homicide is murder in each of the following cases:
(a) If the offender means to cause the death of the person killed:
(b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
…
[42] Mr Lawry cited the leading decision R v Kamipeli [1975] 2 NZLR 610 at 616 (CA), which determined that the prosecution must prove all elements in the definition of an offence including any mental elements. While drunkenness is not a defence of itself, it is potentially relevant as evidence bearing upon whether the Crown has proved the accused possessed the relevant intent. Here the intents in question were under (a), intent to cause death, and under (b), intent to cause bodily injury likely to cause death. Intoxication bears on the knowledge of likelihood and also the topic of recklessness.
[43] Counsel cited as well R v Tukaki CA360/05 14 June 2006, where these matters were discussed and the jury’s verdict was set aside for inadequacy of direction. He also cited R v Dixon [2008] 2 NZLR 617 (CA), where the summing up erred in restricting the relevance of intoxication to intent. The jury needed assistance on how it could bear on the elements of s 167(b). He submitted that, while the direction at the end of [47] covered the bases of relevance of intoxication to 167(a) (intent to kill) and, in respect of (b) those of knowledge of likelihood of causing death and recklessness whether death ensued or not, he did not direct specifically as to the relevance of intoxication to meaning to cause bodily injury.
[44] We agree that there was an oversight in that respect. But the summing up is to be read in context. The jury had before them the list of issues which included the question:
[3] Was the homicide accompanied by murderous intent?………Yes/No
The Crown relies on two possible types of murderous intent here (s 167(a) and (b)).
[a] The accused meant to cause Angela Tahana’s death.
or,
[b] The accused meant to cause Angela Tahana a bodily injury which he knew was likely to cause death and was reckless whether death ensued (resulted) or not.
(See note below for “bodily injury”)
The Crown must prove murderous intent beyond reasonable doubt (make you sure).
If your answer to this question is Yes then your verdict must be guilty.
If your answer to the question is No your verdict must be not guilty of murder but guilty of manslaughter.
(NB: Manslaughter is a culpable homicide which lacks murderous intent.)
Additional Notes
· You must be sure that one of the two possible types of murderous intent has been provided. You may all agree that (a) has been proved or some of you may agree that (a) has been proved and others (b). The important point is you must all agree murderous intent has been proved beyond reasonable doubt.
· “Bodily injury” means an injury or harm to the body which is more than trifling or transitory.
· “Reckless” in s 167(b) means being prepared to run the risk that death would result.
[45] Having had explained to them the relevance of intoxication to intention to kill, to knowledge of likelihood of causing death and to recklessness whether death ensures, it is unreasonable to suggest that the jury would not understand the direction as applying also to the topic of knowledge of likelihood to cause death.
[46] Parliament has directed this court by s 385 of the Crimes Act that it must dismiss an appeal if no substantial miscarriage of justice actually occurred. Here in relation to this ground there was none.
Cumulative effect of unsatisfactory events
[47] There were five challenged events.
“He went inside”
[48] The first is that Ms Tahana’s sister (not Muldoon) was asked during her evidence in chief: “From your knowledge of visiting Angela how long had [the applicant] been at the address?”. She replied “A couple of months actually, a couple of months and then he went inside”.
[49] The point was noted by the Judge, whose minute made shortly afterwards in the absence of the jury recorded that fortunately the theme had not been developed. The Judge read the passage as being open to the interpretation of being a reference to the applicant’s arrest. He doubted whether the comment should have been explained to the jury given, first, its ambiguity, and secondly, that drawing attention to it would give heightened significance. He invited counsel to reflect on the situation overnight and said that if the defence team did not raise the point in the morning he would proceed on the basis that no further action was required. Nothing further was said.
[50] The point not having been investigated it is not apparent whether the reference was to anything more than the applicant’s arrest on the murder charge which occurred following his interview the day after the homicide. A “couple of months” may well have been understood as the relatively brief period of the parties’ relationship. We do not regard the point as significant.
Intervention from gallery
[51] The second event was that during the evidence of Mr Schutt (Eddie) there was a sudden and very angry intervention from a person in the public gallery. The person started to yell and scream while three or four metres from the jury, was ejected and was not allowed back in the public gallery. At the conclusion of the brief re-examination the jury retired. The Judge made appropriate enquiries and dealt satisfactorily with the matter. While regrettable, it is by no means uncommon for vulnerable persons to find the tensions of a trial more difficult than they can manage. This was no doubt such a case. There is no reason to consider that the combined maturity of the jury would not have been able to see the episode in context.
Glue sniffing
[52] Also during the evidence in chief of Mr Schutt, Crown counsel led his evidence as to what had happened. He said “Angela just asked me why I hadn’t been around and I said because of Colin”. Asked “She goes why”. He replied “I said I didn’t know he sniffs glue”. The questioning continued:
Q What happened then?
A Then she goes Oh we will talk about it in the morning and then she goes you had better not sniff in front of the kids.
Q Who did she say that to?
A To Colin.
[53] As the Crown acknowledged, suggesting that the applicant sniffed glue had some prejudicial potential. Counsel for the applicant submitted that the jury would understand that he did so when there were young children about which must have had a detrimental effect on the jury. We accept the Crown’s submission that the evidence did not indicate that he had sniffed glue in the presence of children. This episode, while regrettable, is neither by itself nor in combination with the other points to which objection was taken sufficient to upset the essential robust process of trial before members of the community with a clear understanding both of human frailties and the dictates of unfairness.
Applicant’s pulling a knife from a sock and using it to chase Ms Tahana
[54] The third event was in the evidence of Mr Moetera (Pete) where he described calming Ms Tahana. Asked what happened he said:
A And then saw Colin with a knife in his sock.
Q What happened?
A Colin said he was going to kill AngelaQ What happened then?
A And then Colin was running after Angela into the house with the knife in his hand.Q Was he saying anything?
A Colin said that he was going to kill Angela and he said he was going to kill me and Steads [Eddie].
[55] The knife in question was a short vegetable knife and not the weapon that caused Ms Tahana’s death.
[56] Mr Lawry submitted that while the evidence had some probative value if provocation were left, it was prejudicial and inadmissible.
[57] We disagree. The evidence bore directly on the applicant’s conduct in the episode leading up to the fatal stabbing and tends to show a murderous intent.
Inattentive juror
[58] The final event was described in the applicant’s submissions as follows:
On 6 November 2007 a juror fell asleep. … the Judge raised the issue with the jury. I am instructed that the juror appeared asleep for a significant period of time, possibly more than 20 minutes.
[59] Counsel for the applicant submitted that, given that the jury was considering a verdict for murder, if one member had not heard evidence that had been given, the risk of miscarriage was too great to allow the trial to proceed. The episode occurred during the evidence of Mr Moetera just before 12:15 pm on the first day of trial. Mr Moetera had been describing an argument between Ms Tahana and the applicant, in the course of which the applicant was hitting her by punches and kicks to her mouth and face. Ms Tait, leading counsel for the defence, intervened and the jury retired at 12:17pm. While not recorded as having occurred at that point it seems likely that at that stage the Judge gave the following direction:
[1] Counsel have drawn to my attention a juror had been asleep, eyes down, head down towards the ground and so I am told, some audible noises. I am not going to single out the particular juror in question as I suspect he or she will know who he or she was. I just would be grateful Mr Foreman, if during the luncheon adjournment you ensured that everybody is reasonably alert. And if there is a situation where somebody is on medication or something like that, if there is a situation where somebody is having trouble concentrating, or feels they need to drowse off, I would like to know about it. One possible way is to stop the trial every now and again so people can have little snoozes, but if we were to do that the trial would probably go on for a good three weeks or so and that doesn’t commend itself to me.
[2] But if you just have a discussion amongst yourselves because it is important as I stressed to you yesterday you do have to focus on what you are being told.
[60] Crown counsel then reiterated what had been said and went over again physical interchange between the parties, which included Ms Tahana’s punching the applicant and his punching her.
[61] While no cases had been cited in written submissions, the point was potentially of such importance that the Court notified counsel of certain relevant authorities. They included the judgment of the High Court of Australia in Cesan v R (2008) 236 CLR 358, as well as others such as R v Morris [2001] 1 NZLR 1 (CA), R v Briaturi CA661/07 9 October 2008, R v Lin Sen CA467/05 19 October 2006, R v Charles (1979) 68 CR App R 334 , R v Tomar 96/547/Y2 14 April 1997 (EWCA), and a report from the New York Times (17 April 2003).
[62] The starting point for any such challenge is an evidential base. The written submissions which Mr Lawry had taken over from another counsel did not reveal the source of the instruction that the juror appeared asleep “for a significant period of time, possibly more than 20 minutes”. So the only material available for reconsideration is defence counsel’s intervention and the Judge’s prompt and sensible response. There is recorded no objection which, if advanced seriously as a basis for alleging mistrial, would have led to the Judge’s undertaking an investigation and conceivably the filing of affidavits in this Court as occurred in Cesan. There is simply no substantial basis to establish on this score any wrong or miscarriage of justice which is required by s 385 if a trial is to miscarry. There is thus no purpose in our discussing the authorities.
Decision
[63] Since each ground of appeal is without merit the application for extension of time to appeal is dismissed.
Appendix: Police officer’s record of applicant’s statement
QOkay, so they came over. Now, had there been any arguments at the house before they came over?
AYep.
QYeah, between who?
AOh it was Eddie, Eddie started arguing at me
QYeah, this is before Muldoon [the sister of Ms Tahana] came over?
AYeah.
QYeah, about what (shrugs shoulders)
AOh yeah, just being, being smart just you know telling me oh get, get a beer out of the fridge, come, oh he goes “drink up, come on” you know stuff like that.
QYeah, telling you what to do.
AYeah.
QSo you didn’t like that much?
ANo, and I was just sitting there and I was telling my Missus [Ms Tahana] to tell him to stop it.
QYeah.
AYeah, and then, and (1) then my Missus just started on me, because he was talking to my Missus and that and then my Missus just started on me.
QYeah, what was she saying? What did she do to you?
AShe was just telling me to fuck up and she was, she was just saying of you go out and drink and all this kind of stuff, and telling me to fuck up and all that kind of stuff, then I said, oh, I went ah, I went to go, oh you know, I’ve had enough of this, I want to go.
QMm.
A(2) Then I went go [to] use the phone to ring up a couple of people but the phone was engaged the first time, when I rang up to a friend’s place in Otahuhu and then when I rang to my mate’s place well um ah no-one was answering the phone.
QMm.
AThen I came back down and I said to oh, you know, oh I’ll wait, wait here until tonight and you know, to get my money and that because it’s goes into her daughter’s account.
QHm mm.
AI said I’ll wait here until tonight and then I’ll get my money and then I will leave, you know.
QMm.
AAnd she, because she always tells me you know, why don’t you fuck off to your mate’s place and stuff like that once she starts drinking.
QMm.
ABut when she’s sober she’s real good.
QMm.
ABut when she starts drinking she just loses it.
QChanges eh?
AYeah. She just starts slapping me and punching me and stuff like that.
Q(3) Did she do any of that tonight? Did she…
AYeah. Just slap and try and slap me in the face and stuff like that.
QTried to or she did?
AYeah, she did, because I gotta a busted tooth and that. (indicates)
QWhich one was that?
AWhen I, when I got ah jumped in Otahuhu (unclear – speaking over each other)
QOh knocked out?
AYeah.
QYeah, I know the one.
AAnd she just keeps slapping me in the face and stuff like that because I got, head, head, head, head injuries and stuff like that.
QYeah.
AThey said that ah brain tumour or something like that.
QYeah.
AAnd she keeps slapping me in the head and slapping me in the mouth and stuff like that.
QSo how many times did she slap you last night?
AOh about 3 or 4 times.
…
QDifferent times?
AYeah.
QAlright and do you think she was sticking up for Eddie rather than sticking up for you?
AYeah, oh, when, when, when she drinks and stuff like that, then she sticks up for her friends.
QYeah.
A.And stuff like that and more or less cares about her friends and stuff like that.
QMm.
ALike, like when I came back when I was out at my friend’s place, and I came back and um she said, “where were you, you fucking bastard” and stuff like that and then, then I, I was talking to her and I said, oh we’ll talk things out you know, talk these over and stuff like that you know.
QMm.
ASave us arguing all day all the time and I was talking to her and explaining to her about when she drinks and what she does and all that kind of stuff and that'’ the reason why I go, go away for a break you know.
QMm.
Ato get away from all that when she drinks and stuff like that and I told her you know I don’t really want to be here when you drink with your mates and family and stuff like that because those things that you do in front of them, you know, then ah, we talked it all over and everything was, you know, real good, you know me and ah, well I was, (4) when I made that first phone call Eddie and that my girlfriend was arguing with me or um, when her sister Muldoon had arrived.
QMmm.
A…or um I told ah because ah Muldoon was saying that she didn’t like Eddie because of the things that Eddie was doing and stuff like that because Eddie wanted to move over to where we stay and then um Ange said no wait until the morning until I’m sober before you um ask me that because I might say yeah and then wake, wake up in the morning and that and wonder why you, why you doing here.
QHm mm.
AAnd she goes wait until I’m sober, you tell my why you’re leaving the place that you’re staying at and he said that he, he um he got kicked out from the place that he was staying at and then Muldoon said nah, it was, it was lies.
QMm.
AHe didn’t get kicked out, he didn’t pay his ah rent and board and stuff like that. And then, and then you know just, arg, or that.
QYeah.
AIt was just all coming into arguments and stuff like that.
QGoing around in circles.
A(5) You know, then ah, Eddie said to me, he goes oh he goes oh I’ll punch your head in. He goes I’ll step you out and stuff like that. He was trying to step me out and all that kind of stuff.
QMm.
AAnd I told him this is, tell him, you know, don’t, don’t say that kind of stuff, you know.
QMm.
AAnd you know that yelling out “yo, yo”, all that kind of stuff.
QMm.
A(6) And then um and then my girlfriend that said take that take that red jersey off. I said, “What’s wrong with the jersey?” and she goes, “Nah, take it off” and I said, “Why I wear it every other day” you know, I wear any colour clothes you know and I’ll wear it you know every other day, you don’t tell me to take it off.
QMm.
AAnd now people are here and you’re drinking and all that stuff, you’re telling me to take it off.
QMm.
Aand then um, then ah her sister said, “Leave him alone”.
QMm.
AStop picking on him. He’s not doing nothing to you. He’s not doing nothing wrong. Why don’t you let him wear whatever he wants to wear, like she was kind of backing me up.
QMm.
Aand stuff. Helped me out and then yeah, and then she just kept on pulling my jersey and trying to rip my jersey off.
QWho’s that, Angela?
AYeah.
…
QAlright. How do you fell about ah you know your girlfriend’s picking on you, Eddie’s picking on you.
AYeah but
QYeah.
APretty angry.
QPiss you off.
APissed off yeah.
QMake you angry.
AAngry, yeah.
QYeah.
ALike everybody was pissed off, angry and all that stuff, cause of the arguments and all that kind of stuff. Everybody was getting violent.
QMm. Who was getting violent?
AOh Angela was getting violent, violent.
QWith you or with someone else or what?
AWith me and then, and getting angry at ah Eddie.
QMm.
Aand then arguing with her sister.
QSo when you say violent, wh, what do you mean? Just getting really hot and angry?
AYeah, angry.
QShouting and screaming?
AYeah.
QYeah. Calling you names?
AYelling and stuff like that, I try calm my missus down and she goes ‘fuck up you bastard’ and starts swearing at me and, you know pushing me and stuff like that.
QSo what did you do?
ANo I …
QPush her back?
… didn’t do anything I just keep moving my seat away, moving it away from her.
QDid you have a swing at her? Try and punch her?
A(Shakes head) No.
QCause um what it says here during these arguments she’s hitting you, you’re trying to hit her.
ANo.
Qdidn’t hit her?
AJust, nah, just sometimes I just pusher her away when she tries to slap me in the face or in the face and that because of my teeth and stuff like that.
QMm. Yeah.
ACause with my head, I get migraines and stuff like that, cause my head injuries from the fall.
QYeah.
AAnd she just keeps banging me in the head and stuff like that.
QMm.
AAnd I just keep trying to push her back you know just stop her from doing it.
QAlright so we got up to the point where ah there’s been all these arguments going on and then ah Muldoon’s come over with Black and the, and the small child.
AYeah.
QSomewhere around 5 o’clock, I think that’s where we got to.
AYeah.
QSo um what happened when, when Muldoon came over, did things calm down or they get worse?
AYeah they just still the same.
QJust carried on?
AYeah carried on.
QArgument between everyone was it?
AYeah.
QLike Angie and you, then you and Eddie.
AYeah.
Q Angie, Angie and Eddie, were they arguing much?
AOh yeah cause …
QOr was everyone arguing at you?
AOh yeah ah see um, um Angie, Angie, Angie thought that um Eddie was gonna spew up and she goes …
QOh yeah.
A…’You gonna spew up?’ you know, and she said ‘oh you know that’s enough for you, you know, that’s enough drinking for you’.
QMm.
Aand he goes “oh no give me a beer’ you know, and he goes ‘Nah you’re not getting a beer’ and he wanted a beer and stuff like that and she wouldn’t give him a beer or give him a drink or anything.
QBit of an argument about that too?
AYeah, that’s when he started getting more angry and more (unclear).
QYeah.
A(7) then he was you know going ‘oh Black Power this’ and then Angie started saying ‘Black Power this and Black Power that’ and they all saying “Yowl” and both of them saying all that kind of stuff.
QMm. And why is that? Is that just to taunt you?
AAnd then um, and then, and then I just, I just told them to you know just to shush, to stop it, and then um and then I said oh gee, they mentioning some people’s names and I said ‘oh I know them’ you know ‘I, I know these people that you talking about, yeah I’ve met them before’ and stuff like that and then I don’t know she just started getting pissed off and all that and then she just started involving her family into it, saying ‘I’ll get my brothers, you know you don’t know my brothers, you know’.
QMm.
AThey’ll come down there and they’ll smash your head in and stuff like this mm.
QMm. Why do you think they were um talking about the Black Power?
A(Unclear)
Q(Unclear)
AOh they always do that.
…
A.She starts nutting out and swearing at me and yeah punches or slaps me in the face and stuff like that.
Q Mm.
ACause they had a, a party over there, think it was a birthday, yeah birthday party before, for Phillip’s birthday party and she slapped, slapped me in the face and punched me in the jaw and that before.
QYeah. Alright. So the argument’s carried on and ah Muldoon turned up. Did it get any worse or did they just stay the same or did they get better? The arguments
A.Oh … little, oh was …
Q Cause everyone was drinking more and more and more eh.
A Yeah.Q Getting more drunk.
A Yeah.Q (8) So …
AOh but Muldoon was good to me and that, were talking away and she had a look at my papers, reading my ACC papers and all that stuff and trying to help me out with my papers and all that kind of stuff and Angie picked up my papers and chucked them on the ground.
Q Mhm.
AChucked them on the inside the garage, just threw them on the ground.
Q Yeah.
A And she goes ‘Oh what did you do that for?’ you know.Q Mm.
A To Angie.QYeah. Makes you feel … pretty bad when you’re girlfriend does that eh, doesn’t care about your business.
A Nah.
Q So ah …
A but when she’s sober she’s real good.Q Mm.
A but once the alcohol’s involved and it’s a different story.Q(9) alright, now tell me about um the reason Muldoon left, once she, she took the kids and left.
A (Unclear).
Q Bit of a hurry by the sound of it.
AYeah, nah oh everybody arguing and just got too carried away and stuff like that, oh, oh musta thought things were getting outta hand or something.
…
A.So um me and Angie went into um oh she went into the toilet into the toilet where the bath, where the bathroom is, went into the bathroom in there and she goes ‘come here cunt, and next minute I walked in, went into the bathroom and that and then next minute I said ‘oh what’s wrong?’ and I said oh and, and she goes, she goes, she goes 'fuck oh cunt and I was going ‘oh what’s the matter? How, how come you’re doing this? I thought we talked things over before’ and then ah we were talking away and everything and were hugging each other and holding on to each other and I just said to her ‘oh just give me some money tonight and I’ll just go to my friends place oh just for a couple of days then I’ll come back after all the alcohol that’s you know eased down’ and stuff like that. Yeah cause you know I said cause I love you and I don’t want anything to happen or anything like that.
QMm.
AI don’t want us arguing or fighting or anything oke that. And she just held on to me, we’re both hugging and stuff like that, kissing and then, then I turned around and then she went to use the toilet and then we both, we both walked out and everything was alright.(10) And then after sitting down in the garage drinking and that, the arguments just started up again.
QMm. And you said that Muldoon left because she thought things were probably getting outta hand, so does that mean the arguments were getting worse?
AYeah.
Q Shouting, getting louder?
A Yeah.Q What were the arguments about? Still the same old things?
A Yeah same old, just bits and pieces over anything, anything yeah.Q Alright, so now Muldoon’s …
A She just, she just took the kids and went.
…QThe arguments are getting out of hand, getting pretty heated and somewhere around this point that’s when you’ve pulled out your knife isn’t it?
ANah I didn’t have any knife on me.
QAlright. That’s not what we know.
AI didn’t have a knife on me.
QWell where did it come from?
AI don’t even own a knife.
QWell maybe you didn’t get it on but where did you get it from? Where did you get this knife?
AOh (unclear).
QIt’s a pretty big knife.
AWho said that I had a knife.
…
QEddie and Pete both left the address after you get this knife and you said you’re going to kill everyone. You’re sick of all the arguing and everyone abusing, so you decided to
A(Unclear)
Q… take things further and you got this knife.
AI never said I was gonna kill everybody.
QWell you tell me what you said. What did you say? Waving the knife around, saying what?
AAh didn’t say I was gonna kill everybody, you know.
QWhat did you do?
A (Long pause --- no reply)
Solicitors:
Crown Law Office, Wellington
3